Rossova v. Charter Communications, LLC

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LANA ROSSOVA v. CHARTER
COMMUNICATIONS, LLC
(AC 43153)
Alexander, Clark and Palmer, Js.
Syllabus
The plaintiff sought to recover damages for the alleged wrongful termination
of her employment by the defendant, which she claimed was the result
of pregnancy discrimination in violation of the Connecticut Fair Employ-
ment Practices Act (§ 46a-51 et seq.). The defendant hired the plaintiff
to work in its brand and creative strategy department. S, the only other
employee in the department, was her supervisor. According to the plain-
tiff, the two had a good working relationship through the end of her
first month of employment, when the plaintiff informed S that she was
pregnant. Thereafter, the relationship deteriorated. According to the
plaintiff, S no longer invited her to collaborate on projects, became curt
and unfriendly, and began to micromanage and criticize her work. S
also started to document the plaintiff’s alleged performance deficiencies.
Less than five weeks after the plaintiff disclosed her pregnancy, S
informed the plaintiff that her employment was being terminated for
her poor performance. Following a trial to the jury, the jury returned
a verdict in favor of the plaintiff on the issue of liability. Thereafter, the
trial court denied the defendant’s motion for judgment notwithstanding
the verdict and awarded the plaintiff economic damages in addition to
prejudgment interest, postjudgment interest, and attorney’s fees. On
appeal to this court, the defendant challenged only one element of the
plaintiff’s prima facie case, namely, whether she established that the
termination of her employment occurred under circumstances that gave
rise to an inference of discrimination. Held:
1. The trial court properly denied the defendant’s motion for judgment
notwithstanding the verdict:
a. The plaintiff satisfied her initial burden of establishing a prima facie
case of discrimination: there was sufficient evidence in the record from
which a rational fact finder could have inferred that the termination of
the plaintiff’s employment was motivated by discriminatory bias based
on her pregnancy, including evidence of the change in the working
environment and in the relationship between the plaintiff and S following
the plaintiff’s disclosure of her pregnancy.
b. There was sufficient evidence from which the jury reasonably could
have found that the defendant’s stated reason for the termination of the
plaintiff’s employment was pretextual and that the defendant intention-
ally discriminated against the plaintiff on the basis of her pregnancy:
evidence in the record supported the plaintiff’s claims of a drastic change
in the work environment and the working relationship between the
plaintiff and S following the plaintiff’s disclosure of her pregnancy and
there was a lack of documentary evidence of the plaintiff’s allegedly
defective performance prior to her disclosure, with the exception of a
single e-mail, which the jury reasonably could have determined was
of little to no consequence when juxtaposed against the considerable
evidence supporting the plaintiff’s contention that her disclosure marked
a dramatic shift in work environment; moreover, pursuant to the United
States Supreme Court’s holding in Reeves v. Sanderson Plumbing Prod-
ucts, Inc. (530 U.S. 133), the jury was permitted to infer the ultimate
fact of intentional discrimination on the basis of the inferences reason-
ably drawn from the evidence establishing the plaintiff’s prima facie
case and rebutting the defendant’s nondiscriminatory explanation for
the termination of the plaintiff’s employment; furthermore, contrary to
the defendant’s assertion, the plaintiff did not rely solely on evidence
of the temporal proximity of the disclosure of her pregnancy to her
dismissal to establish her claim, as other evidence, even though not
overwhelming, was sufficient when viewed in the light most favorable
to sustaining the verdict for the jury to have inferred that the defendant’s
nondiscriminatory reason was pretextual and that the termination of the
plaintiff’s employment was actually motivated by intentional discrimina-
tion.
2. The trial court’s assessment of the plaintiff’s damages was not clearly
erroneous: the trial court determined that the defendant proved that
the plaintiff had failed to mitigate her damages for only seventeen of
the fifty-two months that she was unemployed on the basis of all of the
evidence before it and, contrary to the defendant’s claim, did not rely
solely on documentary evidence or the lack thereof; moreover, the
burden was on the defendant to prove that suitable work existed and
that the plaintiff did not exercise reasonable diligence to obtain employ-
ment, and the trial court found that the testimony of the defendant’s
expert regarding such matters was entitled to little weight.
Argued November 10, 2021—officially released April 12, 2022
Procedural History
Action to recover damages for, inter alia, alleged
employment discrimination, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the jury before Povoda-
tor, J.; verdict for the plaintiff; thereafter, the court,
Povodator, J., denied the defendant’s motion for judg-
ment notwithstanding the verdict; subsequently, the
court, Hon. Kenneth B. Povodator, judge trial referee,
rendered judgment in accordance with the verdict and
awarded the plaintiff compensatory damages, prejudg-
ment and postjudgment interest and attorney’s fees,
from which the defendant appealed to this court.
Affirmed.
Proloy K. Das, with whom were Patricia E. Reilly
and Lorey Rives Leddy, for the appellant (defendant).
John M. Walsh, Jr., for the appellee (plaintiff).
Opinion
CLARK, J. The defendant, Charter Communications,
LLC, appeals from the judgment of the trial court, ren-
dered after a jury trial, in favor of the plaintiff, Lana
Rossova. The plaintiff brought this action alleging preg-
nancy discrimination in violation of the Connecticut
Fair Employment Practices Act, General Statutes § 46a-
51 et seq., after the defendant terminated her employ-
ment.1 On appeal, the defendant claims that the court
(1) improperly denied its motion for judgment notwith-
standing the verdict because the plaintiff failed to estab-
lish a prima facie case of pregnancy discrimination and
that the defendant’s reason for terminating her employ-
ment was a pretext for discrimination against her on
the basis of her pregnancy and (2) miscalculated the
plaintiff’s damages. We disagree with the defendant’s
claims and, accordingly, affirm the judgment of the
court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. In February, 2013, the defendant hired the plain-
tiff as a senior manager of digital marketing at its Stam-
ford location. Per the defendant’s policy, all new
employees must successfully complete a ninety day
probationary period. The plaintiff began her employ-
ment with the defendant on March 4, 2013, and worked
directly for the director of the brand and creative strat-
egy department, Jennifer Smith. The plaintiff and Smith
were the only two employees in the department. Smith
hired the plaintiff to fill a newly created position with
the expectation that the plaintiff would improve com-
munications between their department and the digital
marketing team and make recommendations to
increase sales.
According to the plaintiff, she and Smith had a great
relationship during the first few weeks of her employ-
ment and had become friends. Smith invited the plaintiff
to her office to collaborate on projects and brainstorm
ideas on a daily basis. They sometimes spent one half
of the day working together in Smith’s office and ate
lunch together. On March 29, 2013, the plaintiff told
Smith that she was pregnant. Smith was happy for the
plaintiff and shared that, coincidentally, she was also
pregnant. Smith thereafter instructed the plaintiff to
speak with the human resources manager, Karina Patel,
to complete paperwork to start the process of finding
a substitute for the plaintiff while she was on maternity
leave. When speaking with Patel, the plaintiff inquired
as to whether she would be able to work from home
if she experienced complications related to her preg-
nancy. The plaintiff previously had experienced a high-
risk pregnancy, which required her to be on bed rest
for more than two months, and her physician had
warned that she would encounter similar complications
in subsequent pregnancies. Patel informed the plaintiff
that, for liability reasons, she would not be permitted
to work from home and then discussed the plaintiff’s
eligibility for leave.
