Fernandez v. Mac Motors, Inc. ( 2021 )

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GLORIA FERNANDEZ v. MAC MOTORS, INC.
(AC 43618)
Bright, C. J., and Alvord and Devlin, Js.
Syllabus
The plaintiff sought to recover damages from the defendant, her former
employer, for alleged discrimination and the creation of a hostile work
environment on the basis of her gender in violation of the applicable
provision (§ 46a-60) of the Connecticut Fair Employment Practices Act.
The plaintiff, who had been a finance manager at the defendant’s car
dealership, claimed that she had been paid less than male employees
who performed the same job and that she had been subjected to mistreat-
ment by four male managers, which included sporadic incidents of
yelling. She further alleged that male employees made remarks in the
workplace that were crude and demeaning to women. The plaintiff
initially brought an action in the United States District Court for the
District of Connecticut, in which she alleged that the defendant had
violated the federal Equal Pay Act of 1963 (29 U.S.C. § 206 et seq.).
While the federal action was pending, the plaintiff filed a complaint with
the Commission on Human Rights and Opportunities, in which she
alleged violations of § 46a-60. The commission thereafter issued to the
plaintiff a release of jurisdiction letter that authorized her to bring this
action in the Superior Court. During the pendency of that action, the
District Court rendered summary judgment for the defendant. The trial
court then granted the defendant’s motion for summary judgment on
the grounds that the plaintiff’s gender discrimination claim was barred
by the doctrine of res judicata and that the evidence she presented was
insufficient to raise a genuine issue of material fact as to her hostile
work environment claim. On the plaintiff’s appeal to this court, held:
1. The trial court correctly determined that res judicata barred the plaintiff’s
gender discrimination claim: contrary to the plaintiff’s assertion that
the statute of limitations for Equal Pay Act claims required her to litigate
that claim before her gender discrimination claim, there was no genuine
issue of material fact that she was not jurisdictionally barred from
bringing the gender discrimination claim in the District Court, as she
failed to take advantage of available options that included filing the
Equal Pay Act claim in the District Court, then seeking a stay of that
action until the proceeding before the commission concluded, amending
the Equal Pay Act complaint to add the gender discrimination claim after
the commission issued the release of jurisdiction letter, or exhausting
her administrative remedies before the commission, then filing both the
Equal Pay Act and gender discrimination claims in the District Court;
moreover, as the complaint before the trial court and the pleadings in
the District Court contained virtually identical allegations, and involved
the same parties and conduct that occurred during the same time period,
the combined facts of both actions constituted a single transaction that
would have formed a convenient trial unit for the District Court, which
would not have been unexpected by the parties; furthermore, the plaintiff
failed to present any evidence to suggest that the District Court would
have declined to exercise supplemental jurisdiction over her gender
discrimination claim, as federal courts routinely, and properly, exercise
supplemental jurisdiction over state law claims of that nature when
similar federal claims also have been alleged, and, although the plaintiff’s
Equal Pay Act and state law discrimination claims contained different
legal elements, such differences do not affect the application of res
judicata when the legal claims arise from the same transaction.
2. The trial court correctly determined that the defendant was entitled to
judgment as a matter of law on the plaintiff’s hostile work environment
claim: the conduct at issue was not sufficiently severe or pervasive to
give rise to a hostile work environment claim, as the plaintiff admitted
that the incidents and conduct at issue were sporadic and not pervasive,
she was unable to describe with specificity when the events occurred,
and she never alleged, and the record did not suggest, that the conduct
at issue altered the conditions of her employment; moreover, nothing
in the record suggested that yelling, the only conduct clearly directed
at the plaintiff, ever had anything to do with her gender, and the plaintiff
stated that the yelling was always related to issues in the workplace;
furthermore, there was no evidence as to when the comments and
conduct directed at other female employees occurred or that the plaintiff
ever took steps to report it, and she specifically stated that she was
never the target of language or conduct of a sexual nature.
