Feliciano v. Autozone, Inc. ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DORIS FELICIANO v. AUTOZONE, INC.
(SC 19200)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued December 1, 2014—officially released March 31, 2015
Josephine Smalls Miller, for the appellant (plaintiff).
Emery K. Harlan, pro hac vice, with whom were
Proloy K. Das and, on the brief, Andrew L. Houlding,
for the appellee (defendant).
Opinion
ROGERS, C. J. The issue in this certified appeal is
whether the Appellate Court properly affirmed the trial
court’s summary judgment rendered in favor of the
defendant, Autozone, Inc., on the claims of unlawful
discrimination on the basis of national origin, religion,
sex, disability and race filed by the plaintiff, Doris Felici-
ano. The plaintiff brought this action pursuant to the
Connecticut Fair Employment Practices Act, General
Statutes § 46a-51 et seq., alleging that the defendant,
her employer, had engaged in disability discrimination
and sexual harassment, and had unlawfully terminated
her employment on the basis of her national origin,
religion and race. The defendant filed a motion for sum-
mary judgment claiming that the plaintiff had failed to
make out a prima facie case of discrimination on any
of her claims. The trial court granted the motion and
rendered judgment for the defendant. The plaintiff
appealed to the Appellate Court, which affirmed the
judgment of the trial court. Feliciano v. Autozone, Inc.,
142 Conn. App. 756, 774, 66 A.3d 911 (2013). We then
granted the plaintiff’s application for certification to
appeal on the following issue: ‘‘Did the Appellate Court
properly affirm the trial court’s entry of summary judg-
ment on all counts of the plaintiff’s complaint?’’ Felici-
ano v. Autozone, Inc., 310 Conn. 908, 76 A.3d 625 (2013).
We reverse the judgment of the Appellate Court
affirming the judgment of the trial court only with
respect to the plaintiff’s claim of sexual harassment in
the workplace, and affirm the judgment in all other
respects.
The opinion of the Appellate Court sets forth the
following undisputed facts and procedural history. ‘‘The
plaintiff is a black female who was born in the U.S.
Virgin Islands and practices the Rastafarian religion. As
part of her religion, she wears her hair in dreadlocks.
The plaintiff was employed by the defendant, first as a
sales clerk and later as a supervisor, for a few years
before being transferred to the defendant’s Bloomfield
location (store). Michael Balboni became the manager
of the store in 2005, while the plaintiff was a supervisor
there. The defendant had a company wide customer
loyalty reward card program in place for purchases
made by customers. In May, 2007, the defendant’s auto-
matic loss prevention computer program flagged twenty
transactions between April 28 and May 9, 2007, involv-
ing the same customer loyalty card number. Nineteen of
the twenty transactions were listed as being processed
under the plaintiff’s customer service representative
number.
‘‘On May 16, 2007, the plaintiff was accused by the
defendant of improperly using a customer loyalty
reward card for her own use. Patricia Vasquez, a loss
prevention specialist, was sent by the defendant to
investigate the situation. Vasquez questioned the plain-
tiff in the presence of Erwin Ballou, a district manager
of the defendant. At the interview, the plaintiff admitted
that she signed into the cash register and left it signed
in under her customer service representative number
for other employees to use. The plaintiff further admit-
ted that she was ‘wrong’ for letting other employees
work under her customer service representative num-
ber. Vasquez forwarded her report, including the plain-
tiff’s statements, to the defendant’s staff attorney,
Timothy P. Harrison, in Tennessee. He was not
acquainted with the plaintiff. Harrison recommended
that the plaintiff’s employment be terminated, and
Azeem Sikandar, regional manager for the defendant,
followed the recommendation by calling for the termi-
nation of the plaintiff’s employment on the ground that
she had violated the defendant’s loss prevention policy.
The plaintiff’s employment was terminated on May 22,
2007. . . .
‘‘Following her termination, the plaintiff filed a timely
complaint with the Connecticut [C]ommission on
[H]uman [R]ights and [O]pportunities on July 27, 2007,
within 180 days of the actions attributed to the defen-
dant, and with the federal Equal Employment Opportu-
nity Commission. The federal Equal Employment
Opportunity Commission issued a notice of right to sue
on April 7, 2009, and the Connecticut [C]ommission on
[H]uman [R]ights and [O]pportunities released jurisdic-
tion on April 14, 2009. On April 30, 2009, the plaintiff
commenced this action in the trial court pursuant to
the Connecticut Fair Employment Practices Act.1
‘‘The defendant moved for summary judgment on all
five counts of the plaintiff’s complaint and, following
oral argument by counsel, the court issued its memoran-
dum of decision and entered its corresponding judg-
ment on February 10, 2012, rendering summary
judgment on all counts in favor of the defendant.’’ (Foot-
notes altered.) Feliciano v. Autozone, Inc., supra, 142
Conn. App. 758–60.
The plaintiff then appealed to the Appellate Court
claiming that the trial court improperly had rendered
summary judgment on all five counts of her complaint
because there were genuine issues of material fact as
to all of her claims. Id., 760. The Appellate Court, as
did the trial court, construed the plaintiff’s complaint
as raising claims that the defendant had failed to reason-
ably accommodate her claimed disability; id., 762; had
engaged in sexual harassment in the workplace; id.,
764–65; and had unlawfully terminated her employment
on the basis of her national origin, religion and race.2
Id., 769. With respect to the disability discrimination
claim, the Appellate Court determined that the trial
court properly had determined that the plaintiff had
failed to establish a genuine issue of material fact as
to whether she was disabled within the meaning of the
Connecticut Fair Employment Practices Act. Id., 764.
With respect to the plaintiff’s claim of sexual harass-
ment, the Appellate Court concluded that the trial court
improperly had assumed that the plaintiff had intended
to bring a hostile work environment claim pursuant to
General Statutes § 46a-60 (a) (8) (C);3 id., 766–67; see
footnote 1 of this opinion; and affirmed the judgment
on the alternative ground that ‘‘[t]he defendant was not
on notice of the statutory basis for the plaintiff’s claim’’;
Feliciano v. Autozone, Inc., supra, 142 Conn. App. 767;
because the plaintiff had not brought the claim pursuant
to a specific provision of § 46a-60. Id., 767–68. With
respect to the plaintiff’s unlawful termination claims,
the Appellate Court upheld the judgment of the trial
court that the plaintiff had failed to establish a genuine
issue of material fact as to whether the plaintiff’s termi-
nation occurred under ‘‘circumstances . . . that give
rise to an inference of discrimination’’ on the basis of
her national origin, religion or race. Id., 774.
The plaintiff claims on appeal to this court that the
Appellate Court improperly determined that: (1) she
had failed to make out a prima facie case that her
employment was unlawfully terminated on the basis of
her national origin, religion or race; and (2) she could
not prevail on her sexual harassment claim because the
defendant was not on notice of the statutory basis of
the claim.4 We reject the plaintiff’s first claim but agree
with her second claim. We further conclude that the
plaintiff has established a genuine issue of material fact
as to whether she was subjected to a hostile work
environment on the basis of her sex.
We begin by setting forth the applicable standard of
review. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case. . . . Finally, the scope
of our review of the trial court’s decision to grant the
plaintiff’s motion for summary judgment is plenary.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) H.O.R.S.E. of Connecticut, Inc. v.
Washington, 258 Conn. 553, 558–60, 783 A.2d 993
(2001).
With these principles in mind, we first address the
plaintiff’s claim that the defendant unlawfully termi-
nated her employment on the basis of her national ori-
gin, religion or race. The legal standards governing
discrimination claims involving adverse employment
actions are well established. ‘‘The framework this court
employs in assessing disparate treatment discrimina-
tion claims under Connecticut law was adapted from
the United States Supreme Court’s decision in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny. Lyon
v. Jones, 291 Conn. 384, 406–407, 968 A.2d 416 (2009).
We look to federal law for guidance on interpreting
state employment discrimination law, and the analysis
is the same under both. State v. Commission on Human
Rights & Opportunities, 211 Conn. 464, 469–70, 559
A.2d 1120 (1989). Craine v. Trinity College, 259 Conn.
625, 637 n.6, 791 A.2d 518 (2002). Under this analysis,
the employee must first make a prima facie case of
discrimination. Id., 637. In order for the employee to
first make a prima facie case of discrimination, the
plaintiff must show: (1) the plaintiff is a member of a
protected class; (2) the plaintiff was qualified for the
position; (3) the plaintiff suffered an adverse employ-
ment action; and (4) the adverse employment action
occurred under circumstances that give rise to an infer-
ence of discrimination. See McDonnell Douglas Corp.
v. Green, supra, 802. The employer may then rebut the
prima facie case by stating a legitimate, nondiscrimina-
tory justification for the employment decision in ques-
tion. Craine v. Trinity College, supra, 637. This burden
is one of production, not persuasion; it can involve
no credibility assessment. . . . Board of Education v.
Commission on Human Rights & Opportunities, 266
Conn. 492, 506, 832 A.2d 660 (2003). The employee then
must demonstrate that the reason proffered by the
employer is merely a pretext and that the decision actu-
ally was motivated by illegal discriminatory bias.
Craine v. Trinity College, supra, 637.’’ (Internal quota-
tion marks omitted.) Feliciano v. Autozone, Inc., supra,
142 Conn. App. 769–70.
The Appellate Court concluded that the plaintiff had
established the first three prongs of the McDonnell
Douglas Corp. framework; id., 770; but had not estab-
lished a genuine issue of material facts as to the fourth
prong, that the circumstances surrounding her termina-
tion gave rise to an inference of discrimination on the
basis of her national origin, religion or race. Id., 774.
The plaintiff contends that, to the contrary, the evidence
showing that the defendant treated other similarly situ-
ated employees more favorably than her was sufficient
to establish a genuine issue of material fact. See Perez-
Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69
(2012) (to establish that adverse employment action
took place under circumstances permitting inference
of discrimination, ‘‘a litigant may present circumstantial
evidence from which an inference may be drawn that
similarly situated individuals were treated more favor-
ably than she was’’); see also id., 519 (to raise inference
of discrimination on basis of disparate treatment, evi-
dence must reveal ‘‘a stark pattern of discrimination’’
[internal quotation marks omitted]).5 The plaintiff fur-
ther contends that she presented ample evidence of
Balboni’s discriminatory animus toward her, and that
this animus may be imputed to the defendant. See Staub
v. Proctor Hospital, 562 U.S. 411, 131 S. Ct. 1186, 1194,
179 L. Ed. 2d 144 (2011) (even when person who made
adverse employment decision was not personally moti-
vated by discriminatory animus, animus of another
agent of employer can be attributed to employer if that
agent’s animus was proximate cause of adverse action);
see also Cone v. Longmont United Hospital Assn., 14
F.3d 526, 531 (10th Cir. 1994) (to establish that employ-
ment action was discriminatory on basis of coworkers’
discriminatory statements, plaintiff ‘‘must demonstrate
a nexus exists between these allegedly discriminatory
statements and the [employer’s] decision to termi-
nate’’); Diamantopulos v. Brookside Corp., 683 F. Supp.
322, 327 (D. Conn. 1988) (‘‘[n]o matter how illogical or
irrational a decision might be, it is only actionable if
the employer harbors a discriminatory animus and that
animus is one of the causes of the adverse action taken
against the employee’’ [emphasis added]).
The following additional evidence, viewed in the light
most favorable to the nonmoving plaintiff for purposes
of reviewing the trial court’s grant of the defendant’s
motion for summary judgment, is relevant to these
claims. Balboni repeatedly referred to the plaintiff as
an ‘‘f’ing Jamaican’’; suggested that Jamaicans live in
grass huts, wear grass skirts, drink out of coconut shells,
and eat cats and dogs; ridiculed the plaintiff’s dread-
locks and suggested that her hair was dirty; told the
plaintiff that there is no God and that she just had
‘‘false hopes’’; suggested that all Rastafarians steal; and
mocked the plaintiff by wearing a dreadlocks wig and
saying, ‘‘I’m . . . a Rastafarian. Watch me because I
steal.’’
The computerized loss prevention report that flagged
twenty transactions at the defendant’s store involving
the same customer loyalty card number, nineteen of
which had been processed under the plaintiff’s cus-
tomer service representative number, also showed that
the remaining transaction had been processed under
the customer service representative number of another
employee, Shaun Davis. There is no evidence that Davis
was investigated for wrongdoing. In addition, the plain-
tiff testified at a deposition, the transcript of which
was attached as an exhibit to her opposition to the
defendant’s motion for summary judgment, that she
had complained to Balboni, Ballou and Sikandar that
another employee, Sakari Pina, as well as other employ-
ees, had been stealing from the store, and that no action
was taken against those employees. The plaintiff also
testified that she had warned Balboni that he should
not hire a particular young male whose full name the
plaintiff could not remember because he had previously
stolen from the store. In response, Balboni accused the
plaintiff of being a racist because the person was white.
Balboni hired the person, who was later terminated for
stealing. Finally, the plaintiff testified at her deposition
that Balboni regularly had implied in conversations with
her that she was stealing from the store in the weeks
preceding her termination.
With respect to the plaintiff’s claim that she estab-
lished that there was a genuine issue of material fact
as to whether she was treated differently than other
similarly situated employees on the basis of her national
origin, religion and race, we are not persuaded.
Although she claims that she was treated less favorably
than Davis, the loss prevention report showing multiple
transactions for the same customer loyalty card under
the plaintiff’s and Davis’ customer service representa-
tive numbers appears to show that the transaction
under Davis’ number was a credit in the amount of a
previous transaction under the plaintiff’s number, while
all of the transactions under the plaintiff’s number were
purchases. Thus, there is no evidence that Davis
engaged in theft. In any event, the plaintiff has pointed
to no evidence regarding Davis’ national origin, religion
or race.6 Thus, there is no basis for any inference that
Davis was treated more favorably than the plaintiff
because of these characteristics. Similarly, with respect
to her claim that she was treated worse than the other
employees who were under suspicion of theft, there is
no evidence of their national origin, religion or race,
except with respect to Pina, who was African-American
and who was not fired, and the young male who Balboni
had hired against the plaintiff’s advice, who was white
and who was fired. Thus, far from evincing the stark
pattern of disparate treatment that is required to raise
an inference of discriminatory treatment; Perez-Dick-
son v. Bridgeport, supra, 304 Conn. 517–19; the evi-
dence in the present case shows no pattern of disparate
treatment on the basis of national origin, religion or
race.
We further conclude that, although there was ample
evidence that Balboni had treated the plaintiff in a despi-
cable manner because of her perceived national origin,
religion or race, the Appellate Court properly concluded
that there was no evidence of a causal connection
between Balboni’s discriminatory animus and the
defendant’s termination of the plaintiff’s employment.
Specifically, although there was evidence that Balboni
had implied to the plaintiff that he believed that she
was stealing items from the store, there is no evidence
that Balboni ever reported his suspicions to anyone
else or that he influenced the investigation that resulted
in the plaintiff’s termination in any way.7 Indeed, the
plaintiff does not seriously contend that there was affir-
mative evidence of a connection between Balboni’s
discriminatory animus and her termination. Rather, she
contends that the jury reasonably could have disbe-
lieved the defendant’s evidence that Balboni was not
involved in any way in the decision to terminate her
employment, and such disbelief would be sufficient to
raise a genuine issue of material fact as to Balboni’s
involvement. We disagree.
Although disbelief of an employer’s explanation for
an adverse employment action, in combination with
the plaintiff’s prima facie case of discrimination, may,
under some circumstances, be sufficient to meet the
plaintiff’s ultimate burden of proving intentional dis-
crimination; Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 147 L. Ed. 2d
105 (2000) (‘‘[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’’ [emphasis
added; internal quotation marks omitted]); Board of
Education v. Commission on Human Rights & Oppor-
tunities, supra, 266 Conn. 510 (‘‘an employment dis-
crimination claim will not necessarily fail, as a matter
of law, when the only evidence of discrimination is the
evidence necessary to establish a prima facie case and
evidence that the employer’s legitimate, nondiscrimina-
tory reasons are false’’ [emphasis added]); disbelief of
the employer’s evidence is not sufficient to establish a
prima facie case of discrimination in the first instance.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519,
113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) (‘‘[i]t is not
enough . . . to disbelieve the employer; the factfinder
must believe the plaintiff’s explanation of intentional
discrimination’’ [emphasis in original]); Board of Edu-
cation v. Commission on Human Rights & Opportuni-
ties, supra, 505 (burden is on plaintiff to establish prima
facie case that ‘‘the adverse action occurred under cir-
cumstances giving rise to an inference of discrimina-
tion’’); Board of Education v. Commission on Human
Rights & Opportunities, supra, 517 (inference of dis-
crimination may not be based on ‘‘mere conjecture or
surmise’’); see also State v. Hart, 221 Conn. 595, 605,
605 A.2d 1366 (1992) (‘‘jury may not infer the opposite
of a witness’ testimony solely from its disbelief of that
testimony’’ [emphasis added]). In the absence of any
affirmative evidence of a causal connection between
Balboni’s discriminatory animus toward the plaintiff
and the defendant’s termination of her employment, no
inference of the defendant’s discriminatory intent can
be made. See Staub v. Proctor Hospital, supra, 131 S.
Ct. 1194; Cone v. Longmont United Hospital Assn.,
supra, 14 F.3d 531; Diamantopulos v. Brookside Corp.,
supra, 683 F. Supp. 327. Accordingly, we affirm the
judgment of the Appellate Court upholding the trial
court’s ruling that the plaintiff had failed to establish
a genuine issue of material fact as to whether the defen-
dant unlawfully had terminated her employment on the
basis of her national origin, religion or race.
We next turn to the plaintiff’s claim that the Appellate
Court improperly concluded that she could not prevail
on her sexual harassment claim because the defendant
was not on notice of the statutory basis of the claim.
We agree with the plaintiff. We further conclude that
the trial court improperly determined that the plaintiff
had failed to establish a genuine issue of material fact
as to whether she was subjected to a hostile work
environment because of her sex.
The following additional facts and procedural history
are relevant to this claim. Count three of the plaintiff’s
complaint was captioned: ‘‘CONNECTICUT FAIR
EMPLOYMENT PRACTICES ACT (SEXUAL HARASS-
MENT).’’ Paragraphs one through twenty-one of count
three incorporate the corresponding paragraphs from
count one alleging discrimination on the basis of
national origin. The relevant paragraphs alleged that
Balboni had rubbed his body against the plaintiff and,
after the plaintiff complained and told him to stop,
he sent her a text message stating, ‘‘you [bitch].’’ The
plaintiff also alleged that, when she was on sick leave
because of pain in her knee, Balboni had stated to other
employees that ‘‘she was a man and could not feel pain
and that she should just ‘suck it up’ and get back to
work.’’ In addition, she alleged that Balboni had ridi-
culed her by wearing a dreadlocks wig and telling her
that that was how she looked.8
During discovery, the plaintiff stated in response to
the defendant’s interrogatories that Balboni had repeat-
edly bumped into her in a manner that was not acciden-
tal, and rubbed up against her.9 She further stated that
Balboni ‘‘came up behind her and rubbed his crotch
against her buttocks and then moved on.’’ After Balboni
sent her the text message that stated, ‘‘you bitch,’’ the
plaintiff confronted him and Balboni first said that he
was joking, and then denied that he had sent the mes-
sage. Balboni also commented that Pina had a ‘‘big ass’’
and the plaintiff had a ‘‘flat ass.’’
At her deposition, the plaintiff testified that Balboni
repeatedly had tried to play with her hair and that he
had rubbed up against her ‘‘about three times.’’ In addi-
tion, she testified that Balboni touched his crotch on
more than one occasion, and would ‘‘play with’’ Pina
and ‘‘smack her on the ass.’’ Balboni also spoke about
Pina having had abortions and stated, ‘‘at least that
second one wasn’t [mine].’’ When women would come
into the defendant’s store, he would compare their
appearance and say things like ‘‘I ain’t had a black, juicy
piece like that,’’ and ‘‘I don’t discriminate. I do black,
white, Puerto Rican, anything.’’ When the plaintiff com-
plained to her supervisor, Brandon Casey, about Bal-
boni’s rubbing up against her, Casey told her to ‘‘stop
being petty’’ and said that Balboni ‘‘probably didn’t
mean it.’’ The plaintiff also complained about Balboni’s
conduct to Ballou and another supervisor, for whom
the plaintiff could recall only his first name as Leo.
Ballou told her that ‘‘these things are not really rele-
vant.’’ There is no evidence that Leo responded in any
way to the plaintiff’s complaint. In her complaint to
the Commission on Human Rights and Opportunities,
which was also presented as evidence during the pro-
ceedings on the defendant’s motion for summary judg-
ment, the plaintiff represented that much of Balboni’s
conduct occurred between February, 2007 and May,
2007.10
The defendant argued in its memorandum of law in
support of its motion for summary judgment that the
plaintiff’s sexual harassment claim should be ‘‘sum-
marily dismissed’’ because she had alleged in count
three only that she had been discharged for her religious
beliefs. The defendant further argued that the evidence
produced by the plaintiff, including the statements in
the plaintiff’s interrogatory responses and her deposi-
tion testimony, did not create a genuine issue of mate-
rial fact as to whether Balboni’s conduct was
sufficiently severe or pervasive to create a hostile work
environment. In her opposition to the defendant’s
motion for summary judgment, the plaintiff contended
that, to the contrary, the evidence was sufficient to
establish ‘‘a genuine question of material fact whether
these events, taken as a whole, worsened [the plaintiff’s]
working environment or constituted sexual harass-
ment.’’ In its reply brief in support of the motion for
summary judgment, the defendant again contended that
‘‘[c]onduct far more egregious than the conduct [that
the plaintiff complained of] has been found by courts
to not reach the necessary level of severe or pervasive
conduct sufficient to alter an employee’s terms or condi-
tions of employment.’’
The trial court concluded in its memorandum of deci-
sion that the plaintiff’s reference to religious discrimina-
tion in count three of the complaint alleging sexual
harassment was ‘‘an obvious scrivener’s error . . . .’’
The court further concluded that, ‘‘although the plaintiff
does not specifically reference the sexual harassment
provision of . . . § 46a-60 (a) (8), the court assumes
her intention was to rely on that provision in making
a claim of sexual harassment. . . . Based on her depo-
sition testimony and other exhibits submitted in opposi-
tion to the motion for summary judgment, the plaintiff’s
sexual harassment claim fits most logically into the
category of a claim of ‘hostile or offensive work environ-
ment.’ ’’ The court ultimately concluded that the plain-
tiff’s evidence did not create a genuine issue of material
fact as to whether the sexual harassment was suffi-
ciently severe or pervasive to establish ‘‘a valid hostile
work environment claim within the meaning of . . .
§ 46a-60 (a) (8).’’ As we have indicated herein, the
Appellate Court upheld the trial court’s ruling on the
alternative ground that the trial court improperly had
assumed that the plaintiff intended to bring a hostile
work environment claim pursuant to § 46a-60 (a) (8)
(C) because ‘‘[t]he defendant was not on notice of the
statutory basis for the plaintiff’s claim’’; Feliciano v.
Autozone, Inc., supra, 142 Conn. App. 767; when the
plaintiff had not specifically cited that provision. Id.,
768.
We disagree. Although the plaintiff’s complaint was
certainly not a model of clarity, it is clear that the
defendant understood that the plaintiff’s allegations
regarding Balboni’s conduct were intended to raise a
hostile work environment claim pursuant to § 46a-60
(a) (8) (C), because that is the theory that the defendant
attempted to discredit on the merits in its motion for
summary judgment. The plaintiff confirmed the defen-
dant’s understanding when she contended in her oppo-
sition to the defendant’s motion for summary judgment
that she had established a genuine issue of material
fact as to whether Balboni’s conduct had worsened
her ‘‘working environment . . . .’’ Thus, contrary to the
Appellate Court’s conclusion that the trial court simply
assumed without any basis that the plaintiff had
intended to bring a hostile work environment claim,
the trial court was merely addressing the issue as it
had been framed by the parties. ‘‘[A]lthough a plaintiff
should plead a statute [on which the plaintiff intends
to rely] in a complaint . . . failing to do so will not
necessarily bar recovery as long as the [defendant is]
sufficiently apprised of the applicable statute during
the course of the proceedings.’’ (Emphasis in original.)
Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d 1181
(2001), aff’d, 263 Conn. 22, 818 A.2d 37 (2003). Because
the defendant understood the nature of the plaintiff’s
sexual harassment claim, we conclude that the Appel-
late Court improperly upheld the ruling of the trial court
on the alternative ground that the plaintiff had not
expressly pleaded § 46a-60 (a) (8) (C).
Accordingly, we turn to the question of whether the
trial court properly determined that the plaintiff failed
to establish a genuine issue of material fact as to
whether she had been subjected to a hostile work envi-
ronment because of her sex. See State v. James, 261
Conn. 395, 411, 802 A.2d 820 (2002) (this court may
address issue in certified appeal that Appellate Court
did not reach in interests of avoiding delay and promot-
ing judicial economy when record is adequate for
review and issue has been briefed by parties). We begin
our analysis with the governing legal standard. ‘‘[T]o
establish a hostile work environment claim, a plaintiff
must produce evidence sufficient to show that the work-
place is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or perva-
sive to alter the conditions of the victim’s employment
and create an abusive working environment . . . . [I]n
order to be actionable . . . a sexually objectionable
environment must be both objectively and subjectively
offensive, one that a reasonable person would find hos-
tile or abusive, and one that the victim in fact did per-
ceive to be so. . . . Whether an environment is
objectively hostile is determined by looking at the
record as a whole and at all the circumstances, includ-
ing the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humili-
ating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work per-
formance.’’ (Citations omitted; internal quotation marks
omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 699,
41 A.3d 1013 (2012). ‘‘As the Court of Appeals for the
Second Circuit explained with respect to offensive slurs
in another context: [T]here must be more than a few
isolated incidents of racial enmity . . . meaning that
[i]nstead of sporadic racial slurs, there must be a steady
barrage of opprobrious racial comments . . . . Thus,
whether racial slurs constitute a hostile work environ-
ment typically depends upon the quantity, frequency,
and severity of those slurs . . . considered cumula-
tively in order to obtain a realistic view of the work
environment . . . . Schwapp v. Avon, 118 F.3d 106,
110–11 (2d Cir. 1997).’’ (Internal quotation marks omit-
ted.) Patino v. Birken Mfg. Co., supra, 699–700.
In support of its claim that the trial court properly
determined that the plaintiff had not established a genu-
ine issue of material fact as to whether she was subject
to a hostile work environment on the basis of her sex,
the defendant relies on a number of cases in which,
according to the defendant, the respective courts found
that much worse discriminatory conduct than that
alleged by the plaintiff was insufficiently pervasive and
severe to be actionable. See Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 768 (2d Cir. 1998) (plaintiff’s claims
that her supervisor had told her that she had been voted
‘‘sleekest ass’’ in office and that he deliberately had
touched her breasts with some papers that he was hold-
ing were ‘‘sufficiently isolated and discrete that a trier
of fact could not reasonably conclude that they per-
vaded [the plaintiff’s] working environment’’);11 Bailey
v. Synthes, 295 F. Supp. 2d 344, 358 (S.D.N.Y. 2003)
(plaintiff’s claims that various supervisors had shown
group of employees vacation photographs displaying
representations of male genitalia on native buildings,
had engaged in sexually suggestive dancing with
another female staff member, had told plaintiff of sexual
experience with nurse, and had given plaintiff smaller
cigar than those provided to male colleagues were not
sufficient to create genuine issue of material fact as to
whether employer created hostile work environment
because actions were infrequent and isolated, were not
physically threatening, occurred outside of plaintiff’s
daily work routine, and there was no evidence to show
that they affected her work performance); Lamar v.
NYNEX Service Co., 891 F. Supp. 184, 184–85 (S.D.N.Y
1995) (female plaintiff’s claim that female supervisor
had ‘‘grasped her hand to admire her rings and told
her that she ‘looked really hot,’ ’’ made vulgar sexual
remarks to groups of employees, displayed sexually
revealing garment to several employees, and stared at
plaintiff in hostile manner and behaved abusively
toward her were not sufficiently severe or pervasive to
create hostile work environment when plaintiff did not
object to conduct and behavior was not directed specifi-
cally at her); Babcock v. Frank, 783 F. Supp. 800, 808–
809 (S.D.N.Y. 1992) (plaintiff’s claims that supervisor
with whom she had had affair issued disciplinary letter
to her, which was later expunged from plaintiff’s per-
sonnel file and had no lasting effect on plaintiff, that
coworker had thrown pencils at her, that another
coworker had written anonymous note to plaintiff sug-
gesting that she get hairpiece, that supervisor had given
her red lace underwear as ‘‘gag gift’’ at Christmas party,
and that coworker had hung photograph of half-naked
woman on wall of his office, which was not observed
by anyone else or subject of any complaint, were not
sufficient to establish hostile work environment
because incidents were isolated and employer
responded promptly to all of plaintiff’s complaints).
We conclude that these cases are distinguishable
from the present case. Quinn v. Green Tree Credit
Corp., supra, 159 F.3d 768, involved only two isolated
incidents. In Bailey v. Synthes, supra, 295 F. Supp.
2d 358, the supervisor’s actions were infrequent and
isolated, were not physically threatening and occurred
outside of the plaintiff’s daily work routine. In Lamar
v. NYNEX Service Co., supra, 891 F. Supp. 185, the
plaintiff did not object to her supervisor’s behavior and
that behavior was not directed specifically at the plain-
tiff. In Babcock v. Frank, supra, 783 F. Supp. 808–809,
the incidents were isolated and, in one instance, uncor-
roborated, and the employer responded promptly to all
of the plaintiff’s complaints. In contrast, in the present
case, the plaintiff claimed that, over the period of just
a few months, Balboni had rubbed up against her three
times and, when she asked him to stop, he sent her a text
message stating, ‘‘you bitch.’’ During the same period,
Balboni twice ridiculed the plaintiff’s hairstyle in a most
public and offensive manner and called the plaintiff a
man who was incapable of feeling pain. When the plain-
tiff complained about Balboni’s conduct to her supervi-
sors, she was chided for being ‘‘petty’’ and for raising
issues that were ‘‘not relevant.’’ Although the specific
dates of Balboni’s other actions are not clear, viewed
in the light most favorable to the plaintiff, the evidence
would support a conclusion that his vulgar comments
about the physical attributes of female customers, Pina
and the plaintiff, his statements to the effect that he
was willing to have sexual relations with ‘‘black, white,
Puerto Rican, anything,’’ his sexually provocative con-
duct with and comments about Pina, and his repeated
touching of his crotch were ongoing issues.
We note that the trial court considered only one of
Balboni’s unnecessary physical contacts with the plain-
tiff and his text message to the plaintiff when it con-
cluded that the plaintiff had not established a genuine
issue of material fact as to whether Balboni’s conduct
created a hostile work environment. Summary judg-
ment is appropriate, however, only when, on the basis
of all of the evidence, ‘‘view[ed] . . . in the light most
favorable to the nonmoving party,’’ the movant is enti-
tled to judgment as a matter of law. (Emphasis added;
internal quotation marks omitted.) H.O.R.S.E. of Con-
necticut, Inc. v. Washington, supra, 258 Conn. 559; see
also Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 69, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) (existence
of hostile workplace must be determined ‘‘in light of
the record as a whole and the totality of circumstances’’
[internal quotation marks omitted]). We conclude that,
on the basis of all of this evidence, a reasonable juror
could find that the defendant’s ‘‘workplace [was] perme-
ated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter
the conditions of the [plaintiff’s] employment and create
an abusive working environment . . . .’’ (Internal quo-
tation marks omitted.) Patino v. Birken Mfg. Co., supra,
304 Conn. 699. Accordingly, we conclude that the trial
court improperly determined that the plaintiff had not
established a genuine issue of material fact as to
whether the defendant had subjected her to a hostile
work environment on the basis of her sex.
The judgment of the Appellate Court affirming the
judgment of the trial court with respect to the plaintiff’s
claim of sexual harassment in the workplace is reversed
and the case is remanded to the Appellate Court with
direction to remand the case to the trial court for further
proceedings on that claim; the judgment is affirmed in
all other respects.
In this opinion the other justices concurred.
1
The plaintiff filed a five count complaint alleging unlawful discrimination
on the basis of national origin, religion, sex, disability and race. Each count
referred to the Connecticut Fair Employment Practices Act by name, but
the plaintiff did not cite the specific statutes that she was relying on. The
heading to count three provides as follows: ‘‘CONNECTICUT FAIR EMPLOY-
MENT PRACTICES ACT (SEXUAL HARASSMENT).’’ The trial court ulti-
mately construed the complaint as raising claims that the defendant had
failed to reasonably accommodate her disability, had engaged in sexual
harassment in the workplace in violation of General Statutes § 46a-60 (a)
(8) (C), and had unlawfully terminated her employment on the basis of her
national origin, religion and race.
2
On appeal, the plaintiff does not challenge this construction of her com-
plaint, which, as we have noted, was consistent with the approach taken
by the trial court. Thus, she does not claim that her complaint, which
was not a model of clarity, alleges that her employment was unlawfully
terminated on the basis of her sex or disability or that she was subject to
a hostile workplace environment on the basis of her national origin, religion
or race.
3
General Statutes § 46a-60 (a) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section . . .
‘‘(8) For an employer, by the employer or the employer’s agent, for an
employment agency, by itself or its agent, or for any labor organization, by
itself or its agent, to harass any employee, person seeking employment
or member on the basis of sex or gender identity or expression. ‘Sexual
harassment’ shall, for the purposes of this section, be defined as any unwel-
come sexual advances or requests for sexual favors or any conduct of a
sexual nature when (A) submission to such conduct is made either explicitly
or implicitly a term or condition of an individual’s employment, (B) submis-
sion to or rejection of such conduct by an individual is used as the basis
for employment decisions affecting such individual, or (C) such conduct
has the purpose or effect of substantially interfering with an individual’s
work performance or creating an intimidating, hostile or offensive working
environment . . . .’’
We note that § 46a-60 (a) was amended since the time of the alleged
discrimination in this case. See Public Acts 2011, No. 11-55, § 24. The changes
are not relevant to this appeal. For purposes of convenience, we refer herein
to the current revision of the statute.