A few days after informing Smith that she was preg-
nant, the relationship between the plaintiff and Smith
deteriorated. Smith became less cordial than she had
been prior to learning that the plaintiff was pregnant.
When interacting with the plaintiff following the disclo-
sure, Smith was curt and unfriendly. Although Smith
still met with the plaintiff, she no longer invited the
plaintiff into her office to brainstorm or collaborate on
projects. According to the plaintiff, Smith never
expressed concerns about the plaintiff’s performance
in the first month of her employment but began to
micromanage her and criticize the quality of her work
after the plaintiff disclosed her pregnancy. The plaintiff
acknowledged that she had made some mistakes in her
work but claimed that Smith never expressed dissatis-
faction with the plaintiff’s overall performance or com-
municated that her employment was in jeopardy of
being terminated. On May 2, 2013, fewer than five weeks
after the plaintiff disclosed her pregnancy, Smith
informed the plaintiff that her employment was being
terminated for poor performance. Smith did not elabo-
rate on the reasons supporting her decision to terminate
the plaintiff’s employment or provide the plaintiff with
any documents explaining her alleged performance
deficiencies.
On September 20, 2013, the plaintiff filed a discrimina-
tion complaint with the Commission on Human Rights
and Opportunities (commission). On October 21, 2014,
after receiving a release of jurisdiction from the com-
mission, the plaintiff commenced the present action,
alleging that the defendant unlawfully had terminated
her employment on the basis of pregnancy, in violation
of General Statutes § 46a-60 (b) (7) (A).2 The parties
agreed to bifurcate the issues of liability and damages
at trial. The issue of liability was tried to a jury on
December 6 and 7, 2016. Following the plaintiff’s case-
in-chief, the defendant moved for a directed verdict on
the ground that the plaintiff had failed to establish a
prima facie case of pregnancy discrimination. The court
reserved its decision on the defendant’s motion pursu-
ant to Practice Book § 16-37.3
On December 9, 2016, the jury returned a verdict in
favor of the plaintiff. Thereafter, the defendant filed
a posttrial motion for judgment notwithstanding the
verdict, claiming that the plaintiff had failed to establish
a prima facie case of discrimination because the evi-
dence was insufficient to establish that the termination
of the plaintiff’s employment occurred under circum-
stances giving rise to an inference of discrimination
and, additionally, that the plaintiff had failed to carry
her ultimate burden of establishing that the defendant’s
reason for terminating her employment was pretextual
and that her dismissal was motivated by unlawful dis-
crimination.4 In its memorandum of decision denying
the defendant’s motion, the court concluded that,
although the evidence was not overwhelming, the jury
reasonably could have inferred from the ‘‘relatively
sharp’’ change in Smith’s attitude toward the plaintiff
and the abrupt commencement of complaints regarding
the plaintiff’s job performance after she disclosed her
pregnancy that the defendant’s proffered reason for
terminating the plaintiff’s employment was pretextual
and that the defendant intentionally had discriminated
against her on the basis of pregnancy.
On November 1, 2018, the issue of damages was tried
to the court. The court awarded the plaintiff $315,187.83
in economic damages, as well as prejudgment and post-
judgment interest and attorney’s fees. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
On appeal, the defendant claims that the court
improperly denied its motion for judgment notwith-
standing the verdict because the plaintiff failed to estab-
lish (1) a prima facie case of pregnancy discrimination
and (2) that the defendant’s reason for terminating the
plaintiff’s employment was a pretext for intentional dis-
crimination.5
We begin our discussion of the defendant’s claim that
it was entitled to judgment as a matter of law by setting
forth the standard of review. ‘‘Appellate review of a
trial court’s refusal to render judgment notwithstanding
the verdict occurs within carefully defined parameters.’’
(Internal quotation marks omitted.) Elliott v. Larson,
81 Conn. App. 468, 472, 840 A.2d 59 (2004). ‘‘We must
consider the evidence, and all inferences that may be
drawn from the evidence, in a light most favorable to the
party that was successful at trial. . . . This standard
of review extends deference to the judgment of the
judge and the jury who were present to evaluate wit-
nesses and testimony.’’ (Citation omitted.) Craine v.
Trinity College, 259 Conn. 625, 635–36, 791 A.2d 518(2002).
‘‘Judgment notwithstanding the verdict should be
granted only if we find that the jurors could not reason-
ably and legally have reached the conclusion that they
did reach.’’ (Internal quotation marks omitted.) Elliott
v. Larson, supra, 81 Conn. App. 472–73. ‘‘Although it is
the jury’s right to draw logical deductions and make
reasonable inferences from the facts proven . . . it
may not resort to mere conjecture and speculation.’’
(Internal quotation marks omitted.) Bagley v. Adel Wig-
gins Group, 327 Conn. 89, 102, 171 A.3d 432 (2017).
‘‘Whether the evidence presented by the plaintiff was
sufficient to withstand a motion for [judgment notwith-
standing the verdict] is a question of law, over which
our review is plenary.’’6 Curran v. Kroll, 303 Conn. 845,
855, 37 A.3d 700 (2012).
‘‘Two further fundamental points bear emphasis.
First, the plaintiff in a civil matter is not required to
prove [her] case beyond a reasonable doubt; a mere
preponderance of the evidence is sufficient. Second,
the well established standards compelling great defer-
ence to the historical function of the jury find their roots
in the constitutional right to a trial by jury.’’ (Internal
quotation marks omitted.) Madigan v. Housing Author-
ity, 156 Conn. App. 339, 362, 113 A.3d 1018 (2015).
Having set forth the applicable standard of review,
we now turn to the general principles governing a claim
of pregnancy discrimination in violation of § 46a-60 (b)
(7) (A). Although the language of Title VII of the Civil
Rights Act of 1964 and the Connecticut Fair Employ-
ment Practices Act differ slightly, our Supreme Court
has observed that the legislature intended to make our
state discrimination laws coextensive with the federal
statute. State v. Commission on Human Rights &
Opportunities, 211 Conn. 464, 469–70, 559 A.2d 1120(1989). Thus, Connecticut courts often look to federal
employment discrimination law for guidance in enforc-
ing our own antidiscrimination statute. Id.; Ayantola v.
Board of Trustees of Technical Colleges, 116 Conn. App.
531, 536, 976 A.2d 784 (2009).
‘‘The framework this court employs in assessing . . .
discrimination claims under Connecticut law was
adapted from the United States Supreme Court’s deci-
sion in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its
progeny.’’ (Internal quotation marks omitted.) Tomick
v. United Parcel Service, Inc., 157 Conn. App. 312, 325,
115 A.3d 1143 (2015), aff’d, 324 Conn. 470, 153 A.3d 615(2016). Under the McDonnell Douglas Corp. burden
shifting analysis, the employee must ‘‘first make a prima
facie case of discrimination. . . . The employer may
then rebut the prima facie case by stating a legitimate,
nondiscriminatory justification for the employment
decision in question. . . . The employee then must
demonstrate that the reason proffered by the employer
is merely a pretext and that the decision actually was
motivated by illegal discriminatory bias.’’ (Internal quo-
tation marks omitted.) Taing v. CAMRAC, LLC, 189
Conn. App. 23, 28, 206 A.3d 194 (2019).