Argued April 14—officially released July 13, 2021
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, where the
court, Hon. A. Susan Peck, judge trial referee, granted
the defendant’s motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Zachary T. Gain, with whom, on the brief, was James
V. Sabatini, for the appellant (plaintiff).
Sara R. Simeonidis, with whom, on the brief, was
James F. Shea, for the appellee (defendant).
Opinion
DEVLIN, J. In this employment discrimination case,
the plaintiff, Gloria Fernandez,1 appeals from the sum-
mary judgment rendered in favor of her former
employer, the defendant, Mac Motors, Inc., as to both
counts of her complaint, in which she alleged that the
defendant had subjected her to discrimination and a
hostile work environment on the basis of her gender.
On appeal, the plaintiff claims that the trial court erred
in granting the defendant’s motion for summary judg-
ment in its entirety because (1) her gender discrimina-
tion claim was not barred by the doctrine of res judicata,
and (2) she submitted sufficient evidence to raise a
genuine issue of material fact as to her hostile work
environment claim. We affirm the judgment of the 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 is a corporation that does business as Hart-
ford Toyota Superstore and operates a car dealership
in Hartford. On August 1, 2014, the defendant hired the
plaintiff as a finance manager. The defendant employed
one other finance manager, Marc Clemons, who is male.
Among the responsibilities of finance managers was
the sale of ‘‘back end’’ financial products2 to customers
who purchased vehicles. When the plaintiff was hired,
finance managers received as compensation 14 percent
of the gross profits from their own sales of back end
products to customers.
During the time of the plaintiff’s employment with
the defendant, Asad ‘‘Tony’’ Mumtaz served as finance
director, and he was responsible for overseeing the
finance managers and working with financial institu-
tions to obtain financing for customers. James Webster
served as general manager, and he was responsible
for overseeing Mumtaz and managing the day-to-day
business of the defendant. Webster reported directly to
the defendant’s owner, Richard McAllister, whose son,
Richard McAllister, Jr. (McAllister), served as sales
manager.
In early 2016, the defendant revised the pay plan
for finance managers, such that they would receive as
compensation 4.6 percent of the gross profits of the
sales of back end products made by the entire sales
department. Approximately one month later, on Febru-
ary 12, 2016, the plaintiff tendered her resignation
because this constituted a ‘‘huge reduction in [her]
pay plan.’’
On July 15, 2016, the plaintiff, along with two other
female employees of the defendant, instituted an action
in the United States District Court for the District of
Connecticut (federal action), alleging that the defen-
dant had ‘‘fail[ed] to pay [the] plaintiffs the same as
male employees performing the same job, in violation
of the Equal Pay Act of 1963 [EPA], 29 U.S.C. § 206 et
seq.’’ On July 25, 2016, the plaintiff filed a complaint with
the Commission on Human Rights and Opportunities
(commission), ‘‘charg[ing] [the defendant] with gender
discrimination and [having created a] hostile work envi-
ronment . . . .’’ On April 21, 2017, the plaintiff received
a release of jurisdiction letter from the commission,
which authorized her to bring this action in the Superior
Court. On July 18, 2017, the plaintiff commenced the
present action, alleging that that she had been subjected
to discrimination and a hostile work environment on
the basis of her gender in violation of General Statutes
§ 46a-60 of the Connecticut Fair Employment Practices
Act, General Statutes § 46a-51 et seq. On April 30, 2018,
the District Court granted the defendant’s motion for
summary judgment and rendered judgment in favor of
the defendant.
On November 19, 2018, the defendant filed a motion
for summary judgment as to both counts of the plain-
tiff’s complaint on the grounds that her claim of gender
discrimination was barred by res judicata and that the
conduct she complained of did not create a hostile work
environment as a matter of law. On November 13, 2019,
the court rendered summary judgment in favor of the
defendant as to both counts. It is from this judgment
that the plaintiff appeals. Additional facts and proce-
dural history will be set forth as necessary.
‘‘We set forth our well established standard of review
on appeal following a trial court’s granting of a 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 at to any material
fact and that the moving party is entitled to judgment
as a matter of law. As an appellate tribunal, [w]e must
decide whether the trial court erred in determining that
there was 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 judg-
ment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The test
is whether a party would be entitled to a directed verdict
on the same facts. . . . A material fact is a fact which
will make a difference in the result of the case. . . .
