Wallace v. Caring Solutions, LLC ( 2022 )

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TYISHA S. WALLACE v. CARING SOLUTIONS, LLC
(AC 43975)
Bright, C. J., and Alvord and Lavine, Js.
Syllabus
The plaintiff, a certified nursing assistant, sought to recover damages from
the defendant for an alleged violation of the Connecticut Fair Employ-
ment Practices Act (CFEPA) (§ 46a-60), for failing to hire the plaintiff,
who is hard of hearing, on the basis of her disability. During the hiring
interview with S, the owner and administrator of the defendant, the
plaintiff asked S to speak up, as she had trouble hearing her. S subse-
quently asked how the plaintiff would be able to hear her clients and
the plaintiff responded that she had no problem communicating with
her nonverbal autistic son. The interview continued with no further
questions regarding the plaintiff’s disability but, instead, focused on the
plaintiff’s sporadic work history. After the interview, S received a fax
containing employment discrimination information from the plaintiff’s
mother, which S interpreted as a potential threat of litigation. Thereafter,
the defendant did not hire the plaintiff. Subsequently, the plaintiff filed
her discrimination action with the trial court, which determined that
the plaintiff had not proven that the reason she was not hired by the
defendant was because of her hearing disability, and that the reasons
given by the defendant for not hiring the plaintiff, the gaps in her employ-
ment history, her reliability, and the fax sent by her mother, were not
due to intentional discrimination. On appeal to this court, the plaintiff
claimed, inter alia, that the trial court applied the incorrect legal standard
for determining the defendant’s liability under CFEPA. Held:
1. The plaintiff could not prevail on her claim that the trial court erred in
applying the but-for causation standard in reviewing her disability claim
pursuant to CFEPA, as the trial court properly applied the motivating
factor test as the causation standard, which required the plaintiff to
prove only that the illegal discrimination was a cause of the adverse
employment action: although the trial court’s decision did not state
which causation test it applied, the court’s use in its memorandum of
decision of the phrase ‘‘because of,’’ when it stated that the plaintiff
had failed to prove that she was not hired because of her hearing
disability, was not inconsistent with the court’s application of the motiva-
ting factor test, as both our Supreme Court and this court have interpre-
ted the phrase ‘‘because of’’ in CFEPA as incorporating the motivating
factor test; moreover, the language of the court’s memorandum of deci-
sion was completely consistent with its application of the motivating
factor test, as the court’s findings made clear that it concluded that the
plaintiff had failed to prove that her hearing disability played any role
in the defendant’s decision not to hire her and, therefore, was not a
motivating factor, the record having supported the court’s conclusion
in crediting S’s testimony that she decided not to hire the plaintiff
because she had concerns about the plaintiff’s work history and felt
threatened by the fax from the plaintiff’s mother.
2. Contrary to the plaintiff’s claim, statements in the defendant’s pretrial
brief alleging that the plaintiff was not hired because of concerns that
her hearing impairment could endanger her clients were not judicial
admissions: although it is possible that, in certain circumstances, an
attorney’s unequivocal representations of facts on behalf of his client
could constitute a judicial admission, the defendant made no clear,
deliberate and unequivocal or voluntary and knowing concessions of
fact, and, instead, set forth the arguments it intended to make based
on the evidence it expected to be admitted at trial and explicitly referred
to those statements as arguments, and those statements constituted, at
most, evidentiary admissions that the trial court was free to accept or
disregard; moreover, the plaintiff could not prevail on her claim that
the court’s findings were clearly erroneous in that the court failed to
give sufficient weight to the different explanations offered by the defen-
dant for not hiring the plaintiff, as the record sufficiently supported the
trial court’s finding that the plaintiff had failed to prove that she was
not hired because of her disability and the trial court was free to weigh
the evidence, consider the parties’ credibility, and decide the facts based
on all the information, and not just the particular statements on which
the plaintiff focused and, accordingly, regardless of the different state-
ments that the defendant made in its pretrial brief, the trial court’s
finding that the plaintiff failed to prove her discrimination claim was
not clearly erroneous.
Argued February 2—officially released July 5, 2022
Procedural History
Action to recover damages for alleged employment
discrimination, and for other relief, brought to the Supe-
rior Court in the judicial district of Hartford and tried to
the court, Honorable A. Susan Peck, judge trial referee;
judgment rendered for the defendant, from which the
plaintiff appealed to this court. Affirmed.
James V. Sabatini, with whom, on the brief, was
Zachary T. Gain, for the appellant (plaintiff).
George C. Schober, for the appellee (defendant).
Opinion
BRIGHT, C. J. The plaintiff, Tyisha S. Wallace, appeals
from the judgment of the trial court rendered after
a trial to the court in favor of the defendant, Caring
Solutions, LLC. On appeal, the plaintiff claims that the
court erred when it rendered judgment for the defen-
dant because the court (1) applied the wrong causation
standard to the plaintiff’s discrimination claim and (2)
failed to find that certain statements in the defendant’s
pretrial brief were binding judicial admissions and
ignored other statements made by the defendant that
conflicted with its purported, nondiscriminatory reason
for not hiring the plaintiff. We affirm the judgment of
the trial court.
The following facts, as found by the court, and proce-
dural history are relevant to our disposition of this
appeal. The plaintiff has been hard of hearing since
birth and a licensed certified nursing assistant since
2002. ‘‘She hears at a level of 40 percent in her left ear
and 20 percent in her right ear. . . . She is able to hear
with hearing aids and can [also] read lips . . . . She
can work as a [certified nursing assistant] provided she
wears hearing aids.’’ The defendant provides at-home
health care to elderly and disabled individuals ‘‘who
wish to remain in their homes and need help caring for
themselves.’’
On July 25, 2015, the plaintiff applied for a certified
nursing assistant position with the defendant by submit-
ting a preemployment screening form. ‘‘At the time of
her employment application with the defendant, the
plaintiff had sporadic work experience in home health
care. . . . When she first became a [certified nursing
assistant] in 2002, she worked mainly for nursing pool
agencies in nursing homes, including Maximum Health-
care and MGM Healthcare, but these were not listed
on either her application or her questionnaire. . . . Her
first job as a [certified nursing assistant] was at Avery
Heights in April, 2002. . . . In May, 2006, for a period
of time, she worked at Kettlebrook. . . . She was fired
from Kettlebrook for missing too many days of work.
. . . From January to March, 2012, she worked for
Comfort Keepers as a [certified nursing assistant]. . . .
From December, 2014 to July, 2015, she worked as a
[certified nursing assistant] or home health aide at
Interim Health Care, a home health care agency, but
ultimately was not able to work the number of hours
she had hoped.’’ (Footnote omitted.)