In reviewing a discrimination claim we bear in mind
that ‘‘the question facing triers of fact in [employment]
discrimination cases is both sensitive and difficult
. . . . There rarely will be direct evidence of discrimi-
nation.’’ (Citation omitted; internal quotation marks
omitted.) Board of Education v. Commission on
Human Rights & Opportunities, 266 Conn. 492, 516,
832 A.2d 660 (2003). The McDonnell Douglas Corp.
framework ‘‘is intended to provide guidance to fact
finders who are faced with the difficult task of determin-
ing intent in complicated discrimination cases. It must
not, however, cloud the fact that it is the plaintiff’s
ultimate burden to prove that the defendant intention-
ally discriminated against her because of her [preg-
nancy].’’ Craine v. Trinity College, supra, 259 Conn.
637; see also Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed.
2d 207 (1981).
A
Prima Facie Case of Discrimination
We first address whether the plaintiff established a
prima facie case of pregnancy discrimination. In gen-
eral, ‘‘[i]n 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 employment action; and (4) the
adverse employment action occurred under circum-
stances that give rise to an inference of discrimination.’’
(Internal quotation marks omitted.) Feliciano v. Auto-
zone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015).
If the plaintiff succeeds in establishing a prima facie
case, it creates a rebuttable presumption that the
employer intentionally discriminated against the
employee. St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 506, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); see
also Texas Dept. of Community Affairs v. Burdine,
supra, 450 U.S. 254 n.7. Thereafter, the burden shifts
to the defendant to rebut the presumption raised by
articulating a legitimate, nondiscriminatory reason for
the adverse employment action. St. Mary’s Honor Cen-
ter v. Hicks, supra, 506–507.
On appeal, the defendant does not challenge the
plaintiff’s prima facie case on the grounds that she failed
to prove that she was a member of a protected class,
was qualified for her position, and suffered an adverse
employment action. See footnote 4 of this opinion.
Accordingly, only the fourth element of the plaintiff’s
prima facie case—whether the plaintiff established that
the termination of her employment occurred under cir-
cumstances giving rise to an inference of discrimina-
tion—is at issue in this appeal.
‘‘Circumstances contributing to a permissible infer-
ence of discriminatory intent may include the employ-
er’s continuing, after discharging the plaintiff, to seek
applicants from persons of the plaintiff’s qualifications
to fill that position . . . or [the employer’s] invidious
comments about others in the employee’s protected
group . . . or the more favorable treatment of employ-
ees not in the protected group . . . or the sequence of
events leading to the plaintiff’s discharge . . . or the
timing of the discharge . . . .’’ (Citations omitted.)
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d
Cir. 1994); see also Martinez v. Premier Maintenance,
Inc., 185 Conn. App. 425, 439–40, 197 A.3d 919 (2018).
As our Supreme Court has recognized, however,
‘‘[n]othing in McDonnell Douglas Corp. . . . limits the
type of circumstantial evidence that may be used to
establish the fourth prong of the test for a prima facie
case of [pregnancy] discrimination.’’ Craine v. Trinity
College, supra, 259 Conn. 640–41.
The plaintiff primarily relies on the sequence of
events over the course of her employment with the
defendant to establish that her dismissal occurred
under circumstances giving rise to an inference of dis-
crimination. Specifically, the plaintiff testified that, in
the first few weeks of her employment, Smith was very
friendly to her, spent hours working collaboratively
with her on projects, and developed a great working
relationship with her. Furthermore, prior to the disclo-
sure of her pregnancy, Smith neither informed the plain-
tiff that she was not meeting Smith’s expectations nor
otherwise indicated that her performance was deficient.
The plaintiff testified, however, that after disclosing
her pregnancy to Smith, Smith’s attitude toward her
abruptly changed and Smith began to micromanage her
and criticized her work. Smith subsequently terminated
her employment, approximately five weeks after the
plaintiff had disclosed that she was pregnant.
The defendant contends that the plaintiff’s evidence
was insufficient to give rise to an inference that her
dismissal was the result of discrimination. We disagree
and conclude that there is sufficient evidence in the
record from which a rational fact finder could infer
that the termination of the plaintiff’s employment was
motivated by discriminatory bias toward the plaintiff
based on her pregnancy.
Evidence of the working environment and the rela-
tionship between the plaintiff and Smith prior to, and
after, the plaintiff’s disclosure of her pregnancy,
namely, Smith’s (1) sudden micromanagement of the
plaintiff, (2) brusque and cold manner toward the plain-
tiff, (3) abrupt dissatisfaction with the plaintiff’s job
performance, and (4) discharging of the plaintiff shortly
after learning of the plaintiff’s pregnancy, was sufficient
to create an inference that the defendant unlawfully
discriminated against the plaintiff on the basis of preg-
nancy when it terminated her employment.
Viewing the plaintiff’s evidence in its entirety, the
jury reasonably could have inferred that a nexus existed
between the plaintiff’s disclosure of her pregnancy and
the defendant’s termination of her employment. In the
context of a wrongful discharge action, this court pre-
viously has held that, for purposes of a prima facie
case, a plaintiff may establish an inference of discrimi-
nation by demonstrating that the protected activity was
followed close in time by an adverse action. See, e.g.,
Li v. Canberra Industries, 134 Conn. App. 448, 454–57,
39 A.3d 789 (2012); see also El Sayed v. Hilton Hotels
Corp., 627 F.3d 931, 933 (2d Cir. 2010) (temporal prox-
imity between employee filing complaint and subse-
quent discharge may give rise to inference sufficient to
establish prima facie case of retaliation); Asmo v.
Keane, Inc., 471 F.3d 588, 594 (6th Cir. 2006) (two
months between supervisor learning plaintiff was preg-
nant and termination of plaintiff’s employment was suf-
ficient to establish nexus for purposes of prima facie
case of discrimination).
Because the plaintiff put forth sufficient evidence
to establish that the termination of her employment
occurred under circumstances giving rise to an infer-
ence of discrimination, the plaintiff satisfied her initial
burden of establishing a prima facie case of discrimina-
tion. The trial court, therefore, properly denied the
defendant’s motion for judgment notwithstanding the
verdict on that ground.