[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.’’ (Internal quotation marks omit-
ted.) Mariano v. Hartland Building & Restoration Co.,
168 Conn. App. 768, 776–77, 148 A.3d 229 (2016).
I
The plaintiff first claims that the trial court erred in
concluding that her gender discrimination claim was
barred by res judicata. Specifically, the plaintiff claims
that res judicata does not apply because ‘‘there was a
jurisdictional bar preventing [her] from bringing [the]
claim before the federal court,’’ and because her ‘‘[EPA]
claims litigated in federal court are fundamentally dif-
ferent from her gender discrimination claim brought
under [§ 46a-51 et seq.].’’ We are not persuaded.
‘‘Res judicata, or claim preclusion, express[es] no
more than the fundamental principle that once a matter
has been fully and fairly litigated, and finally decided,
it comes to rest. . . . Res judicata bars the relitigation
of claims actually made in [a] prior action as well as
any claims that might have been made there. . . . Pub-
lic policy supports the principle that a party should not
be allowed to relitigate a matter which it already has had
an opportunity to litigate.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Wheeler v.
Beechcroft, LLC, 320 Conn. 146, 156–57, 129 A.3d 677(2016). It is well established that ‘‘a federal court has
jurisdiction over an entire action, including state-law
claims, whenever the federal-law claims and state-law
claims in the case derive from a common nucleus of
operative fact and are such that [a plaintiff] would ordi-
narily be expected to try them all in one judicial pro-
ceeding. . . . The [United States Supreme] Court
intended this standard not only to clarify, but also to
broaden, the scope of federal pendent jurisdiction. . . .
According to [the United States Supreme Court], con-
siderations of judicial economy, convenience and fair-
ness to litigants support a wide-ranging power in the
federal courts to decide state-law claims in cases that
also present federal questions.’’ (Citation omitted; inter-
nal quotation marks omitted.) Connecticut National
Bank v. Rytman, 241 Conn. 24, 47, 694 A.2d 1246 (1997).
Therefore, the first question before this court is whether
there was a jurisdictional bar to the plaintiff’s bringing
her gender discrimination claim in the federal action.
According to the plaintiff, she ‘‘was obligated to liti-
gate her EPA claim before her gender discrimination
claim due to the statute of limitations [because] [t]he
filing of the gender discrimination claim with the [com-
mission] [did] not extend/toll the two year statute of
limitations for filing an EPA lawsuit.’’ Although the
plaintiff is technically correct, there existed several
opportunities that were available to her that she could
have employed in order to bring her gender discrimina-
tion claim before the District Court. See generally V.
Hooper, note, ‘‘Avoiding the Trap of Res Judicata: A
Practitioner’s Guide to Litigating Multiple Employment
Discrimination Claims in the Third Circuit,’’ 45 Vill. L.
Rev. 743 (2000). Under one such option, the plaintiff
could have filed her EPA claim in federal court and
then sought a stay of that action until the conclusion
of her proceeding before the commission. This option
was viable because the United States Court of Appeals
for the Second Circuit is ‘‘of the firm opinion that a
[D]istrict [C]ourt faced with a stay request in this type
of situation . . . should grant the stay absent a compel-
ling reason to the contrary.’’ Woods v. Dunlop Tire
Corp., 972 F.2d 36, 41 (2d Cir. 1992), cert. denied, 506
U.S. 1053, 113 S. Ct. 977, 122 L. Ed. 2d 131 (1993). The
plaintiff also could have filed her EPA claim in federal
court and then amended that complaint to add her gen-
der discrimination claim after the commission issued
its release of jurisdiction letter. This option was also
viable because the federal action was not disposed of
until nine months after the plaintiff commenced the
present action. Finally, the plaintiff could have first
exhausted her administrative remedies before the com-
mission, and then filed both her EPA and gender dis-
crimination claims in federal court. Because these
options were clearly available, and the plaintiff simply
failed to take advantage of them, we conclude that she
was not jurisdictionally barred from bringing her gender
discrimination claim in the District Court.
