Boucher v. Saint Francis GI Endoscopy, LLC , 187 Conn. App. 422 ( 2019 )

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DARLENE BOUCHER v. SAINT FRANCIS GI
ENDOSCOPY, LLC
(AC 40597)
Alvord, Prescott and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for, inter alia,
employment discrimination in violation of the Connecticut Fair Employ-
ment Practices Act (§ 46a-51 et seq.), claiming that the defendant, her
former employer, retaliated against her and constructively discharged
her when she complained about being sexually harassed by a coworker,
C. The defendant claimed that it did not take any action against the
plaintiff that constituted an adverse employment action. The trial court
granted the defendant’s motion for summary judgment and rendered
judgment in favor of the defendant, concluding, inter alia, that the plain-
tiff had failed to establish a prima facie case of employment discrimina-
tion or retaliation, from which the plaintiff appealed to this court. Held
that the trial court properly granted the defendant’s motion for summary
judgment, the plaintiff having failed to allege facts that, if proven, would
establish an adverse employment action by the defendant: the plaintiff
did not establish a genuine issue of material fact as to whether the
defendant intentionally created an intolerable work atmosphere that
forced her to quit involuntarily to support her claim of constructive
discharge, as there was no evidence that the defendant knew of C’s
actions prior to the plaintiff’s disclosure of them to her supervisor, H,
the plaintiff did not claim that the defendant ordered or encouraged C’s
actions, nor did she make any other viable claim that would constitute
an intolerable work atmosphere, the plaintiff presented no evidence
from which it could be inferred that the defendant deliberately sought
to force the plaintiff to quit, and, in fact, it was undisputed that H
attempted to stop the plaintiff from quitting; moreover, even if the
plaintiff’s interactions with H transpired as she described in her deposi-
tion, the defendant’s actions did not rise to the level needed to show
constructive discharge, because once H was informed of the complaint,
she investigated the plaintiff’s concerns, the possibility of the defendant
being able to provide the plaintiff with a remedy was eliminated three
days after the complaint was received when the plaintiff abruptly quit
her job, H never issued the plaintiff a warning, and H’s request for the
plaintiff to recount her story in the course of her investigation did not
constitute a materially adverse employment action.
Argued October 16, 2018—officially released January 22, 2019
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
Hartford, where the court, Moukawsher, J., granted the
defendant’s motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
James V. Sabatini, for the appellant (plaintiff).
Christopher A. Klepps, with whom was Christopher
L. Brigham, for the appellee (defendant).
Scott Madeo filed a brief for the Commission on
Human Rights and Opportunities as amicus curiae.
Opinion
PRESCOTT, J. In this employment discrimination
action, the plaintiff, Darlene Boucher, appeals from the
summary judgment rendered by the trial court in favor
of her employer, the defendant, Saint Francis GI Endos-
copy, LLC, on the plaintiff’s complaint, which alleged
that her employer retaliated against her when she com-
plained about being sexually harassed by a coworker.
See General Statutes § 46a-60 (b) (4).1 On appeal, the
plaintiff claims that the court improperly granted the
defendant’s motion for summary judgment because
there is a genuine issue of material fact as to her retalia-
tion claim.2 We disagree and, accordingly, affirm the
judgment of the trial court.
The record before the court, viewed in the light most
favorable to the plaintiff as the nonmoving party,
reveals the following facts and procedural history. The
defendant employed the plaintiff, beginning in Febru-
ary, 2012, as a part-time office assistant. She eventually
became a full-time insurance verification specialist. The
plaintiff’s immediate supervisor was Kathleen Hull.
On more than one occasion, Jason Crespo, a
coworker of the plaintiff, made comments to the plain-
tiff regarding her appearance at work, including ‘‘you
look beautiful’’ and ‘‘you look hot.’’ Crespo also thrusted
his hips at the plaintiff while stating that she was hot.