B
Pretext and Intentional Discrimination
We next turn to whether there was sufficient evidence
to support the jury’s finding that the defendant inten-
tionally discriminated against the plaintiff on the basis
of her pregnancy. The defendant claims that the court
improperly denied its motion for judgment notwith-
standing the verdict because there was no evidentiary
basis to support the jury’s determination that the defen-
dant’s proffered reason for terminating the plaintiff’s
employment was pretextual or that the defendant inten-
tionally discriminated against the plaintiff.7 The defen-
dant argues that, even assuming that the plaintiff
adduced evidence sufficient to support a finding that
the defendant’s explanation was pretextual, the plaintiff
failed to adduce any concrete evidence, beyond the
inferences relied on in her prima facie case, to establish
that her dismissal was motivated by intentional discrim-
ination and that the jury, therefore, resorted to imper-
missible speculation and conjecture in returning its ver-
dict in favor of the plaintiff. The defendant relatedly
argues that the plaintiff did not adduce evidence beyond
the temporal proximity between her pregnancy disclo-
sure and her dismissal to prove that the defendant’s
explanation was a pretext for intentional discrimina-
tion, which is insufficient as a matter of law to establish
a discrimination claim. See Govori v. Goat Fifty, L.L.C.,
519 Fed. Appx. 732, 734 (2d Cir. 2013). For the following
reasons, we conclude that there was sufficient evidence
from which the jury reasonably could have found that
the defendant discriminated against the plaintiff on the
basis of her pregnancy.
We first set forth the relevant legal principles that
guide our analysis of this claim. Once a plaintiff has
adduced evidence sufficient to establish a prima facie
case of discrimination, the burden shifts to the defen-
dant to rebut the presumption raised, by articulating a
legitimate, nondiscriminatory reason for the adverse
employment action. Taing v. CAMRAC, LLC, 189 Conn.
App. 23, 28, 206 A.3d 194 (2019). The defendant’s ‘‘bur-
den is one of production, not persuasion; it can involve
no credibility assessment.’’ (Internal quotation marks
omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn.
74. Although the defendant must produce sufficient evi-
dence to support its nondiscriminatory explanation, it
bears emphasizing that the ultimate burden of persuad-
ing the fact finder ‘‘that the defendant intentionally dis-
criminated against the plaintiff remains at all times with
the plaintiff.’’ (Internal quotation marks omitted.)
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
If the defendant carries its burden of production, the
presumption raised by the plaintiff’s prima facie case
‘‘drops from the case’’; (internal quotation marks omit-
ted) St. Mary’s Honor Center v. Hicks, supra, 509 U.S.
507; and the sole remaining issue becomes ‘‘discrimina-
tion vel non . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Reeves v. Sanderson Plumbing
Products, Inc., supra, 530 U.S. 143. In other words, the
plaintiff must persuade the trier of fact, by a preponder-
ance of the evidence, that the defendant’s justification
for her dismissal ‘‘is merely a pretext and that the deci-
sion actually was motivated by illegal discriminatory
bias.’’ Craine v. Trinity College, supra, 259 Conn. 637.
‘‘[The plaintiff] may succeed in this either directly by
persuading the [jury] that a discriminatory reason more
likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy
of credence.’’ Texas Dept. of Community Affairs v.
Burdine, supra, 450 U.S. 256.
Although the presumption created by the prima facie
case disappears after the defendant has produced evi-
dence sufficient to establish a nondiscriminatory reason
for the adverse employment action, ‘‘the plaintiff may
rely upon the evidence used in establishing [her] prima
facie case to prove the ultimate issue of [pregnancy]
discrimination.’’ Craine v. Trinity College, supra, 259
Conn. 644. Furthermore, ‘‘[t]he factfinder’s disbelief of
the reasons put forward by the defendant (particularly
if disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the prima facie case,
suffice to show intentional discrimination. Thus, rejec-
tion of the defendant’s proffered reasons will permit
the trier of fact to infer the ultimate fact of intentional
discrimination, and . . . upon such rejection, [n]o
additional proof of discrimination is required . . . .’’
(Internal quotation marks omitted.) Jackson v. Water
Pollution Control Authority, 278 Conn. 692, 706, 900
A.2d 498 (2006), quoting St. Mary’s Honor Center v.
Hicks, supra, 509 U.S. 511.
The following additional facts, viewed in the light
most favorable to the plaintiff, are relevant to our reso-
lution of the defendant’s claim. At trial, the defendant
contended that it terminated the plaintiff’s employment
because of her poor performance. Smith testified that,
after she had received feedback from Patel on the plain-
tiff’s first day of work that the plaintiff appeared disin-
terested and unengaged at orientation, Smith and Patel
frequently discussed among themselves Smith’s con-
cerns about the plaintiff’s performance. Smith began
documenting the plaintiff’s performance issues when,
in Smith’s opinion, the plaintiff’s performance did not
improve following later discussions with the plaintiff
about her deficiencies.
The defendant placed into evidence a chart generated
by Smith that summarized the plaintiff’s performance
issues, as well as e-mails that purported to support
Smith’s observations. Among other things, Smith noted
that the plaintiff’s performance was deficient in the
following areas: communication, knowledge of the
defendant’s brand and products, organization, attention
to detail, being proactive, and adhering to the expected
work schedule. Significantly, all of the documents intro-
duced into evidence by the defendant were dated on
or after March 29, 2013, the day that the plaintiff dis-
closed her pregnancy to Smith. Moreover, the plaintiff
produced evidence calling into question many of the
defendant’s claims about her deficient performance.
With respect to the defendant’s claims about the
plaintiff’s schedule, Smith testified that she did not
instruct the plaintiff to arrive for work by 8:30 a.m.
Instead, she testified that she told the plaintiff that she
generally arrived to work between 8 and 8:30 a.m. and
that she therefore had expected that the plaintiff would
arrive at approximately the same time. The plaintiff
routinely arrived at approximately 9 a.m. until Smith
e-mailed the plaintiff on April 5, 2013, to inform her
that she was expected to attend daily meetings with
the digital team at 8:30 a.m. The plaintiff regularly met
with Smith in the first few weeks of her employment,
often for many hours at a time, and it was only after
disclosing her pregnancy that Smith told her that she
was expected to attend the digital team’s morning meet-
ings and that she must arrive to work by 8:30 a.m. The
plaintiff had assumed that her hours were that of a
‘‘regular job, nine to five,’’ and was never told otherwise
until after she informed Smith about her pregnancy.
The plaintiff started attending the digital team’s daily
morning meetings after receiving Smith’s e-mail about
her expected work hours.
With respect to the defendant’s claim concerning the
plaintiff’s communication issues, Smith noted that the
plaintiff did not effectively communicate with her when
she had childcare obligations requiring her to arrive
late or leave early. In her April 5, 2013 e-mail to the
plaintiff, Smith asked the plaintiff for the first time to
communicate her schedule. The plaintiff subsequently
provided Smith with her schedule for the following two
weeks and adhered to that schedule. Smith testified
that she did not receive any further communications
from the plaintiff about any scheduling conflicts. Smith,
however, could not say definitively whether the plaintiff
continued to have childcare related scheduling issues
or whether any such issues were resolved, which, if
resolved, would obviate any need for the plaintiff to
keep Smith apprised of any such issues.
Smith also documented the plaintiff’s lack of organi-
zational skills, proactivity, and attention to detail. Spe-
cifically, she testified that, on March 29, 2013, the plain-
tiff hastily responded to a request for marketing
materials from another department within the company
and, in so doing, did not send all of the marketing images
or file sizes requested. On April 22, 2013, Smith also
received feedback from the director of the digital team,
Brad Stamulis, that the plaintiff had not been proactive
in providing his team with information about when they
could expect certain marketing materials. The plaintiff
testified, however, that she was unable to provide that
information because, after e-mailing Smith to express
that she urgently needed Smith to respond about the
outstanding materials, Smith had failed to reply.
