Alvarez v. City of Middletown

192 Conn.App. 606

218 A.3d 124

Ulyses ALVAREZ

v.CITY OF MIDDLETOWN

AC 41478

Appellate Court of Connecticut.

Argued April 11, 2019

Officially released September 10, 2019

James V. Sabatini, Newington, for the appellant (plaintiff).

Cindy M. Cieslak, with whom were Sarah L. Wilber Hartford, and, on the brief, Michael J. Rose, for the appellee (defendant).

Lavine, Elgo and Pellegrino, Js.

ELGO, J.

In this employment discrimination action, the plaintiff, Ulyses Alvarez, appeals from the summary judgment rendered in favor of the defendant, the city of Middletown. The dispositive issue is whether the court properly determined that no genuine issue of material fact existed as to whether the defendant's nondiscriminatory justification for the plaintiff's discharge was merely a pretext for unlawful discrimination. We affirm the judgment of the trial court.

In its memorandum of decision, the court set forth the following undisputed facts, as gleaned from the pleadings, affidavits and other proof submitted. "The plaintiff is a Hispanic American citizen of Puerto Rican descent residing in Waterbury, and was employed as a probationary police officer by the defendant. In October of 2013, the plaintiff applied to the defendant for a position as a police officer and went through the hiring process, which included a background check and an interview with the chief of police. The plaintiff alleges that [when] Detective Thomas Ganley was performing [his] background check, [Ganley] remarked that the plaintiff was ‘too clean,’ in reference to the plaintiff being a Puerto Rican from Waterbury. Nevertheless, the plaintiff's background check cleared and Ganley recommended the plaintiff move forward in the hiring process.... [T]he plaintiff [subsequently] was interviewed by Police Chief William McKenna. During the interview, the plaintiff claims that McKenna asked him if the plaintiff had any ‘side bitches’ or ‘baby mama drama’ he should know about. Even so, shortly thereafter the plaintiff received a conditional offer of employment on November 13, 2013, provided he undergo training at the Police Officer Standards and Training Council (POST).

"The plaintiff began attending POST on January 6, 2014. While there, the plaintiff was the only Hispanic cadet out of six recruits, and he alleges that he was subjected to racial slurs and derogatory language by some of his fellow trainees.... [T]he plaintiff graduated from POST on June 14, 2014, and he subsequently entered into the [defendant's] field training program. His supervising officer during this period made note of several performance deficiencies, including a lack of situational awareness, organizational issues, difficulty writing reports and [responding to] various calls, and the plaintiff initially failed his firearms training. His schedule was adjusted in response. On November 12, 2014, the plaintiff was cleared to conduct patrol work on his own.

"On February 4, 2015, a female resident, Jane Doe, came into the police headquarters and reported that the plaintiff groped her and made her feel his genitals through his pants while he was responding to a reported domestic incident at her home. The plaintiff denied these allegations, but was placed on administrative leave on February 18, 2015, pending an internal affairs investigation. Detective Ganley was assigned to complete the investigation.

During the course of his investigation, Officer [Elliot] Arroyo, a colleague of the plaintiff, made a statement to Ganley that, on the day on which the incident between the plaintiff and Jane Doe was alleged to have taken place, the plaintiff had met Arroyo for lunch and bragged to him that he had received oral sex from one of the individuals involved in the call he was on. The plaintiff denied making this statement but does not dispute that Arroyo reported such to Ganley.

"While the investigation was ongoing, McKenna ordered a performance evaluation on the plaintiff, which showed he still demonstrated notable performance deficiencies, including a failure to file written reports. In light of these deficiencies on March 4, 2015, McKenna sent a letter to the plaintiff informing him that he would be facing probationary discharge on March 6, 2015. The plaintiff subsequently resigned on that same date."¹ (Footnote omitted.)

The plaintiff filed a timely complaint with the Connecticut Commission on Human Rights and Opportunities, which issued a release of jurisdiction on October 30, 2015. The plaintiff then commenced the present action in the Superior Court. His complaint contained two counts, which alleged discrimination on the basis of national origin and race, respectively, in contravention of the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq. In its answer, the defendant admitted that the plaintiff was employed as a probationary police officer but denied the material allegations of the complaint, including the plaintiff's allegations that he "performed [his] job at or above a satisfactory level" and that "[a]ny and all excuses offered ... to explain [his] termination would be a pretext to mask unlawful race [and] national origin discrimination" on the part of the defendant.

On August 18, 2017, the defendant filed a motion for summary judgment, which was accompanied by numerous exhibits. In response, the plaintiff filed an objection, to which he attached several exhibits. The court heard argument from the parties on January 8, 2018. In its subsequent memorandum of decision, the court articulated two distinct grounds for its decision to render summary judgment in favor of the defendant. First, the court concluded that no genuine issue of material fact existed as to whether the allegedly adverse employment action in question—the plaintiff's discharge—occurred under circumstances that give rise to an inference of discrimination. Second, the court concluded that no genuine issue of material fact existed as to whether the legitimate, nondiscriminatory justification articulated by the defendant for the plaintiff's discharge was merely a pretext for unlawful discrimination.

On appeal, the plaintiff challenges the propriety of both determinations. We agree with the trial court that the plaintiff has not demonstrated the existence of a genuine issue of material fact as to whether the defendant's nondiscriminatory justification for his discharge was a pretext for unlawful discrimination. We therefore do not consider the propriety of the alternative ground for summary judgment articulated by the court.²

As a preliminary matter, we note the well established standard that governs our review of the trial court's decision to grant 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 as to any material fact and that the moving party is entitled to judgment as a matter of law.

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... [T]he moving party ... has the burden of showing the absence of any genuine issue as to all the material facts .... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Lucenti v. Laviero , 327 Conn. 764, 772–73, 176 A.3d 1 (2018). "The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 294, 977 A.2d 189 (2009).

The present action involves an alleged violation of the act, which proscribes discriminatory employment practices on, inter alia, the basis of national origin and race. See General Statutes § 46a-60 (b). In his complaint, the plaintiff does not allege that he was discharged from his employment for both legitimate and illegitimate reasons. Rather, he claims that "[a]ny and all excuses offered by the defendant to explain the termination [are] a pretext to mask unlawful race [and] national origin discrimination ...." Accordingly, the analytical framework known as the "pretext/McDonnell Douglas-Burdine model"; Levy v. Commission on Human Rights & Opportunities , 236 Conn. 96, 105, 671 A.2d 349 (1996) ; applies in the present case. See Martinez v. Premier Maintenance, Inc. , 185 Conn. App. 425, 438, 197 A.3d 919 (2018).

As our Supreme Court has explained, under the pretext/McDonnell Douglas-Burdine model, "the employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d 518 (2002).

"Upon the defendant's articulation of ... a non-discriminatory reason for the employment action, the presumption of discrimination arising with the establishment of the prima facie case drops from the picture." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport , 304 Conn. 483, 515, 43 A.3d 69 (2012). "[T]o defeat summary judgment ... the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision...