ALVORD, J.
In this employment discrimination case, the plaintiff, James Walker, appeals from the summary judgment rendered by the trial court in favor of the defendant, the Department of Children and Families (department). The plaintiff claims that the court improperly failed to conclude that there was a genuine issue of material fact with respect to his allegations that the department terminated his employment on the basis of his race, color and gender in violation of General Statutes § 46a-60 of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. We affirm the judgment of the trial court.
The following facts, as provided in the pleadings and the evidence submitted by the parties in support of the department's motion for summary judgment and the plaintiff's opposition thereto, are relevant to the disposition of the plaintiff's appeal. The plaintiff, an African-American male, was hired by the department as a social worker on June 14, 2004. When hired, he was notified that he was required to successfully complete a ten month working test period that would end on May 1, 2005. Initially, he was assigned to a unit supervised by Dakibu Muley. He was not required to perform any court work related to his clients at that time. His first performance evaluation, dated August 30, 2004, was prepared by Muley and was generally favorable. In December, 2004, the plaintiff was transferred to a different unit supervised by Lisa Llanes. In addition to servicing children and families in need, the plaintiff now was required, inter alia, to prepare documents to be filed in court and to attend court proceedings. When the plaintiff began working in the new unit, Llanes advised him of the importance of being organized; preparing documents ahead of schedule so that they could be reviewed by her, the program supervisor and the department's attorney prior to filing them in court; attending scheduled appearances in court; and time management. Llanes had "supervision meetings" with the plaintiff once a week.
On February 22, 2005, the plaintiff missed a permanency plan hearing scheduled before the court, Hon. Frederica S. Brenneman, judge trial referee, at the Superior Court for Juvenile Matters in New Haven. Judge Brenneman ordered that the worker assigned to the case, i.e., the plaintiff, submit a letter explaining his absence. In his letter in response to Judge Brenneman's order, the plaintiff stated: "I apologize and I can't offer an excuse for missing the court hearing.... I have implemented a system that will help me be better organized so this will not happen again." Less than two weeks later, the plaintiff missed another court hearing scheduled for March 1, 2005, again before Judge Brenneman. Because of his absence, Judge Brenneman dismissed the department's motion to modify protective supervision to commitment, and protective supervision of the child at issue was allowed to expire. Approximately one week later, the plaintiff failed to file in court a motion to maintain commitment and permanency plan that was due on March 9, 2005. Because the motion was not timely filed, the court, Turner, J., set a new
By letter dated April 29, 2005, the department terminated the plaintiff from his employment as a social worker. The letter provided as follows: "The purpose of this letter is to advise you that you are being dropped during your working test period as a Social Worker Trainee for the Department of Children and Families, effective May 13, 2005, close of business. This action is being taken based upon your less than satisfactory performance of your duties and responsibilities." After exhausting the department'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 race, color and gender.
On July 8, 2011, the department filed a motion for summary judgment claiming that it was "entitled to a judgment as a matter of law because the plaintiff has failed to provide any evidence that would support his claims that he was discriminated against based on his race, color or gender." Additionally, in support of its motion, the department filed a memorandum of law, two affidavits with attached exhibits,
The court issued its well reasoned and comprehensive memorandum of decision on January 26, 2012. The court concluded that the plaintiff failed to make a prima
Our review of the trial court's decision to grant the department's motion for summary judgment is plenary. See Macellaio v. Newington Police Dept., 145 Conn.App. 426, 429, 75 A.3d 78 (2013). "The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings....
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts,
"The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue.... The movant has the burden of showing 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 successfully, 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 material fact together with the evidence disclosing the existence of such an issue.... The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Citation omitted; emphasis in original; internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464-65, 976 A.2d 23 (2009).
"[T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.... Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue.... Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.... Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact....
"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 conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-203, 663 A.2d 1001 (1995). "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. See Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980) (`[i]ndeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists')." Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
In support of his claim of disparate treatment,
In the portions of his deposition transcript submitted with his opposition to the motion for summary judgment, the plaintiff recounted two additional incidents of alleged disparate treatment. He testified that he was asked once or twice to accompany a white female coworker to her home visits in a black urban area because she was concerned about her safety. He further testified that another white coworker, during that worker's working test period, received assistance from his supervisor and other white coworkers when he became frustrated with the department's computerized data system and indicated that he wanted to quit. When that coworker asked for additional assistance with the system, it was provided to him.
The trial court concluded that the plaintiff met only two of the four prongs necessary
In its analysis of prong two, i.e., whether the plaintiff was qualified for the position of social worker, the court stated that the department had produced uncontradicted evidence that the plaintiff had been advised of his responsibilities concerning time management, attending scheduled court appearances and timely submitting documents to his supervisors for review prior to the court deadlines for filing those documents. Nevertheless, the plaintiff repeatedly failed to perform satisfactorily by missing court appearances, failing to file a motion in court on the designated day, and failing to prepare his documents in time for review by his supervisors. These failures resulted in adverse consequences to the department. The plaintiff did not deny these incidents, and he gave no excuses, other than simply having forgotten the court dates or deadlines. Moreover, the plaintiff's deficiencies in performance occurred during his working test period. Permanent employment as a social worker was expressly conditioned on the successful completion of his ten month working test period.
With respect to the fourth prong to establish a prima facie case, i.e., the requirement to show that the adverse action occurred under circumstances giving rise to an inference of discrimination,
The judgment is affirmed.
In this opinion LAVINE, J., concurred.
ROBINSON, J., concurring. I concur in the result.
Practice Book § 17-46 provides that supporting and opposing affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
"When a [complainant] alleges disparate treatment, liability depends on whether the protected trait ... actually motivated the employer's decision.... That is, the [complainant's protected trait] must have actually played a role in [the employer's decisionmaking] process and [have] had a determinative influence on the outcome." (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 505, 832 A.2d 660 (2003).
In its memorandum of decision, the court noted that the remark was addressed to the plaintiff's experience in working with his clients, that his interaction with his clients was not the articulated reason for his termination, and that "evidence of this statement alone does not allow for the inference that the plaintiff was treated differently because of his race. The plaintiff ... does not present any evidence showing that other individuals' races and genders were not mentioned when evaluating client interactions."
We agree with the court that this single statement, which was the entirety of the plaintiff's direct evidence of discriminatory motivation, is insufficient to raise a triable issue of discriminatory intent. No evidence was offered regarding the circumstances surrounding Llanes remark or the context in which it was given. The plaintiff did not depose Llanes, and he did not allege that he suffered any adverse consequences as a result of his interaction with that family. Without more, any inference of discriminatory intent would be based on nothing more than mere speculation or conjecture.
Although this case is based solely on Connecticut law, we use federal precedent concerning employment discrimination for guidance in our analysis of discrimination claims under the Connecticut Fair Employment Practices Act. See Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).
"When considering whether a plaintiff has raised an inference of discrimination by showing that she was subjected to disparate treatment, we have said that the plaintiff must show she was `similarly situated in all material respects' to the individuals with whom she seeks to compare herself." Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000). "What constitutes `all material respects'... varies somewhat from case to case and ... must be judged based on (1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness.... In other words, there should be an `objectively identifiable basis for comparability.' ... Hence, the 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." (Citations omitted.) Id., at 40.