The defendant also produced evidence that, on April
10, 2013, the plaintiff gave approval to an external
agency to publish an advertisement with the wrong
hyperlink. Smith testified that, had Smith not recog-
nized and rectified the advertisement the plaintiff had
approved, it would have directed consumers to a prod-
uct that was unavailable in the market segment where
the advertisement was to be published. According to
Smith, such an error potentially could have exposed
the defendant to legal action. The plaintiff acknowl-
edged that she made a ‘‘ ‘huge mistake,’ ’’ but also testi-
fied that the error was partly due to a problem with
the notification feature in the defendant’s project man-
agement system that had caused her to overlook a com-
munication from someone seeking to confirm that the
hyperlink was correct.
With respect to the plaintiff’s knowledge of the defen-
dant’s brand and products, Smith testified that, on April
12, 2013, the plaintiff provided incorrect information to
an external marketing agency, which demonstrated a
fundamental lack of understanding about the defen-
dant’s rate plans. The plaintiff testified, however, that
the defendant did not provide her with official training
on the defendant’s pricing policies until April 18, 2013.
In sum, Smith asserted that the plaintiff was in proba-
tionary status throughout her employment and that, per
the defendant’s policy, Smith was not required to notify
the plaintiff that her performance was deficient or warn
her that she was in jeopardy of her employment being
terminated. Smith testified that, although she did not
document the exact dates or details regarding the dis-
cussions she had with the plaintiff and did not provide
the plaintiff with any written documentation of her con-
cerns with the plaintiff’s performance, she frequently
had talked with the plaintiff about her performance
issues over the course of her employment and had fairly
apprised the plaintiff of her deficiencies. Additionally,
Smith and Patel testified that they reviewed the chart
that Smith generated and made the decision to termi-
nate the plaintiff’s employment because her perfor-
mance had not improved. Smith and Patel further testi-
fied that the plaintiff’s employment was terminated
because she had made basic errors and did not satisfac-
torily meet the expectations of the senior manager posi-
tion.
The plaintiff did not dispute that she had made some
mistakes during her employment with the defendant.
The plaintiff, however, testified that Smith never had
expressed dissatisfaction with her performance or oth-
erwise indicated that she was not meeting Smith’s
expectations. Rather, Smith told the plaintiff that she
understood that the plaintiff was still learning and occa-
sionally would make mistakes. According to the plain-
tiff, it was not until she disclosed her pregnancy that
Smith began to critique and micromanage her work
on every project that she was assigned. The plaintiff
testified that her dismissal came as a ‘‘complete shock’’
and that she never had been shown the documents
regarding her performance deficiencies until after she
filed a complaint with the commission.
Having set forth the relevant facts, we first review
whether the plaintiff adduced evidence from which the
jury could have found that the defendant’s nondiscrimi-
natory reason for terminating the plaintiff’s employ-
ment was pretextual. ‘‘A plaintiff may show pretext by
demonstrating such weaknesses, implausibilities,
inconsistencies, incoherences, or contradictions in the
employer’s proffered legitimate reasons for its action
that a reasonable [fact finder] could rationally find them
unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory rea-
sons.’’ (Internal quotation marks omitted.) Stubbs v.
ICare Management, LLC, 198 Conn. App. 511, 523, 233
A.3d 1170 (2020).
Having reviewed the record, we conclude that there
was sufficient evidence for the jury to have concluded
that the defendant’s stated reason for the plaintiff’s
dismissal was pretextual. To wit, the plaintiff estab-
lished that Smith did not begin documenting her alleg-
edly deficient performance until after she informed
Smith that she was pregnant. Although Smith testified
that she had numerous conversations with the plaintiff
about her performance before the plaintiff disclosed
that she was pregnant, none of the documents admitted
into evidence supports that claim. Moreover, the plain-
tiff testified that, prior to disclosing her pregnancy,
Smith never expressed dissatisfaction with her perfor-
mance and that Smith began to micromanage and criti-
cize her work only after learning that the plaintiff was
pregnant. As the trial court observed in its memoran-
dum of decision denying the defendant’s motion for
judgment notwithstanding the verdict, the jury was not
required to assume that the rather abrupt identification
of performance problems, as evidenced by the defen-
dant’s documents and the plaintiff’s testimony, was a
mere coincidence. The jury reasonably could infer from
the timing of Smith’s marked dissatisfaction with the
plaintiff’s performance, which coincided with the plain-
tiff’s disclosure of her pregnancy, that the termination
of the plaintiff’s employment was more likely motivated
by discriminatory bias than by her alleged performance
deficiencies.
The defendant contends that its uncontroverted proof
of a performance issue identified on the same day the
plaintiff disclosed her pregnancy, by someone without
knowledge of the plaintiff’s pregnancy, contradicts any
inference that the defendant’s nondiscriminatory rea-
son for terminating her employment was pretextual.
Specifically, the defendant asserts that the March 29,
2013 e-mail indicating that the plaintiff did not provide
all of the marketing materials requested by another
department within the company conflicts with the plain-
tiff’s claim that she did not receive any feedback about
her performance until after she disclosed her pregnancy
and, consequently, that the plaintiff’s evidence was
insufficient to prove that the defendant’s justification
for terminating her employment was false. Evidence,
however, is not insufficient simply because it is conflict-
ing or inconsistent. State v. Douglas F., 145 Conn. App.
238, 244, 73 A.3d 915, cert. denied, 310 Conn. 955, 81
A.3d 1181 (2013). Moreover, it is well established that
‘‘[i]t is the jury’s right to accept some, none or all of
the evidence presented. . . . It is the [jury’s] exclusive
province to weigh the conflicting evidence and to deter-
mine the credibility of witnesses.’’ (Internal quotation
marks omitted.) Cusano v. Lajoie, 178 Conn. App. 605,
609, 176 A.3d 1228 (2017). Accordingly, the jury reason-
ably could have determined that the March 29, 2013
e-mail was of little to no consequence, especially when
juxtaposed against the considerable evidence support-
ing the plaintiff’s contention that her pregnancy disclo-
sure marked a dramatic shift in the work environment.