After submitting the prescreening form, the plaintiff
received a phone call from Carol Censki, the defen-
dant’s human resources administrator, who asked the
plaintiff to come in for an initial interview. On July 28,
2015, Censki interviewed the plaintiff and gave her a
preemployment exam, which the plaintiff passed. Cen-
ski then had the plaintiff complete a formal application
for a position with the defendant as either a full-time
or part-time caregiver.
On July 30, 2015, the plaintiff returned to the defen-
dant’s office for a second interview, this time with Cen-
ski and Sandra Sergeant, the owner and administrator
of the defendant. ‘‘Sergeant is a registered nurse who
has worked in hospitals, nursing homes and home
health care. . . . She started the defendant home
health care company in 2000 with ten employees. . . .
She now employs approximately eighty-five people.
. . . The defendant provides home health aides for
elderly and disabled clients. . . . It is a requirement of
the job of a home health aide to be able to hear the
clients he/she is serving. . . . Sergeant has interviewed
thousands of potential employees. . . . Reliability is
an essential qualification for a home health aide. . . .
Sergeant evaluates the reliability of potential employees
based on their work history. . . . The defendant has
hired individuals as home health aides with disabilities
and has made reasonable accommodations in the past.
. . . The defendant hires and trains some [home] health
aides directly out of school and also sometimes hires
experienced home health aides for a probationary
period.’’ During the interview, Sergeant questioned the
plaintiff about her certified nursing assistant license,
her work experience, and several gaps in her employ-
ment history. Approximately twenty to twenty-five
minutes into the interview, the plaintiff asked Sergeant
to speak up and then informed Sergeant and Censki
that she was hard of hearing. Sergeant responded by
asking the plaintiff how she would hear her clients. The
plaintiff replied that ‘‘she had a nonverbal autistic child
with whom she had no trouble communicating.’’ Ser-
geant found this explanation plausible. The interview
continued for another ten minutes, during which time
Sergeant mostly focused on the plaintiff’s work history
because it was sporadic.
After the interview, Sergeant went to her office to
get a business card to give to the plaintiff. While the
plaintiff and Censki waited for Sergeant to return, the
plaintiff told Censki that she had a really hard time
hearing Sergeant. When Sergeant returned, she gave
the plaintiff her business card and told the plaintiff to
call her. The plaintiff, however, never called Sergeant
as requested.
‘‘Following the interview, the plaintiff’s feelings were
hurt and her self-esteem damaged. . . . She was upset,
started crying, and called her mother, Mitzi Treadwell-
Green, who is also a registered nurse. . . . Treadwell-
Green was ‘appalled’ and indignant to learn that Ser-
geant had asked the plaintiff if she was going to hear
the clients. . . . She asked the plaintiff for Sergeant’s
contact information and told the plaintiff that she was
going to fax Sergeant some information about discrimi-
nation.’’ Thereafter, Treadwell-Green ‘‘faxed Sergeant
a document in the form of a notice issued by the Con-
necticut Department of Labor’’ concerning ‘‘[d]iscrimi-
nation laws regarding disabilities.’’ Sergeant was
shocked to receive the fax and believed it was ‘‘some
sort of implied threat.’’ The defendant did not hire the
plaintiff. Then, on July 13, 2017, the plaintiff filed a
one count complaint alleging that the defendant had
violated the Connecticut Fair Employment Practices
Act (CFEPA), General Statutes § 46a-60,1 because the
defendant had ‘‘failed to hire the plaintiff on the basis
of her hearing impairment’’ and, thus, had ‘‘intentionally
discriminated against the plaintiff.’’ On August 15, 2018,
the defendant filed an answer and special defenses to
the plaintiff’s complaint. The defendant denied the
plaintiff’s allegations of discrimination and, as a special
defense, pleaded that ‘‘[t]he defendant had legitimate
nondiscriminatory reasons for not hiring the plaintiff.’’
A two day trial to the court was held on June 6 and
7, 2019. At trial, Sergeant testified that she initially had
concerns about hiring the plaintiff because of her lim-
ited work history and the significant gaps in that work
history. Although the plaintiff had been a licensed certi-
fied nursing assistant since 2002, she had ‘‘sporadic
work experience in home health care.’’ Given her work
history, Sergeant was not confident that the plaintiff
would be a reliable employee. Sergeant also testified
that receiving the fax further compounded her concerns
about hiring the plaintiff. Sergeant also testified that
she had hired and accommodated employees with disa-
bilities in the past. According to Sergeant, it was due
to her concerns about the plaintiff’s reliability and the
fax that she received from Treadwell-Green, and not
because of the plaintiff’s hearing impairment, that she
decided not to hire the plaintiff. The court found Ser-
geant’s testimony as to her reasons for not hiring the
plaintiff to be credible and persuasive.
The court found that the plaintiff had proven ‘‘by a
preponderance of the evidence that she is disabled
within the meaning of CFEPA’’ and had ‘‘established
that she is able to perform the essential functions of the
job as a home health aide or [certified nursing assistant]
with reasonable accommodation in the form of hearings
aids.’’ The court also found, however, that the plaintiff
‘‘has not proven . . . that the reason she was not hired
by the defendant was because of her hearing disability,
or that the defendant was unwilling to accept her as
an employee with hearing aids as a reasonable accom-
modation. Rather, the court finds that the reasons given
by the defendant for not hiring the plaintiff . . . were
not due to intentional discrimination because of the
plaintiff’s disability.’’ Accordingly, the court rendered
judgment for the defendant. The plaintiff appealed.
I
The plaintiff first claims that the court applied the
incorrect legal standard for determining the defendant’s
liability when it concluded that the plaintiff’s disability
was not the ‘‘but-for’’ cause of the defendant’s failure
to hire her instead of considering whether her disability
was a ‘‘motivating factor’’ in the defendant’s hiring deci-
sion. The difference between the two tests is significant.
Under the but-for test, the plaintiff must establish that
the illegal discrimination was the cause of the adverse
employment action. Under the motivating factor test,
the plaintiff must prove only that the illegal discrimina-
tion was a cause of the adverse employment action.
Specifically, the plaintiff argues that CFEPA, properly
interpreted, does not require a plaintiff to prove but-
for causation. The plaintiff further claims that under
the motivating factor test, the court would have been
required to render judgment for her because the evi-
dence established that her hearing disability was a
cause of the defendant’s decision not to hire her. The
defendant argues that, pursuant to the United States
Supreme Court’s decision in Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 173–78, 129 S. Ct. 2343, 174
L. Ed. 2d 119 (2009), which determined that the but-
for test, not the motivating factor test, was appropriate
for claims under the Age Discrimination in Employment
Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and, which
the United States Court of Appeals for the Second Cir-
cuit has since applied to claims arising under the Ameri-
cans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101
et seq., the plaintiff must establish but-for causation
under the similarly worded CFEPA. Alternatively, the
defendant argues that, even if the motivating factor test
is applied, it is clear from the court’s findings that the
plaintiff’s disability played no role in the defendant’s
decision not to hire her. We agree with the plaintiff that
the correct causation standard under CFEPA is the
motivating factor test. We disagree, however, with the
plaintiff’s claim that the court failed to apply the motiva-
ting factor test in resolving the underlying action.