Having reached this conclusion, we turn now to the
facts underlying the plaintiff’s claims to determine
whether the trial court correctly concluded that the
plaintiff’s gender discrimination claim was barred by
res judicata. ‘‘We have adopted a transactional test as
a guide to determining whether an action involves the
same claim as an earlier action so as to trigger operation
of the doctrine of res judicata. [T]he claim [that is]
extinguished [by the judgment in the first action]
includes all rights of the plaintiff to remedies against
the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of
which the action arose. What factual grouping consti-
tutes a transaction, and what groupings constitute a
series, are to be determined pragmatically, giving
weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether
they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expecta-
tions or business understanding or usage. . . . In
applying the transactional test, we compare the com-
plaint in the second action with the pleadings and the
judgment in the earlier action.’’ (Citations omitted;
internal quotation marks omitted.) Powell v. Infinity
Ins. Co., 282 Conn. 594, 604, 922 A.2d 1073 (2007).
The operative complaint in the present case and the
pleadings in the plaintiff’s federal action contain virtu-
ally identical allegations regarding (1) the status of the
plaintiff as a female citizen of Connecticut, (2) the
defendant’s status as a corporation operating a car deal-
ership, Hartford Toyota Superstore, in Hartford, (3) the
plaintiff’s employment with the defendant, which began
August 1, 2014, and (4) the plaintiff’s satisfactory job
performance. Moreover, both actions involve the same
parties—Webster, McAllister, Mumtaz, and Clemons—
and involve conduct that occurred during the same
eighteen month period of time. Furthermore, a central
allegation in each action is that the defendant did not
pay the plaintiff the equivalent of what it paid similarly
situated male employees due to her gender. After con-
sidering these factors, we conclude that the combined
facts of both actions constituted a single transaction
that would have formed a convenient trial unit for the
District Court and that their treatment as a unit would
not have been unexpected by the parties. Accordingly,
we conclude that the trial court properly found that no
genuine issue of material fact existed as to whether
the plaintiff had the opportunity to bring her gender
discrimination claim before the District Court.
Because the plaintiff had the opportunity to bring
her gender discrimination claim in the prior federal
action, we next ‘‘apply the test set forth in . . . [1]
Restatement (Second) of Judgments, § 25, comment (e)
[1982]. Under [the relevant part of] this test . . . [i]f
. . . the court in the first action . . . having jurisdic-
tion, would clearly have declined to exercise it as a
matter of discretion . . . then a second action in a
competent court presenting the omitted theory or
ground should [not be] precluded.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Connecticut
National Bank v. Rytman, supra, 241 Conn. 44. Accord-
ingly, for the plaintiff’s gender discrimination claim to
survive summary judgment on the ground of res judi-
cata, she must show that the District Court would
clearly have declined to exercise jurisdiction over it as
a matter of discretion. The plaintiff has failed to make
such a showing.
It is clear that federal courts routinely, and properly,
exercise supplemental jurisdiction over state law claims
of this nature when similar federal claims also have
been alleged. See Eng v. New York, 715 Fed. Appx. 49,
54 (2d Cir. 2017) (holding that District Court did not
abuse its discretion in exercising supplemental jurisdic-
tion over plaintiff’s state law discrimination claims
because they arose out of same common nucleus of
operative facts as her federal claims); Treglia v. Man-
lius, 313 F.3d 713, 723 (2d Cir. 2002) (holding that sup-
plemental jurisdiction over plaintiff’s state law discrimi-
nation claim was proper because it ‘‘[arose] out of
approximately the same set of events as his federal
retaliation claim’’); see also Considine v. Brookdale
Senior Living, Inc., 124 F. Supp. 3d 83 (D. Conn. 2015);
Schlafer v. Wackenhut Corp., 837 F. Supp. 2d 20, 24 (D.
Conn. 2011); Osborn v. Home Depot U.S.A., Inc., 518
F. Supp. 2d 377, 388–89 (D. Conn. 2007). Because the
plaintiff failed to present any evidence to even suggest
that the District Court would have declined to exercise
supplemental jurisdiction over her gender discrimina-
tion claim, we conclude that the trial court correctly
determined that res judicata applies to this claim.