On another occasion, Crespo hit the plaintiff’s torso
with a rubber glove. Crespo also sent the plaintiff a
text message regarding the plaintiff’s husband on Easter
weekend, although the plaintiff cannot recall what the
text message said and immediately deleted it. Finally,
during August, 2013, Crespo forced the plaintiff into a
utility closet, where he pushed his body against the
plaintiff’s and she could feel his penis through his
clothes. At some point, the plaintiff told Crespo to stop
this behavior. The plaintiff did not report Crespo’s con-
duct to Hull until approximately six months after the
incident in the closet.
On the morning of January 10, 2014, the plaintiff made
a complaint about Crespo to Hull. Hull and the plaintiff
met for about an hour. The plaintiff told Hull about her
interactions with Crespo, including the incident in the
utility closet, the text message over Easter weekend,
and Crespo’s comments about the plaintiff’s appear-
ance. January 10, 2014, was a Friday, and Hull was
leaving work early for a weekend vacation. Hull told
the plaintiff that she would interview all parties and
get back to the plaintiff the following Monday, January
13, 2014. The plaintiff did not expect that Hull would
be interviewing anyone over the weekend.
Hull sent the plaintiff a text message on Sunday,
January 12, 2014, in order to ask her more questions
about her complaint and what had transpired. Hull told
the plaintiff that she would speak with Dawn DiPinto, a
coworker and friend of the plaintiff, about the situation.
After exchanging text messages regarding the com-
plaint, the plaintiff requested that they wait until the
following day to discuss the complaint in further detail.
Hull responded, ‘‘Wow.’’
On the following day, Monday, January 13, 2014, after
speaking with DiPinto, Hull sent the plaintiff an e-mail
requesting that the plaintiff come to her office.3 Once
in her office, Hull told the plaintiff that she had spoken
with DiPinto and that the plaintiff’s story ‘‘[did not] add
up.’’ Hull then requested that the plaintiff recount her
complaint from the beginning. Hull also told the plaintiff
that she was going to give her a warning. The plaintiff,
however, was not aware of the nature of the warning,
or why she would get a warning. A warning was
never issued.
The plaintiff then told Hull that she did not know
what else to say and stood up. Hull asked the plaintiff
what she was doing, asked her to sit down, and asked
her if she was quitting. The plaintiff replied that she
was quitting. Hull asked the plaintiff to sit down again,
grabbed her arms, and said, ‘‘Are you sure you want to
do this?’’ The plaintiff told Hull to get off of her, walked
out, and filed a police report against Hull for assault.
Following an investigation, the police did not arrest
Hull. After the plaintiff left the workplace on January
13, 2014, Hull spoke with Crespo, continuing her investi-
gation of the plaintiff’s complaint.
The plaintiff commenced this action on April 7, 2016.
The plaintiff filed a three count complaint setting forth
facts regarding her interactions with Crespo and Hull.
The first count alleged that the defendant discriminated
against the plaintiff on the basis of gender in violation
of § 46a-60 (b) (1). The second count alleged that the
defendant violated § 46a-60 (b) (8) by creating a hostile
work environment through its failure to stop Crespo’s
sexual harassment of the plaintiff. The third count
alleged that, in violation of § 46a-60 (b) (4), the defen-
dant retaliated against her for complaining about the
sexual harassment committed by Crespo.
The defendant filed an answer to the complaint deny-
ing, or leaving the plaintiff to her proof, with respect to
all allegations of discrimination. The defendant further
alleged, as affirmative defenses, that (1) it exercised
reasonable care to prevent and correct sexual harass-
ment in the workplace and (2) the plaintiff failed to
mitigate any damages that she allegedly sustained.
The defendant filed a motion for summary judgment
on March 15, 2017, stating that there was no genuine
issue of material facts as to any of the plaintiff’s claims
and that the defendant was entitled to summary judg-
ment as a matter of law. The defendant also filed a
memorandum of law in support of the motion for sum-
mary judgment. The defendant argued in its memoran-
dum that the plaintiff failed to establish a genuine issue
of material fact regarding the prima facie elements of
each cause of action in her complaint. Specifically,
regarding the plaintiff’s retaliation claim, the defendant
asserted that it took no adverse employment action
against the plaintiff after she reported Crespo’s conduct
and, thus, had not retaliated against her. With its memo-
randum, the defendant submitted, inter alia, sworn affi-
davits from Hull and Crespo, and an uncertified copy
of a text message exchange between the plaintiff and
Hull.4
The plaintiff filed an objection to the motion for sum-
mary judgment on May 30, 2017. In her objection, the
plaintiff argued that she had raised a genuine issue of
material fact with respect to each element of a prima
facie retaliation claim and that the defendant’s response
to the sexual harassment complaint constituted an
adverse employment action. Specifically, the plaintiff
argued that the defendant constructively discharged her
in retaliation for complaining about sexual harassment.
The plaintiff also asserted that Hull’s (1) demeanor in
her meeting with the plaintiff, (2) opinion that her story
‘‘did not add up,’’ (3) request that she recount what had
happened, and (4) statement that the plaintiff could
receive a warning, constituted an adverse employ-
ment action.
The court granted the motion for summary judgment
in favor of the defendant as to all three counts of the
plaintiff’s complaint on June 19, 2017. In its memoran-
dum of decision, the court concluded that, viewing the
facts in the light most favorable to the plaintiff, she
failed to raise a genuine issue of material fact regarding
various prima facie elements of each cause of action.
This appeal followed.
We first set forth the relevant standards that govern
our review of a court’s decision to grant a defendant’s
motion for summary judgment. ‘‘Practice Book § [17-
49] provides 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. . . .
[I]ssue-finding, rather than issue-determination, is the
key to the procedure. . . . [T]he trial court does not
sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Barbee v. Sysco
Connecticut, LLC, 156 Conn. App. 813, 817–18, 114 A.3d
944 (2015).
‘‘It is frequently stated in Connecticut’s case law that,
pursuant to Practice Book §§ 17-45 and 17-46, a party
opposing a summary judgment motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . [T]ypically [d]em-
onstrating a genuine issue requires a showing of eviden-
tiary facts or substantial evidence outside the pleadings
from which material facts alleged in the pleadings can
be warrantably inferred. . . .
‘‘An important exception exists, however, to the gen-
eral rule that a party opposing summary judgment must
provide evidentiary support for its opposition . . . .
On a motion by [the] defendant for summary judgment,
the burden is on [the] defendant to negate each claim
as framed by the complaint . . . . It necessarily fol-
lows that it is only [o]nce [the] defendant’s burden in
establishing his entitlement to summary judgment is
met [that] the burden shifts to [the] plaintiff to show
that a genuine issue of fact exists justifying a trial. . . .
Accordingly, [w]hen documents submitted in support
of a motion for summary judgment fail to establish that
there is no genuine issue of material fact, the nonmoving
party has no obligation to submit documents establish-
ing the existence of such an issue.’’ (Internal quotation
marks omitted.) Id., 818–19.
On appeal, the plaintiff claims that the court improp-
erly granted the defendant’s motion for summary judg-
ment because a genuine issue of material fact existed
as to whether the defendant retaliated against her. Spe-
cifically, the plaintiff asserts that she raised a genuine
issue of material fact regarding retaliation by proffering
facts that tend to demonstrate that she was construc-
tively discharged from her employment. In addition to
constructive discharge, the plaintiff claims that Hull’s
behavior toward her in their January 13, 2014 meeting
also raised a genuine issue of material fact regarding
retaliation. The defendant argues that the plaintiff’s
retaliation claim fails because, as a matter of law, the
defendant did not take any action against her that con-
stitutes an adverse employment action. We agree with
the defendant that it is entitled to summary judgment
because the plaintiff failed to allege facts that, if proven,
would establish an adverse employment action.