A
We begin by addressing whether the proper causation
standard under CFEPA is the but-for or motivating fac-
tor test. Resolving this issue requires us to interpret
the provisions of CFEPA to determine the appropriate
burden of proof a plaintiff must meet to prove that an
employer’s adverse employment action was caused by
discriminatory conduct. ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . Because issues of statutory construc-
tion raise questions of law, they are subject to plenary
review on appeal.’’ (Internal quotation marks omitted.)
Robinson v. Tindill, 208 Conn. App. 255, 264, 264 A.2d
1063, cert. denied, 340 Conn. 917, 265 A.3d 926 (2021).
General Statutes § 46a-60 (b) provides in relevant
part: ‘‘It shall be a discriminatory practice in violation
of this section . . . [f]or an employer, by the employer
or the employer’s agent, except in the case of a bona
fide occupational qualification or need, to refuse to
hire or employ . . . any individual . . . because of the
individual’s race, color, religious creed, age, sex, gender
identity or expression, marital status, national origin,
ancestry, present or past history of mental disability,
intellectual disability, learning disability, physical dis-
ability, including, but not limited to, blindness or status
as a veteran. . . .’’ The question we must decide is
whether the ‘‘because of’’ language in the statute
requires a plaintiff to establish but-for causation, as
the defendant contends, or merely that discrimination
based on one or more of the enumerated statutory char-
acteristics was a motivating factor in the decision not
to hire. Although neither our Supreme Court nor this
court has addressed this precise issue, a number of
Superior Court and United States District Court deci-
sions have. There is a split of authority among those
courts. Compare Weisenbach v. LQ Management,
United States District Court, Docket No. 3:13-CV-01663
(MPS) (D. Conn. September 25, 2015) (motivating factor
standard applies to CFEPA claims), and Wagner v.
Board of Trustees, Superior Court, judicial district of
Hartford, Docket No. CV-XX-XXXXXXX-S (January 30,
2012) (same), with Fasoli v. Stamford, 64 F. Supp. 3d
285, 313 (D. Conn. 2014) (but-for standard applies to
CFEPA claims), and Marasco v. Connecticut Regional
Vocational-Technical School System, Superior Court,
judicial district of Waterbury, Docket No. CV-09-
5014324-S (October 15, 2012) (54 Conn. L. Rptr. 812)
(same), rev’d in part on other grounds, 153 Conn. App.
146, 100 A.3d 930 (2014), cert. denied, 316 Conn. 901,
111 A.3d 469 (2015). To put those decisions and our
analysis in the proper context, some history is helpful.
In Levy v. Commission on Human Rights & Oppor-
tunities, 236 Conn. 96, 104–109, 671 A.2d 349 (1996), a
case in which the plaintiff asserted a CFEPA claim
based on alleged discrimination due to a hearing disabil-
ity, our Supreme Court discussed the two models used
at that time by courts to allocate the burden of proof,
and, accordingly, to establish the proper causation stan-
dard, in a disparate treatment case under CFEPA: the
mixed-motive model and the pretextual model. The
mixed-motive model originated in the United States
Supreme Court’s decision in Price Waterhouse v. Hop-
kins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d
268 (1989) (plurality opinion), wherein a plurality of
the court applied the model to a sex discrimination
claim under Title VII of the Civil Rights Act of 1964
(Title VII), 42 U.S.C. § 2000e et seq. ‘‘A mixed-motive
case exists when an employment decision is motivated
by both legitimate and illegitimate reasons. . . . In
such instances, a plaintiff must demonstrate that the
employer’s decision was motivated by one or more pro-
hibited statutory factors. Whether through direct evi-
dence or circumstantial evidence, a plaintiff must sub-
mit enough evidence that, if believed, could reasonably
allow a [fact finder] to conclude that the adverse
employment consequences resulted because of an
impermissible factor. . . .
‘‘The critical inquiry [in a mixed-motive case] is
whether [a] discriminatory motive was a factor in the
[employment] decision at the moment it was made.
. . . Under this model, the plaintiff’s prima facie case
requires that the plaintiff prove by a preponderance of
the evidence that he or she is within a protected class
and that an impermissible factor played a motivating
or substantial role in the employment decision. . . .
‘‘Once the plaintiff has established his prima facie
case, the burden of production and persuasion shifts
to the defendant. [T]he defendant may avoid a finding
of liability only by proving by a preponderance of the
evidence that it would have made the same decision
even if it had not taken [the impermissible factor] into
account.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Levy v. Commission on
Human Rights & Opportunities, supra, 236 Conn. 105–
106.
In contrast, under the pretextual model, also called
the McDonnell Douglas-Burdine2 model, a plaintiff may
establish discrimination by inference rather than direct
evidence. ‘‘Often, a plaintiff cannot prove directly the
reasons that motivated an employment decision. Never-
theless, a plaintiff may establish a prima facie case of
discrimination through inference by presenting facts
[that are] sufficient to remove the most likely bona fide
reasons for an employment action . . . . From a show-
ing that an employment decision was not made for
legitimate reasons, a fact finder may infer that the deci-
sion was made for illegitimate reasons. It is in these
instances that the McDonnell Douglas-Burdine model
of analysis must be employed. . . .
‘‘The plaintiff’s burden of establishing a prima facie
case is not onerous under this model. . . . The plaintiff
need prove only four elements by a preponderance of
the evidence: (1) that he or she belongs to a protected
class; (2) that he or she applied and was qualified for
the position in question; (3) that despite his or her
qualifications, the individual was rejected; and (4) that
after the individual was rejected, the position remained
open. . . . Once a plaintiff has established a prima
facie case of discrimination, a presumption of discrimi-
nation is created.
‘‘Under the McDonnell Douglas-Burdine model, the
burden of persuasion remains with the plaintiff. . . .
Once the plaintiff establishes a prima facie case, how-
ever, the burden of production shifts to the defendant to
rebut the presumption of discrimination by articulating
(not proving) some legitimate, nondiscriminatory rea-
son for the plaintiff’s rejection. . . . Because the plain-
tiff’s initial prima facie case does not require proof of
discriminatory intent, the McDonnell Douglas-Burdine
model does not shift the burden of persuasion to the
defendant. Therefore, [t]he defendant need not per-
suade the court that it was actually motivated by the
proffered reasons. . . . It is sufficient if the defen-
dant’s evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff. . . .