Having reached this conclusion, we finally address
the plaintiff’s assertion that res judicata should not
apply because her EPA and state law discrimination
claims contain different legal elements. Although this
is true, such differences do not affect the application
of res judicata when, as here, the legal claims arise
from the same transaction. ‘‘[W]hatever legal theory is
advanced, when the factual predicate upon which
claims are based [is] substantially identical, the claims
are deemed to be duplicative for purposes of res judi-
cata.’’ Berlitz Schools of Languages of America, Inc.
v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980).
Accordingly, we conclude, with regard to the plaintiff’s
gender discrimination claim, that the defendant was
entitled to judgment as a matter of law under the doc-
trine of res judicata.3
II
The plaintiff’s second claim is that the court erred
in granting the defendant’s motion for summary judg-
ment as to her hostile work environment claim because
she submitted sufficient evidence to raise a genuine
issue of material fact as to such a claim. We disagree.
‘‘It is clear that . . . individuals reasonably should
expect to be subject to [the] vicissitudes of employ-
ment, such as workplace gossip, rivalry, personality
conflicts and the like. Thus, it is clear that individuals in
the workplace reasonably should expect to experience
some level of emotional distress, even significant emo-
tional distress, as a result of conduct in the workplace.
. . . That is simply an unavoidable part of being
employed. We recognize, however, that does not mean
that persons in the workplace should expect to be sub-
ject to conduct that transgress[es] the bounds of
socially tolerable behavior . . . .’’ (Citation omitted;
internal quotation marks omitted.) Perodeau v. Hart-
ford, 259 Conn. 729, 757, 792 A.2d 752 (2002). Accord-
ingly, ‘‘[t]o establish a hostile work environment claim,
a plaintiff must produce evidence sufficient to show
that the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environ-
ment . . . . [I]n order to be actionable . . . a sexually
objectionable environment must be objectively and sub-
jectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact
did perceive to be so. . . . Whether an environment is
objectively hostile is determined by looking at the
record as a whole and at all the circumstances, includ-
ing the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humili-
ating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work per-
formance.’’ (Internal quotation marks omitted.) Felici-
ano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453(2015).
In Feliciano, our Supreme Court noted that, in the
context of a hostile work environment claim, summary
judgment is appropriate when, ‘‘on the basis of all of
[the] evidence, a reasonable juror could find that the
defendant’s workplace [was] permeated with discrimi-
natory intimidation, ridicule, and insult that is suffi-
ciently severe or pervasive to alter the conditions of the
[plaintiff’s] employment and create an abusive working
environment . . . .’’ (Internal quotation marks omit-
ted.) Id., 89. Accordingly, in the present case, we must
review ‘‘all of the evidence . . . in the light most favor-
able to the nonmoving party . . . [to conclude
whether] the trial court improperly determined that the
plaintiff had not established a genuine issue of material
fact as to whether the defendant had subjected her to
a hostile work environment on the basis of her sex.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Id., 88–89.
The following additional facts, considered in the light
most favorable to the plaintiff, are relevant to our reso-
lution of this claim. The plaintiff claimed that, during
her employment with the defendant, she was mistreated
by four persons: Webster, McAllister, Mumtaz, and
Clemons. This mistreatment may be summarized as fol-
lows.
Webster would sometimes yell at the plaintiff during
managers’ meetings. The plaintiff described these inci-
dents as follows: ‘‘I have to physically show you,
because it wasn’t just yelling; it was verbally intimidat-
ing. . . . Webster stood like this, if I move a centimeter
I could touch his nose, got into my face, while yelling,
while spitting in my face . . . .’’ Webster’s conduct was
always related to issues in the workplace, but the plain-
tiff did not remember what exactly Webster said to her.