There was also evidence that, although not directly
refuting the alleged performance issues, may have nev-
ertheless persuaded the jury that the defendant’s non-
discriminatory justification was not the real reason
underlying the plaintiff’s dismissal. The plaintiff’s evi-
dence, if believed, cast doubt on some of the defendant’s
claims about her performance issues. With respect to
the plaintiff’s failure to adhere to the required work
schedule, for example, the plaintiff testified that she
was never informed that she was to report to work at
8:30 a.m. prior to disclosing her pregnancy. The plain-
tiff’s testimony that she and Smith spent many hours
collaborating in the first few weeks of the plaintiff’s
employment and, according to the plaintiff, Smith never
discussed with the plaintiff that she was reporting late
to work until after learning the plaintiff was pregnant,
supports a reasonable inference that the plaintiff’s time-
liness was not a legitimate concern. See Board of Edu-
cation v. Commission on Human Rights & Opportuni-
ties, supra, 266 Conn. 513–14 (there is distinction
between fact finder second-guessing employer’s busi-
ness judgment, which would be improper, and fact
finder concluding that employer’s justifications are not
credible). Although Smith disputed the plaintiff’s
account, the jury was not required to accept Smith’s
testimony. See State v. Brown, 198 Conn. App. 630, 637,
233 A.3d 1258, cert. denied, 335 Conn. 942, 237 A.3d
730 (2020). The plaintiff also testified that Stamulis’
feedback about her lack of proactivity at a morning
meeting resulted from Smith’s failure to respond to the
plaintiff’s questions about certain marketing materials.
Additionally, Smith’s own testimony appeared to under-
mine her assertion that the plaintiff failed to keep her
apprised of scheduling conflicts. Smith could not state
definitively whether the plaintiff’s childcare obligations
had been resolved, which would have made it unneces-
sary to keep Smith apprised of any such conflicts.
We conclude that the evidence at trial was sufficient
for a rational jury to reject the defendant’s proffered
explanation and find that the plaintiff’s dismissal was
actually motivated by discrimination. The jury reason-
ably could have found that, prior to the plaintiff’s disclo-
sure of her pregnancy to Smith, the plaintiff and Smith
often worked collaboratively for many hours and had
developed a good relationship; Smith was cordial when
interacting with the plaintiff; and Smith never indicated
to the plaintiff that she was not meeting expectations
or criticized the plaintiff’s work. Within a few days of
disclosing her pregnancy to Smith and informing Patel,
who met regularly with Smith to discuss the plaintiff’s
alleged performance issues, that she would almost cer-
tainly require an extended leave of absence because of
potential pregnancy complications, Smith began to treat
the plaintiff differently. After informing Smith that she
was pregnant, Smith was curt and unfriendly toward
the plaintiff, no longer invited the plaintiff into her office
to collaborate on projects, micromanaged the plaintiff,
became critical of the plaintiff’s work performance and
terminated the plaintiff’s employment fewer than five
weeks later. On the basis of this evidence, the jury
reasonably could have found that the timing of Smith’s
abrupt dissatisfaction with the plaintiff’s performance
was suspicious and that there was a nexus between
the plaintiff’s pregnancy and the termination of her
employment. This inference is further buttressed by the
fact that Smith extensively documented the plaintiff’s
alleged performance deficiencies only after the plaintiff
disclosed her pregnancy.
Although there may well be other reasonable infer-
ences that can be drawn from the plaintiff’s evidence,
we do not agree that the jury must have resorted to
speculation and conjecture in reaching its verdict. As
our Supreme Court has observed, ‘‘[p]roof of a material
fact by inference from circumstantial evidence need not
be so conclusive as to exclude every other hypothesis.
It is sufficient if the evidence produces in the mind of
the trier a reasonable belief in the probability of the
existence of the material fact. . . . [A]n inference need
not be compelled by the evidence; rather, the evidence
need only be reasonably susceptible of such an infer-
ence.’’ (Internal quotation marks omitted.) Curran v.
Kroll, supra, 303 Conn. 857. We find these principles
particularly compelling in the context of a discrimina-
tion claim where a plaintiff is often constrained to rely
on circumstantial evidence to prove intent. See, e.g.,
Chambers v. TRM Copy Centers Corp., supra, 43 F.3d
37 (‘‘[e]mployers are rarely so cooperative as to include
a notation in the personnel file that their actions are
motivated by factors expressly forbidden by law’’ (inter-
nal quotation marks omitted)).
At oral argument before this court, the defendant
contended that, assuming, arguendo, there was suffi-
cient evidence to establish that the defendant’s prof-
fered justification was pretextual, pursuant to Craine
v. Trinity College, supra, 259 Conn. 625, and Perez-
Dickson v. Bridgeport, 304 Conn. 483, 43 A.3d 69 (2012),
the plaintiff was also required to adduce additional evi-
dence beyond the inferences relied on in support of
her prima facie case in order to prevail. We are not
persuaded by the defendant’s reading of Craine or
Perez-Dickson. Neither of those decisions stands for
the broad proposition that, if a plaintiff successfully
rebuts the defendant’s nondiscriminatory reason for the
adverse employment action, a plaintiff must produce
additional evidence of discriminatory intent beyond
that which may be inferred from the plaintiff’s prima
facie case in order to prevail in an employment discrimi-
nation action. Rather, our Supreme Court’s conclusions
in Craine and in Perez-Dickson turned on the specific
facts and circumstances of those cases.
Furthermore, in Craine, the court was guided by
the United States Supreme Court’s holding in Reeves v.
Sanderson Plumbing Products, Inc., supra, 530 U.S.
148. In Reeves, the court held that a plaintiff’s prima
facie case, combined with sufficient evidence for a rea-
sonable fact finder to reject the employer’s nondiscrimi-
natory explanation for the adverse employment action,
permits the trier of fact to conclude that the employer
unlawfully discriminated. Id.; see also Craine v. Trinity
College, supra, 259 Conn. 645. Stated differently, on
establishing that the employer’s asserted reason for its
action is pretextual, the plaintiff is not required to put
forth additional evidence of discrimination to prevail.8
The defendant has not directed us to any legal authority
that would make Reeves inapplicable to the present
appeal. The jury, therefore, on rejecting the defendant’s
reason, was permitted to infer the ultimate fact of inten-
tional discrimination on the basis of the inferences rea-
sonably drawn from the evidence rebutting the defen-
dant’s explanation and establishing the plaintiff’s prima
facie case.
The defendant additionally claims that the plaintiff
relied solely on evidence of ‘‘temporal proximity’’ to
prove her discrimination claim, without bringing forth
any additional evidence that the defendant’s proffered
legitimate reason for its action was pretextual, which
it argues is insufficient as matter of law. The defendant
cites Govori v. Goat Fifty, L.L.C., supra, 519 Fed. Appx.
734, for the proposition that, although proximity
between protected activity and an adverse employment
action may be sufficient to establish a prima facie case
of discrimination, such evidence is, by itself, insufficient
to establish that an employer’s nondiscriminatory rea-
sons for dismissing an employee are pretextual.
In contending that the plaintiff relied solely on evi-
dence of temporal proximity to establish her pregnancy
discrimination claim, the defendant mistakenly con-
flates the concept of temporal proximity evidence with
evidence establishing a sequence of events that tran-
spired following the plaintiff’s disclosure of her pro-
tected status. Evidence contrasting the plaintiff’s work-
ing environment prior to and after she disclosed her
pregnancy, however, is more than evidence merely
establishing temporal proximity between the plaintiff’s
disclosure and her subsequent dismissal. Whereas tem-
poral proximity between two events alone may be suffi-
cient to establish a prima facie case, the broader
sequence of events leading up to and including an
adverse employment decision provides important con-
text that may establish whether there exists a nexus
between those two events. In other words, the close
proximity between when Smith learned about the plain-
tiff’s pregnancy and the plaintiff’s subsequent dismissal
raises a permissible inference that there exists a rela-
tionship between those events. The stark contrast
between the working environment prior to and after the
plaintiff disclosed her pregnancy constitutes evidence
beyond mere ‘‘temporal proximity’’ and supports the
inference of unlawful discrimination.