The plaintiff’s claim of discrimination in employment
arises under the Connecticut Fair Employment Prac-
tices Act, General Statutes § 46a-51 et seq. Our Supreme
Court previously has determined that ‘‘Connecticut anti-
discrimination statutes should be interpreted in accor-
dance with federal antidiscrimination laws.’’ (Internal
quotation marks omitted.) Patino v. Birken Mfg. Co.,
304 Conn. 679, 689, 41 A.3d 1013 (2012). Therefore, ‘‘[i]n
interpreting our antidiscrimination and antiretaliation
statutes, we look to federal law for guidance.’’ (Internal
quotation marks omitted.) Amato v. Hearst Corp., 149
Conn. App. 774, 779, 89 A.3d 977 (2014).
Section 46a-60 (b) (4)5 prohibits an employer from
discharging, expelling, or otherwise discriminating
against, any person because such person has filed a
complaint regarding a discriminatory employment prac-
tice pursuant to § 46a-82 (a),6 such as sexual harass-
ment, as defined by § 46a-60 (b) (8).7 To establish a
prima facie case of retaliation, a plaintiff must show
four elements: (1) that he or she participated in a pro-
tected activity; (2) that the defendant knew of the pro-
tected activity; (3) an adverse employment action
against him or her; and (4) a causal connection between
the protected activity and the adverse employment
action. McMenemy v. Rochester, 241 F.3d 279, 282–83
(2d Cir. 2001). For the purposes of a retaliation claim,
an adverse action must be ‘‘materially adverse’’ or
‘‘harmful to the point that [it] could well dissuade a
reasonable [employee] from making or supporting a
charge of discrimination.’’ (Internal quotation marks
omitted.) Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.
2010). By considering the perspective of a reasonable
employee, we apply an objective standard. Id. ‘‘[T]he
alleged acts of retaliation need to be considered both
separately and in the aggregate, as even minor acts of
retaliation can be sufficiently ‘substantial in gross’ as
to be actionable.’’ Id. Further, the retaliatory act need
not bear on the terms or conditions of employment.
Id., 169.
Nevertheless, to be materially adverse, a change in
working conditions must be ‘‘more disruptive than a
mere inconvenience or an alteration of job responsibili-
ties. . . . Examples of materially adverse changes
include termination of employment, a demotion evi-
denced by a decrease in wage or salary, a less distin-
guished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices
. . . unique to a particular situation.’’ (Citations omit-
ted; internal quotation marks omitted.) Terry v. Ash-
croft, 336 F.3d 128, 138 (2d Cir. 2003). We first reject
the plaintiff’s claim that she has raised a genuine issue
of material fact as to whether she was constructively
discharged by the defendant. ‘‘Normally, an employee
who resigns is not regarded as having been discharged,
and thus would have no right of action for [wrongful]
discharge. . . . Through the use of constructive dis-
charge, the law recognizes that an employee’s voluntary
resignation may be, in reality, a dismissal by an
employer. . . . Constructive discharge of an employee
occurs when an employer, rather than directly discharg-
ing an individual, intentionally creates an intolerable
work atmosphere that forces an employee to quit invol-
untarily. Working conditions are intolerable if they are
so difficult or unpleasant that a reasonable person in
the employee’s shoes would have felt compelled to
resign. . . . Accordingly, a claim of constructive dis-
charge must be supported by more than the employee’s
subjective opinion that the job conditions have become
so intolerable that he or she was forced to resign.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Brittell v. Dept. of Correction, 247
Conn. 148, 178, 717 A.2d 1254 (1998). Furthermore, ‘‘[A]
constructive discharge cannot be proven merely by evi-
dence that an employee . . . preferred not to continue
working for that employer’’ or that ‘‘the employee’s
working conditions were difficult or unpleasant.’’
Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156
(2d Cir. 1993). ‘‘Unless conditions are beyond ordinary
discrimination, a complaining employee is expected to
remain on the job while seeking redress.’’ (Citation
omitted; internal quotations omitted.) Pennsylvania
State Police v. Suders, 542 U.S. 129, 147, 124 S. Ct. 2342,
159 L. Ed. 2d 204 (2004).
The plaintiff has not established a genuine issue of
material fact as to whether the defendant intentionally
created an intolerable work atmosphere that forced her
to quit involuntarily. First, there is no evidence that the
defendant knew of Crespo’s actions against her prior
to the plaintiff’s disclosure of them to Hull on January
10, 2014. The plaintiff does not claim that the defendant
ordered or encouraged Crespo’s actions against her.
She made no other viable claim that would constitute
an intolerable work atmosphere. Second, the plaintiff
has presented no evidence from which it can be inferred
that the defendant deliberately sought to force the plain-
tiff to quit. According to the plaintiff’s own account,
when the plaintiff quit, her supervisor tried to prevent
her from quitting, asking ‘‘are you sure you want to do
this?’’ This evidence directly negates the constructive
discharge requirement that the defendant intentionally
create an intolerable work environment to force the
employee to quit; in fact, it is undisputed that Hull
attempted to stop the plaintiff from quitting.
Even if the meeting with Hull occurred as the plaintiff
described in her deposition, the defendant’s actions do
not rise to the level needed to demonstrate constructive
discharge. See Noel v. AT & T Corp., 774 F.3d 920, 921
(8th Cir. 2014) (plaintiff failed to show constructive
discharge because he produced no evidence that
employer deliberately made working conditions so
intolerable that reasonable person would have been
compelled to resign); Miller v. Praxair, Inc., United
States Court of Appeals, Docket No. 09:2962CV (CFD)
(2d Cir. November 24, 2010) (routine disagreements
with supervisors and mild criticisms insufficient to meet
‘‘demanding’’ standard for constructive discharge); Hill
v. Winn-Dixie Stores, Inc., 934 F.2d 1518, 1527 (11th
Cir. 1991) (formal written reprimand and supervisor
criticism do not constitute constructive discharge). The
working conditions in this case were not so difficult or
unpleasant that a reasonable person in the plaintiff’s
shoes would have resigned.
Additionally, an employee claiming constructive dis-
charge under retaliation must give the employer a rea-
sonable chance to remedy any intolerable working
conditions before quitting. Howard v. Burns Bros., Inc.,
149 F.3d 835, 842 (8th Cir. 1998). Here, once informed
of the complaint, the plaintiff’s supervisor took swift
action to investigate her concerns, going so far as to
communicate with the plaintiff over the weekend, while
the supervisor was on vacation. The possibility of pro-
viding the plaintiff with a remedy, however, was elimi-
nated, three days after the complaint was received, by
the plaintiff abruptly quitting her job. The defendant
was not given an opportunity to consider and, if neces-
sary, address the plaintiff’s claims.
In support of her contention that she raised a genuine
issue of material fact as to constructive discharge, the
plaintiff relies heavily on Chertkova v. Connecticut Gen-
eral Life Ins. Co., 92 F.3d 81 (2d Cir. 1996), in which the
United States Court of Appeals for the Second Circuit
reversed the decision of the United States District Court
for the District of Connecticut to render summary judg-
ment in favor of the defendant on a constructive dis-
charge claim. Chertkova, however, is distinguishable
from the present case.
The plaintiff in Chertkova had been put on probation
for ‘‘communication’’ reasons. Id., 85. ‘‘[The] [p]laintiff’s
evidence [suggested] her supervisor engaged in a pat-
tern of baseless criticisms, said she would not be
around, and that she would be fired instantly if she
did not meet certain ambiguous behavior objectives.’’
(Internal quotation marks omitted.) Id., 89. Another
female worker, and no male workers, had been dis-
charged for the same baseless reasons. Id., 85. ‘‘[The
plaintiff] presented proof that documenting a pattern
to get rid of an unwanted employee was a recognized
practice at the company . . . .’’ Id., 93. The court stated
that, ‘‘[t]he evidence . . . would . . . allow a fact-
finder to conclude that [the plaintiff’s supervisors]
deliberately created unbearable working conditions for
the purpose of forcing Chertkova out of the company.’’