On one occasion, the plaintiff walked out of a managers’
meeting due to Webster’s yelling. Later that day, Web-
ster told the plaintiff that she did the right thing by
leaving and that he should not have spoken to her that
way. According to the plaintiff, this was Webster ‘‘trying
to apologize the best he could . . . .’’ Webster also
yelled at other employees, including Luis Plaza, whom
he accused of doing ‘‘a terrible job with the used cars
. . . .’’ The plaintiff believed that Webster did not like
anybody in the workplace but that he particularly dis-
liked her because she ‘‘would tell him to his face, no.’’
The plaintiff’s best characterization of how many inci-
dents of this nature occurred was that, ‘‘[i]t was a few,
more than once.’’ The plaintiff also stated that Webster’s
conduct during these meetings did not indicate to her
that he was unhappy with her work.
During her employment with the defendant, the plain-
tiff took a vacation. There was a discrepancy between
the number of vacation days that the plaintiff requested
and the return to work date that she provided on the
vacation request form. Webster expected the plaintiff
to return to work on the date listed on the form, whereas
the plaintiff believed that she did not have to return
until the following day. As a result of this confusion,
the plaintiff did not return to work on the date listed
on the form. Webster told the plaintiff several times
that she was ‘‘in big trouble . . . .’’ According to the
plaintiff, she was ‘‘grounded’’ by Webster: ‘‘I lost my
day off, I felt I was back in a totalitarian regime, I
lost my early night. I was forced to work the next few
Sundays as my punishment.’’ Webster also yelled at
Andrew Lombardi, another employee, about this issue,
and ordered him to text the plaintiff. The plaintiff did
not recall Webster saying anything further about this
issue.
Because of her managerial position with the defen-
dant, the plaintiff was given a dealer vehicle to drive.
There was an occasion when damage was discovered
on the vehicle, and Webster was convinced that the
plaintiff had caused the damage. The plaintiff denied
responsibility. This resulted in another yelling incident
in front of other employees: ‘‘Webster was convinced
that I had done it . . . and he was going to yell . . .
at me over [it], and it was horrific, same crap. . . . [I]n
his mind I had done it, and no matter what I said . . .
[h]e didn’t believe me. And then he said, next time I
damage the vehicle that I would pay for it.’’ The plaintiff
could not recall exactly what he said, ‘‘but it was to
the effect of, you damaged that car . . . [y]ou are going
to pay for it.’’ Ultimately, the plaintiff was not required
to pay for the damage.
While the plaintiff was employed by the defendant,
the dealership produced a Spanish language television
commercial that included several Spanish speaking
employees. The plaintiff, who speaks Spanish, was not
included. This embarrassed the plaintiff.
On one occasion, McAllister yelled at the plaintiff:
‘‘He came to my office . . . [which] was all glass [so]
everybody outside could see . . . . He got this close
to me and yell[ed] at me, while spitting in my face,
because it was that close.’’ This incident lasted for a
couple of minutes. The plaintiff could not recall why
McAllister yelled at her but believed that it was because
of a work related issue. McAllister did not use any
inappropriate language while yelling at the plaintiff.
There were no other incidents involving McAllister.
On one occasion, Mumtaz remarked to the plaintiff:
‘‘I’ll have to get up and choke you.’’ Mumtaz also used
the word ‘‘biatch,’’ a term he described as a ‘‘fancy way
of saying a bitch’’ to describe women in the workplace.
Additionally, Mumtaz constantly made comments in the
plaintiff’s presence to Lilia Browne, a female employee,
regarding Browne’s sex life.
Clemons was, according to the plaintiff, ‘‘very, very
nasty, very short, [and] very sarcastic.’’ Clemons would
direct sarcastic and offensive comments at the plaintiff,
and would not ‘‘answer [her] in the right way.’’ The
plaintiff, however, cannot recall the specifics of any
interactions she had with Clemons.