Although, as the trial court noted, the plaintiff’s evi-
dence was not particularly overwhelming, viewed in
the light most favorable to sustaining the verdict, we
conclude that there was sufficient evidence from which
the jury could have inferred that the defendant’s nondis-
criminatory reason for terminating the plaintiff’s
employment was pretextual and that the plaintiff’s dis-
missal was actually motivated by intentional discrimina-
tion. In so concluding, we are mindful of the well recog-
nized principles that compel our deference to the
historical function of the jury. See, e.g., Jackson v. Water
Pollution Control Authority, supra, 278 Conn. 704 (‘‘[i]f
the jury could reasonably have reached its conclusion,
the verdict must stand, even if this court disagrees with
it’’ (internal quotation marks omitted)); Elliott v. Lar-
son, supra, 81 Conn. App. 475 (‘‘[w]e test the propriety
of a motion for a judgment notwithstanding the verdict
in accordance with the principle that we give the evi-
dence at trial the most favorable reasonable construc-
tion in support of the verdict to which it is entitled’’
(internal quotation marks omitted)).
Because ‘‘it is apparent that there was some evidence
upon which the jury might reasonably [have] reach[ed]
[its] conclusion’’; (internal quotation marks omitted)
Salaman v. Waterbury, 246 Conn. 298, 304, 717 A.2d 161(1998); the trial court properly denied the defendant’s
motion for judgment notwithstanding the verdict.
II
The defendant’s final claim is that the court miscalcu-
lated the plaintiff’s damages because it improperly
failed to exclude from the plaintiff’s award ten months
of back pay for which the plaintiff did not produce
documents to prove her efforts to obtain employment.
The defendant’s claim is predicated on its belief that the
court based its decision to exclude seventeen months
of back pay entirely on the plaintiff’s failure to produce
documents supporting her request for damages for
those months. The defendant therefore argues that the
court similarly should not have awarded back pay for
any month in which the plaintiff failed to produce docu-
mentary evidence that she attempted to mitigate her
damages by actively seeking employment. We disagree
with the defendant’s interpretation of the court’s deci-
sion and conclude that the court’s assessment of dam-
ages was not clearly erroneous.
Before addressing the merits of the defendant’s claim,
we set forth the relevant legal principles and standard
of review that guide our analysis. It is axiomatic that
a plaintiff has a duty to make reasonable efforts to
mitigate damages. Cweklinsky v. Mobil Chemical Co.,
267 Conn. 210, 223, 837 A.2d 759 (2004). An employer
seeking to reduce or avoid a back pay award ‘‘bears
the burden of demonstrating that a plaintiff has failed to
satisfy the duty to mitigate.’’ (Internal quotation marks
omitted.) Gaither v. Stop & Shop Supermarket Co.,
LLC, 84 F. Supp. 3d 113, 123 (D. Conn. 2015); see also
Ann Howard’s Apricots Restaurant, Inc. v. Commis-
sion on Human Rights & Opportunities, 237 Conn. 209,
229, 676 A.2d 844 (1996). The employer must therefore
demonstrate that ‘‘suitable work existed, and that the
employee did not make reasonable efforts to obtain it.’’
Clarke v. Frank, 960 F.2d 1146, 1152 (2d Cir. 1992).
Whether a plaintiff made a reasonable effort to miti-
gate her damages under the circumstances of a particu-
lar case is a question of fact. Dunleavey v. Paris Ceram-
ics USA, Inc., 97 Conn. App. 579, 582, 905 A.2d 703(2006). ‘‘In a case tried before a court, the trial judge
is the sole arbiter of the credibility of the witnesses
and the weight to be given specific testimony.’’ (Internal
quotation marks omitted.) Aldin Associates Ltd. Part-
nership v. Hess Corp., 176 Conn. App. 461, 484, 170
A.3d 682 (2017). ‘‘[W]e will upset a factual determination
of the trial court only if it is clearly erroneous. The trial
court’s findings are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witnesses.
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.’’
(Internal quotation marks omitted.) Dunleavey v. Paris
Ceramics USA, Inc., supra, 583.
The following additional facts and procedural history
are relevant to our resolution of the defendant’s claim.
Following her dismissal, the plaintiff was unable to
obtain employment until September, 2017. During the
damages portion of the trial, which was tried to the
court, the plaintiff sought approximately fifty-two
months of back pay.9 For twenty-seven of the approxi-
mately fifty-two months that she was unemployed, the
plaintiff did not produce documents supporting her
claim that she made efforts to mitigate her damages.
The plaintiff worked with several recruiters, utilized
employment websites, regularly spoke with acquain-
tances about potential opportunities, and networked
with former coworkers approximately once a week to
learn of available jobs. She failed, however, to maintain
a complete set of records of her search efforts. Instead,
she attempted to document her efforts to find employ-
ment by combining information from her e-mails, net-
working websites, employer websites, the contact list
on her cell phone, and memory. The plaintiff also
acknowledged that she inadvertently may have failed
to produce some documents that would further demon-
strate her mitigation efforts due to the volume of e-mails
that were in her inbox.10
A vocational expert, Rona Wexler, testified on behalf
of the defendant. Wexler opined that the plaintiff’s
search for employment was ineffective, inconsistent,
and evidenced minimal effort. According to Wexler,
the marketing industry was still recovering from the
recession in 2013 when the plaintiff was seeking
employment, but the demand for employees with digital
marketing experience increased in the following few
years. She was unaware of how many opportunities
actually existed in the geographical area where the
plaintiff sought employment during the time the plaintiff
was unemployed.
In its memorandum of decision, the court found that
the plaintiff had failed to record and preserve docu-
ments relating to her mitigation efforts, which it
weighed in its determination of damages. As to Wexler’s
testimony, the court found that it lacked specificity with
regard to the number and types of comparable positions
that were available in the marketing industry when the
plaintiff was searching for employment, thus diminish-
ing the persuasiveness of Wexler’s conclusions about
the plaintiff’s search efforts. Because the plaintiff had
provided no documents and ‘‘no satisfactory explana-
tion’’ regarding the absence of tangible proof concern-
ing her search during significant periods of time, the
court found that the defendant had proven that the
plaintiff failed to satisfy her duty to mitigate damages
during certain months when she was unemployed. Spe-
cifically, the court found that the plaintiff did not
actively participate in the job market from May to
December, 2013, when she was on bed rest and postpar-
tum. The court also found that there was a pattern of
minimal to no activity during the summer months in
2014, 2015, and 2016. Accordingly, the court awarded
the plaintiff approximately thirty-five months of back
pay, not the fifty-two months of back pay that she was
seeking.11
On appeal, the defendant claims that the court
improperly awarded the plaintiff ten months of back
pay because the plaintiff did not provide any tangible
proof of her efforts to obtain employment during those
months. The defendant argues that the trial court’s deci-
sion awarding the plaintiff back pay for those ten
months is inconsistent with, and contrary to, the court’s
decision to exclude seventeen months of back pay
based on the plaintiff’s failure to produce physical evi-
dence supporting her mitigation efforts during those
months. The defendant mischaracterizes the court’s
findings.