(Emphasis in original.) Id., 90. In the present case, the
plaintiff has demonstrated no such pattern or inten-
tional behavior by the defendant. Accordingly, we dis-
agree with the plaintiff that she raised a genuine issue of
material fact as to whether she had been constructively
discharged by the defendant.
We turn next to the plaintiff’s assertion that the evi-
dence presented regarding the actions of Hull at the
meeting on January 13, 2014, either individually or col-
lectively, were sufficient to raise a genuine issue of
material fact that the defendant took an adverse
employment action against her. Specifically, the plain-
tiff contends that ‘‘[the] [d]efendant’s response to [the]
[p]laintiff’s sexual harassment complaint was harmful
to the point that it could have dissuaded a reasonable
worker from making or supporting a charge of discrimi-
nation.’’ See Hicks v. Baines, supra, 593 F.3d 165.
Hull’s actions, however, individually or in the aggre-
gate, do not constitute a materially adverse employment
action. First, it is undisputed that the warning threat-
ened by Hull was never issued. The plaintiff has failed
to cite to a single case in which a court has held that
the threat of a warning could, by itself, constitute a
materially adverse employment action. In repeated
cases, in similar factual contexts, courts have rejected
the argument that certain actions by employers, unac-
companied by an adverse change in employment condi-
tions, are enough to constitute an adverse
employment action.
For example, in Amato v. Hearst Corp., supra, 149
Conn. App. 774, the plaintiff employee alleged that her
employer had discriminated against her on account of
her age. Id., 776. The plaintiff had worked for the defen-
dant for ten years when the defendant put multiple
senior employees, including the plaintiff, on a ‘‘[p]erfor-
mance [i]mprovement [p]lan’’ that subjected them to
future termination. Id. In response to the plan, the plain-
tiff filed a complaint alleging age discrimination with
the Connecticut Commission on Human Rights and
Opportunities (commission). Id. After the complaint
had been filed with the commission, the defendant
ended or suspended its actions against the older
employees, and neither the plaintiff nor any of the other
senior employees were terminated. Id., 776–77. This
court held that the employee failed to allege any adverse
material changes in the terms or conditions of her
employment, such as termination, as a result of being
placed on the performance improvement plan, and
therefore did not establish a prima facie case of discrim-
ination. Id., 783.
Similarly, in Tepperwien v. Entergy Nuclear Opera-
tions, Inc., 663 F.3d 556, 560 (2d Cir. 2011), the United
States Court of Appeals for the Second Circuit affirmed
the decision of the United States District Court for the
Southern District of New York to grant a motion for
summary judgment in favor of the defendant on a con-
structive discharge claim. In Tepperwien, an employee
made a complaint to his union, which in turn informed
management, about sexual harassment. Id., 561. After
the employee made his complaint, the employee was
threatened by a supervisor that he would be walked
off site and his employment would be terminated. Id.,
571. Neither of these threats, however, were carried
out. Id. Therefore, the Second Circuit found that these
actions did not cause injury because they were ‘‘empty
verbal threats’’ and, therefore, were not materially
adverse employment actions. (Internal quotation marks
omitted.) Id.In Balderrama v. Kraft Foods North America, Inc.,
307 F. Supp. 2d 1012, 1013 (N.D. Ill. 2004), the plaintiff
alleged that she complained to her employer about sex-
ual harassment and nothing was done. She then filed
a complaint of sex discrimination and retaliation with
the Equal Employment Opportunity Commission
(EEOC). Id. The plaintiff alleged that the employer gave
her a written warning in retaliation for filing the EEOC
charge. Id. The United States District Court for the
Northern District of Illinois, Eastern Division rendered
summary judgment in favor of the employer on the
plaintiff’s claim of retaliation, concluding that a written
warning did not constitute an adverse employment
action under Seventh Circuit case law, as it did not
result in a significantly negative alteration in the plain-
tiff’s workplace environment. Id., 1014.