4
The plaintiff also claims in a footnote in her brief that the Appellate
Court improperly ‘‘failed to find disability discrimination . . . .’’ Because
this claim is supported only by one sentence in which the plaintiff states
conclusorily that she was ‘‘treated differently than others who had disabling
conditions,’’ we conclude that the claim is inadequately briefed and decline
to address it. See Hurley v. Heart Physicians, P.C., 298 Conn. 371, 378 n.6,
3 A.3d 892 (2010).
5
‘‘This court previously has recognized that [s]tatistical evidence in a
disparate treatment case, in and of itself, rarely suffices to rebut an employ-
er’s legitimate, nondiscriminatory rationale for its [adverse employment]
decision . . . .’’ (Internal quotation marks omitted.) Perez-Dickson v.
Bridgeport, supra, 304 Conn. 517. Similarly, statistical evidence will rarely
suffice to raise an inference that the adverse employment decision was
discriminatory under the fourth prong of the McDonnell Douglas Corp.
framework. ‘‘This is because a[n] [employer’s] overall employment statistics
will, in at least many cases, have little direct bearing on the specific intentions
of the employer . . . . Without an indication of a connection between the
statistics, the practices of the employer, and the employee’s case, statistics
alone are likely to be inadequate to show that the employer’s decision . . .
was impermissibly based on [a protected trait]. . . . Board of Education
v. Commission on Human Rights & Opportunities, supra, 266 Conn. 516.
Standing alone, statistical evidence is sufficient to establish discriminatory
intent in individual disparate treatment actions only when it shows a stark
pattern of discrimination . . . . Aragon v. Republic Silver State Disposal,
Inc., 292 F.3d 654, 663 (9th Cir. 2002); id. (statistics must show a stark pattern
of discrimination unexplainable on grounds other than [discrimination on
the basis of membership in the protected class] . . .); see also Ottaviani
v. State University of New York, 875 F.2d 365, 371 (2d Cir. 1989) (in individual
disparate treatment actions, [w]here gross statistical disparities can be
shown, they alone may in a proper case constitute prima facie proof of a
pattern or practice of discrimination . . .), cert. denied, 493 U.S. 1021, 110
S. Ct. 721, 107 L. Ed. 2d 740 (1990); Chesna v. United States Dept. of Defense,
850 F. Sup. 110, 117–18 (D. Conn. 1994) (to prove intentional discrimination
in violation of equal protection clause through circumstantial evidence of
disparate treatment, plaintiff must show stark pattern of discrimination);
Life Technologies v. Superior Court, 197 Cal. App. 4th 640, 650, 130 Cal.
Rptr. 3d 80 (2011) (Statistical evidence may . . . be utilized in a disparate
treatment case. However, because discriminatory intent must be shown in
such a case, statistical evidence must meet a more exacting standard.);
Smith College v. Massachusetts Commission Against Discrimination, 376
Mass. 221, 228 n.9, 380 N.E.2d 121 (1978) (in individual disparate treatment
action, gross statistical disparities alone may constitute prima facie proof
of a practice of discrimination . . .).’’ (Emphasis in original; footnote omit-
ted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport,
supra, 517–19.
6
The plaintiff represents in her brief to this court that Davis is not Rastaf-
arian and is African-American. She does not indicate where in the record,
however, evidence of Davis’ race and religion can be found.
7
There is evidence that the plaintiff told Ballou and Sikandar about other
alleged acts of theft and, as we discuss later in this opinion, that she com-
plained to Ballou about Balboni’s conduct. Ballou was present during Vas-
quez’ interview of the plaintiff. There is no evidence, however, that Balboni
had any influence on Ballou, or that Ballou had any influence on the investiga-
tion of the use of the customer loyalty card or the decision to terminate
the plaintiff. There is also no evidence that Sikandar had any knowledge
about or was influenced in any way by Balboni.
8
In her complaint to the Commission on Human Rights and Opportunities,
which was before the trial court in the proceedings on the defendant’s
motion for summary judgment, the plaintiff contended that Balboni had
twice ridiculed her by wearing a dreadlocks wig, once in her presence and
once when she was not present.
9
These interrogatory responses were before the trial court in the proceed-
ings on the defendant’s motion for summary judgment.
10
Specifically, the plaintiff claimed that Balboni had rubbed up against
her and ridiculed her hairstyle during the months between February, 2007
and April, 2007. It is unclear when Balboni’s other conduct occurred.
11
The defendant in the present case contends that the court in Quinn
held that the plaintiff had failed to establish a prima facie case of a hostile
work environment when she alleged ‘‘thirty separate actions by [her] supervi-
sors and coworkers and company clients which consisted of offensive com-
ments referring either to the speaker’s own sexual prowess, the plaintiff’s
body . . . or the sexual orientation of the plaintiff and her husband . . .
the display of pornography to the plaintiff, the pantomiming of sexual acts,
and one instance of a supervisor deliberately touching the plaintiff’s breasts
. . . .’’ The court in Quinn concluded for a variety of reasons, however,
that it was barred from considering all but two of these acts. See Quinn v.
Green Tree Credit Corp., supra, 159 F.3d 765–68.