Once the defendant offers a legitimate, nondiscrimina-
tory reason, the plaintiff then has an opportunity to
prove by a preponderance of the evidence that the prof-
fered reason is pretextual. . . .
‘‘The McDonnell Douglas-Burdine analysis keeps the
doors of the courts open for persons who are unable
initially to establish a discriminatory motive. If a plain-
tiff, however, establishes a Price Waterhouse prima
facie case, thereby proving that an impermissible rea-
son motivated a defendant’s employment decision, then
the McDonnell Douglas-Burdine model does not apply,
and the plaintiff should receive the benefit of the defen-
dant bearing the burden of persuasion.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Id., 107–109.
In Levy, the hearing officer found that the plaintiff
was transferred from his position as an out of the area
remote driver ‘‘because of his hearing disability.’’
(Emphasis in original.) Id., 109. Our Supreme Court
held that ‘‘[t]his . . . finding, standing alone, is direct
evidence of an impermissible motive for transferring
the plaintiff. . . . Because we conclude that the plain-
tiff had produced evidence that [the employer] was
motivated, at least in part, by his disability in deciding
to transfer him, we hold that the hearing officer should
have used the mixed-motive model of analysis.’’
(Emphasis added; footnote omitted.) Id., 109–10.
Although the court in Levy did not discuss the but-
for test as a possible alternative to the motivating factor
test, its analysis is important to our conclusion. The
court clearly applied the motivating factor test to a
claim of disability discrimination under CFEPA. Id., 109.
Furthermore, it did so explicitly, relying on the hearing
officer’s finding that the plaintiff was transferred
‘‘because of’’ his hearing disability. Id., 109–10. Thus,
the court concluded that the phrase ‘‘because of,’’ the
precise statutory words at issue in the present case, is
consistent with the application of the motivating factor
test. Id. Since Levy, both our Supreme Court and this
court repeatedly have held that the applicable causation
standard under CFEPA is the motivating factor test. See,
e.g., Board of Education v. Commission on Human
Rights & Opportunities, 266 Conn. 492, 505, 832 A.2d
660 (2003) (‘‘[w]hen a [complainant] alleges disparate
treatment, liability depends on whether the protected
trait . . . actually motivated the employer’s decision’’
(footnote omitted; internal quotation marks omitted));
Phadnis v. Great Expression Dental Centers of Con-
necticut, P.C., 170 Conn. App. 79, 90–91, 153 A.3d 687(2017) (‘‘the plaintiff is not required to show that the
employer’s proffered reasons were false or played no
role in the employment decision, but only that they
were not the only reasons and that the prohibited factor
was at least one of the motivating factors’’ (internal
quotation marks omitted)). Based on this precedent, it
would appear that the motivating factor test is clearly
the causation standard that applies to claims of disabil-
ity discrimination that are brought pursuant to CFEPA.
Nevertheless, the defendant argues that our Supreme
Court’s analysis in Levy is outdated and should be aban-
doned because it relied on the plurality opinion in Price
Waterhouse v. Hopkins, supra, 490 U.S. 228, which the
United States Supreme Court disavowed in Gross v.
FBL Financial Services, Inc., supra, 557 U.S. 167, and
its progeny, as to all discrimination claims except those
based on an employee’s race, color, religion, sex, or
national origin. In Gross, the United States Supreme
Court considered whether the causation standard under
the ADEA was the but-for test or the motivating factor
test and determined that the applicable causation stan-
dard was the but-for test. See Gross v. FBL Financial
Services, Inc., supra, 557 U.S. 176–78. The court reached
this conclusion by comparing the statutory language of
Title VII, which specifically states that the motivating
factor test applies to claims brought pursuant to Title
VII for discrimination based on race, color, religion,
sex, or national origin, to that of the ADEA, which is
silent as to the motivating factor test. Id., 176–78. The
court then determined that, because ‘‘[u]nlike Title VII,
the ADEA’s text does not provide that a plaintiff may
establish discrimination by showing that age was simply
a motivating factor’’; id., 174; and because the plain
language of the ADEA instead uses the phrase
‘‘ ‘because of,’ ’’ which means ‘‘ ‘by reason of’ ’’ and ‘‘ ‘on
account of,’ ’’ that ‘‘the ordinary meaning of the ADEA’s
requirement that an employer took adverse action
‘because of’ age is that age was the ‘reason’ that the
employer decided to act.’’ (Emphasis added.) Id., 176.
Therefore, on the basis of the ADEA’s use of the phrase
because of, the court held that ‘‘a plaintiff bringing a
disparate-treatment claim pursuant to the ADEA must
prove, by a preponderance of the evidence, that age
was the ‘but-for’ cause of the challenged adverse
employment action.’’ Id., 180.
Relying on the court’s analysis in Gross, the United
States Court of Appeals for the Second Circuit recently
held that the but-for test also applied to a disability
discrimination claim brought pursuant to Section 504
of the Rehabilitation Act of 1973 (Rehabilitation Act),
29 U.S.C. § 794 (a) through (d). See Natofsky v. New
York, 921 F.3d 337, 347–50 (2d Cir. 2019), cert. denied,
U.S. , 140 S. Ct. 2668, 206 L. Ed. 2d 822 (2020).
In reaching this conclusion, the Second Circuit first
held that, ‘‘when a plaintiff alleges an employment dis-
crimination claim under the Rehabilitation Act, the cau-
sation standard that applies is the same one that would
govern a complaint alleging employment discrimination
under the ADA.’’ Id., 345. The Second Circuit then
agreed with the defendant that the but-for test applied
to claims asserted under the ADA because the United
States Supreme Court’s decisions in Gross and Univer-
sity of Texas Southwestern Center v. Nassar, 570 U.S.
338, 133 S. Ct. 2517, 186 L. Ed. 2d 503 (2013), effectively
overruled cases that had applied the motivating factor
test to such claims. Natofsky v. New York, supra, 347.
The Second Circuit then explained at length how the
United States Supreme Court’s jurisprudence had
evolved on this issue. Id., 347–49.
‘‘The mixed-motive test originates from Title VII,
which prohibits employment discrimination because of
an individual’s race, color, religion, sex, or national
origin. . . . In 1989, the Supreme Court in Price Water-
house . . . read the prohibition against acting because
of a discriminatory motive to mean that an employer
cannot take any illegal criterion into account. . . .
Thus, a defendant would be liable under Title VII if a
plaintiff could demonstrate that discrimination was a
motivating factor in the defendant’s adverse employ-
ment action. . . . A defendant, however, could avoid
all liability if it could prove it would have taken the
same action regardless of any impermissible consider-
ation. . . .