Further, Hull’s purportedly angry demeanor during
her January 13, 2014 meeting with the plaintiff, if
proven, does not create a materially adverse employ-
ment action. In Tepperwien v. Entergy Nuclear Opera-
tions, Inc., supra, 663 F.3d 565, 571, a supervisor’s stare
at an employee during an employee meeting while com-
menting that ‘‘[t]here are people . . . that don’t like
each other,’’ ‘‘[t]here are people here I don’t like,’’ after
the employee had made a sexual harassment complaint,
was not considered an adverse employment action.
(Internal quotation marks omitted.) Hull’s actions,
viewed in the light most favorable to the plaintiff, are no
more harmful or intimidating than those in Tepperwien
and would not dissuade a reasonable employee from
making or supporting a charge of discrimination. See
Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006)
(‘‘personality conflicts at work that generate antipathy
and snubbing by supervisors and co-workers are not
actionable’’ [internal quotation marks omitted]).
Finally, Hull’s request for the plaintiff to recount her
story in the course of her investigation does not consti-
tute a materially adverse employment action. It was
appropriate for Hull to request that the plaintiff repeat
or clarify her complaint. This is particularly true given
that Hull had interviewed DiPinto prior to meeting with
the plaintiff and needed to ensure that she understood
the plaintiff’s claims in light of the additional informa-
tion she had received. Requesting an employee to repeat
a complaint for the employer’s investigation would not
dissuade a reasonable worker from making or support-
ing a charge of discrimination.
In sum, the plaintiff failed to demonstrate that a genu-
ine issue of material fact existed with respect to her
retaliation claim because the facts proffered, even if
established, would not constitute an adverse employ-
ment action. Accordingly, we conclude that the defen-
dant was entitled to summary judgment as a matter
of law.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 46a-60 was amended by No. 17-118, § 1, of the 2017
Public Acts, which added a new subsection (a) regarding definitions and
redesignated the existing subsections (a) and (b) as subsections (b) and
(c). Therefore, although the parties and the trial court cite to the earlier
version of the statute, for purposes of clarity, we refer to the current revision
of the statute.
2
In addition to the count alleging retaliation, the trial court also granted
the motion for summary judgment in favor of the defendant on the plaintiff’s
counts alleging gender discrimination and creation of a hostile work environ-
ment. The plaintiff, however, only opposed summary judgment on the retalia-
tion count, effectively abandoning the other counts.
3
The meeting on January 13, 2014, that took place between the plaintiff
and Hull was not a surprise to the plaintiff. She had specifically requested it.
4
A copy of the text messages was attached to the defendant’s memoran-
dum of law in support of the motion for summary judgment, but was not
certified as a true and accurate copy. The plaintiff, however, raised no
objection to the authenticity of the text messages in her opposition to
the motion for summary judgment and, furthermore, has not raised the
authenticity of the document as an issue on appeal. See Teodoro v. Bristol,
184 Conn. App. 363, 378, 195 A.3d 1 (2018) (where no party objects, court
not required to, but may, consider unauthenticated documents submitted
in support of motion for summary judgment).
5
General Statutes § 46a-60 (b) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section . . . (4) [f]or any person,
employer, labor organization or employment agency to discharge, expel or
otherwise discriminate against any person because such person has opposed
any discriminatory employment practice or because such person has filed
a complaint or testified or assisted in any proceeding under section 46a-82,
46a-83 or 46a-84 . . . .’’
6
General Statutes § 46a-82 (a) provides in relevant part: ‘‘Any person
claiming to be aggrieved by an alleged discriminatory practice . . . may,
by himself or herself or by such person’s attorney, file with the commission
a complaint in writing under oath . . . .’’
7
General Statutes § 46a-60 (b) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section . . . (8) [f]or an
employer, by the employer or the employer’s agent, for an employment
agency, 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 subdivision, be defined
as any unwelcome 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 employ-
ment, (B) submission 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 . . . .’’