A number of incidents also occurred in the workplace
that did not directly involve the plaintiff. The plaintiff
described the first incident as follows: ‘‘Browne was in
my office, and [Webster] came and he physically started
pushing her out. He said, ‘get this cockroach out of
my office.’ ’’ The plaintiff described another incident as
follows: ‘‘There was a Christmas party. They were all
drinking and stuff. . . . [Webster] grabbed [Browne]
by the waist, that kind of stuff.’’ The plaintiff also
observed Webster making ‘‘innuendos about [Browne’s]
breasts . . . .’’ The plaintiff also described an incident
involving Webster and another female employee, Jill
Bruno: ‘‘[Webster] walked up to [Bruno] and grabbed
her butt cheeks . . . either coming into . . . or leav-
ing [a] managers’ meeting.’’ The plaintiff did not recall
when this incident occurred.
The plaintiff also recounted observations about the
conduct of male employees in the workplace generally.
According to the plaintiff, Webster made jokes in the
workplace that were demeaning to female employees,
made comments such as ‘‘woman driver[s],’’ and would
ask to ‘‘talk to the husband’’ when interacting with
women. Webster also, at times, used words such as
‘‘bitch,’’ ‘‘whore,’’ and ‘‘trashy’’ when discussing women
with other employees. Webster, however, never
directed any sexually explicit language at the plaintiff.
At no time did the plaintiff make a complaint of harass-
ment or bullying to the owner, Richard McAllister, or
to the defendant’s controller, Nancy Johnson.
After reviewing these facts, the court found: ‘‘[T]he
plaintiff . . . fails to show that she was subjected to a
hostile work environment based on gender. The plaintiff
claims that her work environment was hostile because
she was occasionally yelled at, other male employees
used stereotypes and crude language when discussing
females, and she witnessed another Hispanic female
called a ‘cockroach.’ While this conduct is perhaps
unprofessional and vulgar, it does not rise to the level
of creating a hostile work environment. The yelling
incidents that the plaintiff complains about were fairly
infrequent, as she could only recall a few instances
where she was yelled at during her employment with
the defendant. . . . The stereotypes and crude lan-
guage that the plaintiff witnessed others use also does
not appear to be severe and pervasive enough to create
a hostile work environment. . . . [T]he plaintiff failed
to submit any evidence concerning the frequency and
pervasiveness of such language, and could not specifi-
cally recall examples of any other colorful language
that her manager used. . . . This language, while taste-
less and crude, does not appear to have been pervasive
or severe enough to alter the conditions of the plaintiff’s
employment. . . .
‘‘The foregoing is unlike the scenarios encountered
in cases where the court has found the conduct com-
plained about to rise to the level of harassment required
to sustain a hostile work environment claim. . . .
Instead, the incidents that the plaintiff complains about
appear to have been isolated and sporadic, and they do
not constitute a hostile work environment as a matter
of law. . . . In light of the evidence before the court,
along with the plaintiff’s failure to submit any evidence
describing how the alleged conduct impacted her work
performance, the court cannot find that the plaintiff
was subjected to a hostile work environment. Accord-
ingly, the defendant is entitled to summary judgment
on the plaintiff’s hostile work environment claim.’’
(Citations omitted.)
We agree with the analysis of the court. In order for
the plaintiff’s hostile work environment claim to survive
summary judgment, she must establish the existence
of a genuine issue of material fact as to whether, on
the basis of her gender, the defendant subjected her
to a ‘‘workplace . . . permeated with discriminatory
intimidation, ridicule, and insult that [was] sufficiently
severe or pervasive to alter the conditions of [her]
employment and create an abusive working environ-
ment . . . .’’ (Internal quotation marks omitted.) Feli-
ciano v. Autozone, Inc., supra, 316 Conn. 85. The plain-
tiff has failed to do so in two ways: she has not shown
that the conduct at issue was sufficiently severe or
pervasive, nor has she shown that it was based on
her gender.
For purposes of summary judgment, the conduct at
issue is deemed to have occurred during the eighteen
month period when the plaintiff was employed by the
defendant. The plaintiff, however, has failed to describe
with any specificity the timing, duration, or frequency
of these incidents. This omission is critical because it
is well established that, for a hostile work environment
claim to succeed, the conduct at issue must not be
infrequent or isolated in time. This court has held that
‘‘two instances of inappropriate conduct within a one
year span do not meet the high standard of severe and
pervasive.’’ Heyward v. Judicial Dept., 178 Conn. App.