‘‘In 1991, Congress amended Title VII and determined
that an unlawful employment practice is established
when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other
factors also motivated the practice. . . . Congress dis-
agreed that an employer could avoid all liability by
proving it would still have taken the same adverse
action in the absence of discriminatory motivation.
Instead, where an employer could demonstrate that it
would have taken the adverse action even in the
absence of discriminatory motivation, Congress denied
the plaintiff damages and limited the plaintiff’s remedies
to declaratory relief, injunctive relief . . . and attor-
ney’s fees and costs. . . . Even though Price Water-
house and the subsequent 1991 Congressional amend-
ments dealt only with Title VII, the majority of circuit
courts, including [the Second Circuit], held that the
mixed-motive burden-shifting framework applied
equally to other anti-discrimination statutes that
employed the because of causation language, including,
prior to 2008, the ADA. . . .
‘‘In 2009, the Supreme Court in Gross addressed
whether Title VII’s motivating factor standard applied
outside of the Title VII context to claims brought under
the [ADEA] which prohibits employers from discrimi-
nat[ing] against any individual . . . because of such
individual’s age. . . . The [c]ourt held that it did not
because [u]nlike Title VII, the ADEA’s text does not
provide that a plaintiff may establish discrimination by
showing that age was simply a motivating factor. . . .
Furthermore, the [c]ourt found that Congress must have
omitted the language intentionally because, at the time
it added §§ 2000e-2 (m) and 2000e-5 (g) (2) (B) to Title
VII, Congress . . . contemporaneously amended the
ADEA in several ways. . . . Examining the text of the
ADEA, the [c]ourt concluded that the words because
of mean that age was the reason that the employer
decided to act. . . . Thus, the [c]ourt held that a plain-
tiff must prove that age was the but-for cause of the
employer’s adverse decision—not just a motivating fac-
tor. . . .
‘‘In Nassar, the Supreme Court revisited the principle
defined in Gross: that the text of an anti-discrimination
statute must expressly provide for a motivating factor
test before that test can be applied. The [c]ourt held
that even though Title VII permits mixed-motive causa-
tion for claims based on the personal characteristics of
race, color, religion, sex, or national origin (i.e., status-
based discrimination), it does not permit mixed-motive
causation for retaliation-based claims. . . . The [c]ourt
based its holding on the text and structure of Title VII.
. . . It noted that § 2000e-2 (m), which contains the
mixed-motive causation provision, mentions just the
. . . status-based [factors]; and . . . omits the final
two, which deal with retaliation. . . . It also noted that
Congress inserted [the mixed-motive test] within the
section of the statute that deals only with [the status-
based factors], not the section that deals with retaliation
claims or one of the sections that apply to all claims
of unlawful employment practices. . . . Because,
according to the [c]ourt, Title VII has a detailed struc-
ture, the [c]ourt could conclude that Congress knew
how to word the mixed-motive provision to encompass
the anti-retaliation section and intentionally chose not
to do so. . . . As a result, Title VII retaliation must be
proved according to traditional principles of but-for
causation, not the lessened causation test stated in
§ 2000e-2 (m). . . .
‘‘Gross and Nassar dictate our decision here. The
ADA does not include a set of provisions like Title VII’s
§ 2000e-2 (m) (permitting a plaintiff to prove employ-
ment discrimination by showing that discrimination
was a motivating factor in the adverse decision) and
§ 2000e-5 (g) (2) (B) (limiting the remedies available
to plaintiffs who can show that discrimination was a
motivating factor but not a but-for cause of the adverse
decision). There is no express instruction from Con-
gress in the ADA that the motivating factor test applies.
Moreover, when Congress added § 2000e-2 (m) to Title
VII, it contemporaneously amended the ADA but did
not amend it to include a motivating factor test. . . .
We, therefore, join the conclusion reached by the
Fourth, Sixth, and Seventh Circuits that the ADA
requires a plaintiff alleging a claim of employment dis-
crimination to prove that discrimination was the but-
for cause of any adverse employment action.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Natofsky v. New York, supra, 921 F.3d 347–48.
Relying on the Second Circuit’s analysis in Natofsky,
the defendant argues that we should apply the but-for
test to claims brought under CFEPA because CFEPA
includes the same ‘‘because of’’ language that federal
courts have equated with but-for causation and the stat-
ute contains no explicit reference to the motivating
factor test. In making this argument, the defendant
notes that we regularly look to federal employment
discrimination cases when applying CFEPA; see Curry
v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d
925 (2008); and further notes that a number of courts
have held that Connecticut courts construe disability
discrimination claims under CFEPA similarly to how
discrimination claims are construed under the ADA.
See, e.g., Hopkins v. New England Health Care Employ-
ees Welfare Fund, 985 F. Supp. 2d 240, 255 (D. Conn.
2013) (‘‘[d]iscriminatory claims brought under CFEPA
. . . are construed similarly to ADA claims, with Con-
necticut courts reviewing federal precedent concerning
employment discrimination and retaliation for guidance
in enforcing the CFEPA’’); see also Young v. Precision
Metal Products, Inc., 599 F. Supp. 2d 216, 228 (D.
Conn. 2009).
As noted previously in this opinion, since the United
States Supreme Court’s decision in Gross, a number of
decisions from our Superior Court and the United States
District Court for the District of Connecticut have
addressed whether the proper test for a claim under
CFEPA is the but-for or motivating factor test. In Vale
v. New Haven, 197 F. Supp. 3d 389, 397–400 (D. Conn.
2016), Judge Charles S. Haight, Jr., catalogued those
decisions at that time and the rationale for each side
of the argument. More recently, in Soares v. Altice Tech-
nical Services US, LLC, United States District Court,
Docket No. 3:19-cv-1975 (JBA) (D. Conn. August 6,
2021), Judge Janet Bond Arterton noted: ‘‘The Connecti-
cut Supreme Court has not yet decided the issue, but
application of the Gross rule appears disfavored in Con-
necticut trial courts.’’ Until now, this court also has not
had the opportunity to resolve the issue. The present
case gives us that opportunity and, for the reasons that
follow, we conclude that, regardless of the United States
Supreme Court’s decision in Gross and the Second Cir-
cuit’s decision in Natofsky, the motivating factor test
remains the applicable causation standard under
CFEPA.
First, the Connecticut Supreme Court is the ultimate
authority on interpreting Connecticut statutes, includ-
ing CFEPA. See Johnson v. Manson, 196 Conn. 309, 319,
493 A.2d 846 (1985) (‘‘Connecticut is the final arbiter
of its own laws’’), cert. denied, 474 U.S. 1063, 106 S.
Ct. 813, 88 L. Ed. 2d 787 (1986). Although Connecticut’s
appellate courts often look to federal precedent regard-
ing employment discrimination for guidance in enforc-
ing our own antidiscrimination laws, we are not bound
by that precedent. See Curry v. Allan S. Goodman,
Inc., supra, 286 Conn. 415; Vollemans v. Wallingford,
103 Conn. App. 188, 199, 928 A.2d 586 (2007), aff’d,
289 Conn. 57, 956 A.2d 579 (2008). Moreover, as noted
previously, our appellate courts always have applied the
motivating factor test to discrimination claims under
CFEPA; see, e.g., Board of Education v. Commission
on Human Rights & Opportunities, supra, 266 Conn.
505; Levy v. Commission on Human Rights & Opportu-
nities, supra, 236 Conn. 109–10; and have continued to
do so even after the United States Supreme Court’s
decisions in Gross and Nassar. See Commission on
Human Rights & Opportunities ex rel. Arnold v. Forvil,
302 Conn. 263, 278, 25 A.3d 632 (2011) (applying motiva-
ting factor test two years after decision in Gross in case
involving claim of housing discrimination);3 Phadnis v.
Great Expression Dental Centers of Connecticut, P.C.,
supra, 170 Conn. App. 90–91 (applying motivating factor
test to pregnancy discrimination claim in 2017 after
decision in Nassar).
Second, the interpretive rationale that is the under-
pinning for Gross, simply does not apply to CFEPA.
The United States Supreme Court’s conclusion that the
but-for test applies to ADEA claims was based on the
fact that Title VII makes explicit reference to the motiva-
ting factor test and the ADEA does not. Thus, the
Supreme Court concluded that Congress must have
intended that the motivating factor test not apply to
age discrimination claims under the ADEA and was
instead limited to claims under Title VII based on race,
color, religion, sex, or national origin. The Second Cir-
cuit reached the same conclusion in Natofsky as to
disability claims under the ADA and the Rehabilitation
Act for the same reason. Neither of those acts makes
any reference to the motivating factor test.
Connecticut’s statutory scheme is much different.
Unlike at the federal level, where employment discrimi-
nation law divides prohibited employment practices
among various statutes,4 the traits protected at the fed-
eral level by Title VII, the ADA, and the ADEA are all
protected by a single statute in Connecticut, § 46a-60.
Thus, although at the federal level, there is a rationale
to utilize different causation standards depending on
the language of the act involved, the same cannot be
said for CFEPA. There is no basis for us to conclude
that our legislature intended one causation standard
for claims based on race, color, religion, sex, or national
origin and a more stringent standard for disability
based claims.
Furthermore, although our legislature has amended
CFEPA several times since its initial adoption in 1949,
it never has sought to alter the causation standard
applied by our Supreme Court and this court to discrimi-
nation claims brought under the act. CFEPA has always
provided that it is a violation of the act for any employer
to refuse to hire any individual ‘‘because of’’ any of the
listed traits. The legislature has never saw fit to define
the phrase ‘‘because of.’’ Significantly, it never amended
CFEPA to provide a clearer definition of ‘‘because of’’
after our Supreme Court equated it with the motivating
factor test in Levy. Nor did it provide a different defini-
tion of ‘‘because of’’ after the United States Supreme
Court equated it with the but-for test in Gross. The
legislature is presumed to be aware of the decisions of
our courts and those of the United States Supreme
Court. See Angelsea Productions, Inc. v. Commission
on Human Rights & Opportunities, 236 Conn. 681, 693,
674 A.2d 1300 (1996). Had the legislature concluded
that our Supreme Court incorrectly interpreted CFEPA
as incorporating the motivating factor test, it could have
amended the act, before or after Gross, to make clear
that for a plaintiff to prevail under CFEPA he or she
must show that the alleged discrimination was the but-
for cause of the adverse employment action. The fact
that the legislature has chosen not to do so, despite the
many times it has amended CFEPA, including on several
occasions since the United States Supreme Court
decided Gross, confirms for us that it intended the moti-
vating factor test, as set forth in Levy, to be the proper
causation standard. This conclusion is further but-
tressed by the fact that our legislature has chosen not
to follow the legislative approach taken by Congress
of adopting different statutes to address different types
of employment discrimination with varying causation
burdens. Our legislature’s decision to include multiple
types of unlawful employment discrimination within a
single statutory provision, without setting out distinc-
tive standards for the different types, leads to the logical
conclusion that it intended that the same standard of
proof be applied to all the types of discrimination set
forth in CFEPA.
Accordingly, we are persuaded that the motivating
factor test, and not the but-for test, remains the applica-
ble causation standard for claims of discrimination
under CFEPA, regardless of the federal precedent
established in Gross and its progeny.
B
Having concluded that the proper causation standard
is the motivating factor test, we turn to the plaintiff’s
claim that the court failed to apply that test to her
CFEPA claim. As stated earlier, the court found that
the plaintiff had not proven ‘‘that the reason she was
not hired by the defendant was because of her hearing
disability . . . .’’ (Emphasis added.) The plaintiff
argues on appeal that the court’s use of the phrase
‘‘because of’’ indicates that the court incorrectly
reviewed the plaintiff’s disability discrimination claim
according to the but-for causation standard. We dis-
agree.
Whether the court applied the correct legal standard
to the parties’ claims is a question of law subject to
our plenary review. United Public Service Employees
Union, Cops Local 062 v. Hamden, 209 Conn. App. 116,
123, 267 A.3d 239 (2021).
Nowhere in the court’s memorandum of decision did
it state which causation test it was applying. Instead, the
court merely stated that the plaintiff could not prevail
because she had failed to prove that she was not hired
because of her hearing disability. As previously dis-
cussed, although federal precedent has recently associ-
ated the phrase ‘‘because of’’ with the but-for test, the
phrase is not inconsistent with a court’s application of
the motivating factor test.5 In fact, both our Supreme
Court and this court have interpreted the ‘‘because of’’
language of CFEPA as incorporating the motivating fac-
tor test.
Moreover, the language of the court’s memorandum
of decision is completely consistent with its application
of the motivating factor test. The court found that the
plaintiff ‘‘has not proven . . . that the reason she was
not hired by the defendant was because of her hearing
disability, or that the defendant was unwilling to accept
her as an employee with hearing aids as a reasonable
accommodation. Rather, the court finds that the rea-
sons given by the defendant for not hiring the plaintiff
. . . were not due to intentional discrimination because
of the plaintiff’s disability.’’ The court’s findings make
clear that it concluded that the plaintiff had failed to
prove that her hearing disability played any role in the
defendant’s decision not to hire her and, therefore, was
not a motivating factor. This conclusion is further sup-
ported by the fact that the court credited Sergeant’s
testimony that she decided not to hire the plaintiff
because she had concerns about the plaintiff’s work
history and felt threatened by the fax from Treadwell-
Green, and that her decision had nothing to do with the
plaintiff’s hearing disability. Accordingly, we conclude
that the court applied the correct causation standard
to the plaintiff’s discrimination claim.
II
The plaintiff’s second claim on appeal, although not
entirely clear, appears to be twofold. First, the plaintiff
claims that the court erred when it refused to find that
certain statements in the defendant’s pretrial brief were
binding judicial admissions. Moreover, the plaintiff fur-
ther contends that had the court properly considered
those statements to be judicial admissions, it would
have concluded that the defendant’s purported reason
for not hiring the plaintiff was pretextual and that the
real reason she was not hired was because of her hear-
ing disability. Second, the plaintiff claims that because
the defendant gave so many different reasons for why
it did not hire the plaintiff, the court’s finding that the
plaintiff had failed to prove that the defendant failed
to hire her because of her hearing disability is clearly
erroneous. We are not persuaded by either claim.
The following additional procedural history is rele-
vant to these claims. Over the course of the litigation,
the defendant gave several explanations for why it did
not hire the plaintiff. In Sergeant’s affidavit in support
of the defendant’s motion for summary judgment, she
attested that the plaintiff ‘‘was not hired due to large
gaps in her employment history and her evasive answers
regarding that employment history,’’ as well as because
of the fax that Treadwell-Green sent following the plain-
tiff’s interview. Similarly, in response to an interroga-
tory submitted by the plaintiff asking the defendant to
‘‘[s]et forth in full detail the reason or reasons for not
hiring the plaintiff,’’ the defendant stated: ‘‘Plaintiff was
not hired due to her lack of work history and experi-
ence. Plaintiff could not or would not provide an expla-
nation for her lack of work history. Within thirty
minutes of leaving the interview, Defendant received,
via facsimile, a document with the subject line ‘Inter-
viewing Skills’ and ‘Discrimination Laws Regarding Dis-
abilities From Employers Receiving Federal Funding.’
Defendant viewed this facsimile as a threat of litigation
from Plaintiff.’’
In the defendant’s pretrial brief, however, the defen-
dant stated that it did not hire the plaintiff because:
‘‘Based upon the defendant’s interview with the plain-
tiff, during which the plaintiff was wearing her hearing
aids, the defendant believed that the plaintiff would be
unable to hear her clients and as such, the defendant
believed that the plaintiff could not perform the essen-
tial functions of the job.’’ The defendant further stated
that ‘‘the defendant will show that it needs to protect
its clients, and has acted in good faith upon that belief.
It is essential that a home health aide be able to hear
clients in their homes. An inability to hear a client would
place that client at risk and in danger if she needed
help. This is a legitimate nondiscriminatory reason for
the decision not to hire the plaintiff.’’
At trial, the plaintiff implored the court to find that
the statements in the defendant’s pretrial brief concern-
ing the reasons for why the plaintiff was not hired were
binding judicial admissions that the plaintiff’s hearing
disability was a motivating factor in the defendant’s
decision not to hire her. The court refused to do so,
stating: ‘‘The plaintiff’s argument that the court should
consider a statement in the defendant’s pre-trial brief
as a judicial admission is without merit. The role of the
trial judge in a trial to the court is to decide the facts of
the case by a preponderance of the admissible evidence
presented in court, not by the arguments of counsel
before any evidence is presented.’’ The plaintiff also
argued that the court should reject the explanation Ser-
geant offered at trial in light of the defendant’s varying
explanations pretrial for its failure to hire the plaintiff.
The court clearly rejected this argument because it
found Sergeant’s trial testimony to be credible and per-
suasive. We address each claim in turn.
A
We first consider the plaintiff’s claim that the state-
ments in the defendant’s pretrial brief alleging that the
plaintiff was not hired because of concerns that her
hearing impairment could endanger her clients were
judicial admissions. ‘‘Judicial admissions are voluntary
and knowing concessions of fact by a party or a party’s
attorney occurring during judicial proceedings. . . .
They excuse the other party from the necessity of pre-
senting evidence on the fact admitted and are conclu-
sive on the party making them. . . . The statement
relied on as a binding admission [however] must be
clear, deliberate and unequivocal. . . . The distinction
between judicial admissions and mere evidentiary
admissions is a significant one that should not be
blurred by imprecise usage. . . . While both types are
admissible, their legal effect is markedly different; judi-
cial admissions are conclusive on the trier of fact,
whereas evidentiary admissions are only evidence to
be accepted or rejected by the trier. . . .
‘‘In contrast with a judicial admission, which prohib-
its any further dispute of a party’s factual allegation
. . . [a]n evidential admission is subject to explanation
by the party making it so that the trier may properly
evaluate it. . . . Thus, an evidential admission, while
relevant as proof of the matter stated . . . [is] not con-
clusive. . . . The trier of fact is free to give as much
weight to [an evidential] admission as, in the trier’s
judgment, it merits, and need not believe the arguments
made regarding the statement by one side or the other.’’
(Internal quotation marks omitted.) Bowen v. Serksnas,
121 Conn. App. 503, 518 n.12, 997 A.2d 573 (2010); see
also Northeast Builders Supply & Home Centers, LLC
v. RMM Consulting, LLC, 202 Conn. App. 315, 338, 245
A.3d 804 (‘‘[f]actual allegations contained in pleadings
upon which the cause is tried are considered judicial
admissions and hence irrefutable as long as they remain
in the case’’ (emphasis in original; internal quotation
marks omitted)), cert. denied, 336 Conn. 933, 248 A.3d
709 (2021).
Our standard of review of a trial court’s failure to
recognize a statement as a judicial admission depends
on the issue before the court. Whether a statement in
a pleading amounts to a judicial admission involves
the interpretation of the pleading, which presents a
question of law as to which our review is plenary. Id.,
339. Where, however, the claimed judicial admission is
a statement made outside of the pleadings, for example
a representation by a party’s attorney to the court, con-
text surrounding the statement may be important. In
such circumstances, ‘‘[a] court’s determination of
whether a particular statement made by a party in litiga-
tion is a judicial admission involves a factual determina-
tion.’’ National Amusements, Inc. v. East Windsor, 84
Conn. App. 473, 482, 854 A.2d 58 (2004). In the present
case, the alleged judicial admissions were set forth in
the defendant’s pretrial brief. Although the brief was
not a pleading, it could be argued that any unequivocal
concession contained therein is more akin to a conces-
sion in a pleading than it is to an oral representation
made by counsel and, therefore, should be subject to
plenary review. Having said that, argumentative state-
ments in a pretrial brief, like the ones at issue in this
case, are part of the advocacy process that should be
considered in the context of other positions and repre-
sentations the party or its counsel has made to the court.