The court’s memorandum of decision makes clear
that it did not determine that the plaintiff had failed to
mitigate her damages for a total of seventeen months
on the basis of the plaintiff’s failure to produce physical
evidence alone. The court took into account the plain-
tiff’s failure to adequately document or preserve evi-
dence of her efforts with respect to her job search,
stating that it goes ‘‘to the weight of the evidence pre-
sented and at least in some measure to the credibility
of the plaintiff.’’ Accordingly, although the plaintiff testi-
fied that she consistently searched for employment, the
court concluded, on the basis of all of the evidence it
heard concerning her damages, not just the documen-
tary evidence or lack thereof, that the plaintiff did not
make a reasonable effort to mitigate her damages for
seventeen months while she was unemployed.
We therefore conclude that the court’s decision to
award back pay for some months in which the plaintiff
did not corroborate her mitigation efforts with tangible
proof was not clearly erroneous. It was for the court,
as the finder of fact, to weigh the plaintiff’s testimony
with respect to her overall efforts to obtain employment
against the lack of tangible evidence of those efforts.
See Llera v. Commissioner of Correction, 156 Conn.
App. 421, 440, 114 A.3d 178, cert. denied, 317 Conn. 907,
114 A.3d 1222 (2015). Moreover, it was the defendant’s
burden to prove that suitable work existed and that the
plaintiff did not exercise reasonable diligence to obtain
employment. The court found that Wexler’s testimony
on each of those points was entitled to little weight.
On the basis of our review of the record, we conclude
that the court’s finding that the defendant had proven
that the plaintiff had failed to mitigate her damages for
only seventeen of the fifty-two months that she was
unemployed was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also asserted a claim of negligent infliction of emotional
distress, which was resolved on a motion for summary judgment rendered in
favor of the defendant. The plaintiff does not challenge that ruling on appeal.
2
General Statutes § 46a-60 (b) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section . . . (7) [f]or an
employer, by the employer or the employer’s agent: (A) [t]o terminate a
woman’s employment because of her pregnancy . . . .’’
3
Practice Book § 16-37 provides in relevant part: ‘‘Whenever a motion for
a directed verdict made at any time after the close of the plaintiff’s case-
in-chief is denied or for any reason is not granted, the judicial authority is
deemed to have submitted the action to the jury subject to a later determina-
tion of the legal questions raised by the motion. . . .’’
4
The defendant also claimed that it was entitled to judgment notwithstand-
ing the verdict because the plaintiff failed to prove that she was qualified
for her position, as is required to establish a prima facie case of employment
discrimination. But see Perez-Dickson v. Bridgeport, 304 Conn. 483, 514
n.34, 43 A.3d 69 (2012) (courts require showing that plaintiff is qualified
for position only when it is germane to issues involved). Additionally, the
defendant moved to set aside the verdict on the ground that, before the
court instructed the jury to reconcile the discrepancy, the jury’s initial
answer to an interrogatory was inconsistent with its verdict and, thus,
demonstrated that the jury was confused, warranting a new trial. The trial
court rejected both claims, and the defendant does not appeal from those rul-
ings.
5
In its principal brief, the defendant specifically claimed that the court
improperly denied its motion for a directed verdict on the ground that the
plaintiff failed to establish a prima facie case of discrimination. As we
previously noted in this opinion, the court deferred its decision on the
defendant’s motion, which, pursuant to our rules of practice, was ‘‘the
equivalent of a denial of the motion for purposes of subsequent proceedings
. . . .’’ Riley v. Travelers Home & Marine Ins. Co., 333 Conn. 60, 72, 214
A.3d 345 (2019). The defendant renewed its motion for a directed verdict
in its posttrial motion for judgment notwithstanding the verdict, and, accord-
ingly, the court’s ruling on the posttrial motion became the controlling
disposition for purposes of this appeal. See id., 73.
6
Relying on various appellate cases, the parties assert that the proper
standard of review of the defendant’s claim is the abuse of discretion stan-
dard. As this court recently has explained, however, although our opinions
sometimes have referred to the abuse of discretion standard in the context
of reviewing a trial court’s decision regarding a motion for judgment notwith-
standing the verdict, where a party challenges a trial court’s ruling on a
motion for judgment notwithstanding the verdict on the basis of insufficient
evidence, our review is plenary. Cockayne v. Bristol Hospital, Inc., 210
Conn. App. 450, 457–59, A.3d (2022), petition for cert. filed (Conn.
February 28, 2022) (No. 210338); see also Pellet v. Keller Williams Realty
Corp., 177 Conn. App. 42, 50 n.9, 172 A.3d 283 (2017) (standard of review
governing claims that trial court improperly granted motion for directed
verdict became conflated with standard of review governing challenges to
trial court’s granting or denying motion to set aside verdict, but plenary
review applies when party moves for directed verdict on basis of insufficient
evidence).
7
In its principal brief, the defendant asserts that the ‘‘trial court erred in
denying [the defendant’s] motion to set aside the jury verdict on liability’’
and ‘‘should have . . . entered judgment in favor of [the defendant]’’ and
that the proper standard of review on appeal of the trial court’s denial of
a motion to set aside the verdict is abuse of discretion. (Emphasis added.)
We agree that the appropriate standard of appellate review with respect to
a trial court’s ruling on a motion to set aside a verdict is abuse of discretion.
See Madigan v. Housing Authority, supra, 156 Conn. App. 348. We interpret
the defendant’s claim on appeal, however, as seeking review of the court’s
denial of its motion for judgment notwithstanding the verdict on the basis
of insufficient evidence, which we review de novo.
8
The United States Supreme Court, however, also noted that the plaintiff
would not be entitled to judgment as a matter of law on putting forth
sufficient evidence to prove the defendant’s explanation was pretextual,
stating: ‘‘This is not to say that such a showing by the plaintiff will always
be adequate to sustain a jury’s finding of liability. Certainly there will be
instances where, although the plaintiff has established a prima facie case
and set forth sufficient evidence to reject the defendant’s explanation, no
rational factfinder could conclude that the action was discriminatory.’’
(Emphasis in original.) Reeves v. Sanderson Plumbing Products, Inc., supra,
530 U.S. 148; see also St. Mary’s Honor Center v. Hicks, supra, 509 U.S. 511(fact finder’s rejection of employer’s legitimate nondiscriminatory reason
for its actions does not compel judgment for plaintiff).
9
The court calculated the plaintiff’s presumptive damages, net of unem-
ployment compensation she had received, as $468,279.07.
10
There were approximately 40,000 e-mails in the plaintiff’s inbox. She
had conducted a keyword search to find documents to comply with the
defendant’s request for production.
11
The court found that the plaintiff was not entitled to back pay for eight
months in 2013 and three summer months in years 2014, 2015, and 2016.