757, 765, 176 A.3d 1234 (2017). Additionally, in Felici-
ano, our Supreme Court discussed the facts of several
cases in which it properly was found that a plaintiff’s
hostile work environment claim was not actionable:
‘‘Quinn v. Green Tree Credit Corp., [159 F.3d 759, 768
(2d Cir. 1998)], involved only two isolated incidents. In
Bailey v. Synthes, [295 F. Supp. 2d 344, 358 (S.D.N.Y.
2003)], the supervisor’s actions were infrequent and
isolated, were not physically threatening and occurred
outside of the plaintiff’s daily work routine. In Lamar
v. NYNEX Service Co., [891 F. Supp. 184, 185 (S.D.N.Y.
1995)], the plaintiff did not object to her supervisor’s
behavior and that behavior was not directed specifically
at the plaintiff. In Babcock v. Frank, [783 F. Supp. 800,
808–809 (S.D.N.Y. 1992)], the incidents were isolated
and, in one instance, uncorroborated, and the employer
responded promptly to all of the plaintiff’s complaints.’’
Feliciano v. Autozone, Inc., supra, 316 Conn. 87–88.
The incidents and conduct discussed in the present
case were, by the plaintiff’s own admission, both spo-
radic and not pervasive; she was unable to describe
with any specificity when the events occurred, either
in time or in relation to one another. Additionally, the
plaintiff never alleged, and the record does not suggest,
that the conduct at issue ever altered the conditions of
her employment. To the contrary, the plaintiff stated
that the incidents involving Webster did not indicate to
her that he was unhappy with her work. Furthermore,
the conduct in the present case, as described by the
plaintiff, was not severe enough to give rise to a hostile
work environment claim. The only conduct that clearly
was directed at the plaintiff was yelling, and, although
yelling is surely conduct that workers consider unpleas-
ant—and that we do not condone—there is nothing in
the record to indicate that this yelling was ever ‘‘suffi-
ciently severe or pervasive to alter the conditions of the
[plaintiff’s] employment and create an abusive working
environment . . . .’’ (Internal quotation marks omit-
ted.) Id., 85. In fact, the plaintiff’s own recollection
supports the conclusion that this yelling was nothing
more than one of the ‘‘vicissitudes of employment . . .
[from which] individuals in the workplace reasonably
should expect to experience some level of emotional
distress . . . .’’ Perodeau v. Hartford, supra, 259 Conn.
757. Finally, there is nothing in the record to suggest that
this yelling ever had anything to do with the plaintiff’s
gender; the plaintiff herself stated that it ‘‘was always
related to issues in the workplace.’’
As for the comments and conduct directed at other
female employees, there is again no evidence as to when
these incidents occurred. There is also no evidence that
the plaintiff ever took steps to report them. It should
also be noted that, although these incidents were gender
related, the plaintiff specifically stated that she was
never the target of language or conduct of a sexual
nature. Because the plaintiff has failed to show the
existence of a genuine issue of material fact as to
whether she was subjected to a hostile work environ-
ment, we conclude that the trial court correctly deter-
mined that the defendant was entitled to judgment as
a matter of law on the plaintiff’s hostile work environ-
ment claim.4
The judgment is affirmed.
In this opinion the other judges concurred.
1
Gloria Fernandez died during the pendency of this appeal. We thereafter
granted the motion filed by her appellate counsel to substitute her daughter,
Christina Gonzalez, the executor of her estate, as the plaintiff.
2
‘‘Back end’’ financial products include warranties, environmental protec-
tion packages, and tire and wheel packages.
3
Having reached this conclusion, we find it unnecessary to consider the
defendant’s alternative ground for affirmance, which is that, even if the
plaintiff’s claim was not barred by res judicata, it failed on its merits because,
as a matter of law, she did not suffer an adverse employment action and
was not constructively discharged.
4
We decline to address the defendant’s alternative ground for affirmance,
which is that the plaintiff’s hostile work environment claim should be
rejected on the ground of res judicata. This argument was not made before
the trial court and was only briefly addressed in the defendant’s appel-
late brief.