Which standard of review we apply here is unimportant
because even under a plenary review it is clear that the
statements at issue do not qualify as judicial admis-
sions.
Statements made in a party’s pleadings are unques-
tionably judicial admissions. Northeast Builders Sup-
ply & Home Centers, LLC v. RMM Consulting, LLC,
supra, 202 Conn. App. 338. For example, if in its answer
a defendant admits an allegation pleaded by the plaintiff
in its complaint, the defendant is deemed to have admit-
ted the allegation and the plaintiff need not present any
evidence to prove the allegation at trial. In the present
case, there is no claim that the defendant made such
an admission in its answer. As previously noted, the
statements in the present case on which the plaintiff
relies were made in the defendant’s pretrial brief, not
in a pleading. Nevertheless, the plaintiff argues that
statements made by the defendant’s counsel to the court
outside of the pleadings can constitute judicial admis-
sions. We agree that it is possible that in certain circum-
stances an attorney’s unequivocal representations of
facts on behalf of his client can constitute a judicial
admission. See National Amusements, Inc. v. East
Windsor, supra, 84 Conn. App. 483 (court considered
but rejected claim that counsel’s concession was judi-
cial admission because of context in which concession
was made); Macy v. Lucas, 72 Conn. App. 142, 153,
804 A.2d 971 (court considered whether statements in
closing were judicial admission as to plaintiff’s injuries
and concluded that ‘‘[n]o reasonable view of the defen-
dants’ closing argument favors the plaintiff’s claim that
the defendants made a judicial admission through their
statements’’), cert. denied, 262 Conn. 905, 810 A.2d 272(2002). For example, where a defendant’s counsel in a
pretrial brief or in an opening statement unequivocally
concedes that the defendant is liable for the plaintiff’s
injuries and the only issue in dispute is damages, it is
appropriate for the court to treat such a concession as
a judicial admission.
In the present case, the defendant made no such
‘‘clear, deliberate and unequivocal’’ or ‘‘voluntary and
knowing concessions of fact.’’ Bowen v. Serksnas,
supra, 121 Conn. App. 518 n.12. Instead, the defendant
set forth the arguments it intended to make based on
the evidence it expected to be admitted at trial. Indeed,
the defendant prefaced the statements made in its pre-
trial brief on which the plaintiff relies by explicitly refer-
ring to them as arguments, stating that the ‘‘[d]efendant
will argue that it believed that the plaintiff was not
qualified to perform the essential functions of the job
[and] that the defendant had legitimate business rea-
sons for its failure to hire the plaintiff . . . .’’ (Empha-
sis added.) Previewing arguments that a party antici-
pates making is not the same as clearly and
unequivocally stating a fact. The defendant here did the
former, not the latter, in its pretrial brief. See Straw
Pond Associates, LLC v. Fitzpatrick, Mariano & San-
tos, P.C., 167 Conn. App. 691, 709, 145 A.3d 292 (state-
ments in party’s brief were not judicial admissions),
cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
For these reasons, we conclude that the statements
the defendant made in its pretrial brief were argumenta-
tive in nature and thus constituted, at most, evidentiary
admissions that the court was free to accept or disre-
gard. See Bowen v. Serksnas, supra, 121 Conn. App.
518 n.12 (evidentiary admissions represent question for
trier of fact and are not conclusive).
B
We next consider the plaintiff’s argument that the
court failed to give sufficient weight to the different
explanations offered by the defendant for not hiring
the plaintiff when it concluded that she failed to prove
that her disability was a motivating factor for the deci-
sion not to hire her. Essentially, the plaintiff argues that
the court’s finding that the plaintiff failed to prove that
she was not hired because of her hearing disability was
clearly erroneous. ‘‘A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
Commissioner of Transportation v. Lagosz, 189 Conn.
App. 828, 841, 209 A.3d 709, cert. denied, 333 Conn. 912,
215 A.3d 1210 (2019).
The plaintiff is correct that the defendant’s reasons
for why it did not hire her were different over the course
of the proceedings. Because of the varying explanations
propounded by the defendant, however, it was up to
the court to weigh the evidence, to consider the credibil-
ity of the parties, and to decide the facts of the case
based on all of that information, not just the particular
statements on which the plaintiff focuses. See, e.g.,
State v. Thompson, 307 Conn. 567, 575, 57 A.3d 323(2012) (‘‘the weighing of the evidence is the province
of the trial court’’); State v. Trine, 236 Conn. 216, 227,
673 A.2d 1098 (1996) (‘‘[t]he determination of a witness’
credibility is the special function of the trial court’’
(internal quotation marks omitted)). The court here did
that and concluded that the plaintiff had failed to prove
that ‘‘the reason she was not hired . . . was because
of her hearing disability.’’ This conclusion was based
in large part on the evidence that the defendant pre-
sented at trial, including Sergeant’s testimony, which
the court explicitly credited, that she did not hire the
plaintiff because of the gaps in her employment history,
apprehensions over whether she would be a reliable
employee, and concerns raised by the fax that
Treadwell-Green sent after the plaintiff’s interview.
Given this testimony, there was evidence in the
record to support the court’s finding that the plaintiff
had failed to prove that she was not hired because of
her disability. Thus, regardless of the different state-
ments that the defendant made in its pretrial brief, we
cannot say that the court’s finding that the plaintiff
failed to prove her discrimination claim was clearly
erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff initially filed a complaint against the defendant with the
Commission on Human Rights and Opportunities (commission). Pursuant
to General Statutes § 46a-100, the plaintiff obtained a release of jurisdiction
from the commission before she filed the complaint at issue in the pres-
ent case.
2
See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252–56,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2 668 (1973).
3
The claim in Forvil was brought under General Statutes § 46a-64, which
prohibits discrimination in public housing accommodation ‘‘because of’’ the
same traits that are identified in § 46a-60.
4
More specifically, Title VII prohibits discrimination on the basis of race,
color, religion, sex, and national origin; see 42 U.S.C. § 2000e et seq. (2018);
the ADEA prohibits discrimination on the basis of age; see 29 U.S.C. § 621et seq. (2018); and the ADA prohibits discrimination on the basis of physical
disability. See 42 U.S.C. § 12101 (2018).
5
We also note that the court in this case, Honorable A. Susan Peck, judge
trial referee, has held in other cases that the proper causation standard
under the act is the motivating factor test, even in light of the conflicting
decision in Gross. See, e.g., Wagner v. Board of Trustees, supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S.