In Cooley v. Chrysalis Center, Inc., 2024 WL 4678323 (Conn.Super. Oct. 31, 2024), the court, inter alia, denied defendant’s motion for summary judgment as to plaintiff’s race-based termination claim.
From the decision:
The defendant does not seriously dispute that Cooley has satisfied the first three elements of his prima facie case. Therefore, only the fourth element is at issue. Although certainly not all of Cooley’s complaints could potentially give rise to an inference of discrimination, some of them do meet this standard. For instance, in her deposition, Gough admits that Cooley made a complaint of racial discrimination that was never investigated by the defendant. (Def’s Exh. I, p. 47-48.)
“[A]n employer’s response to an allegation of discrimination itself constitutes evidence of discrimination or liability for discrimination. When employees complain of Title VII violations, for example, employers can be held liable … if [they do] not fulfill [their] duty to take reasonable steps to remedy the [violation].” (Emphasis in original; internal quotation marks omitted.) Sassaman v. Gamache, 566 F.3d 307, 314 (2d Cir. 2009).8 Moreover, Gough also admits that she sent an e-mail discussing Cooley’s personal health information to multiple different staff members. (Def’s Exh. I, p. 36-37.) Although Gough contends that she sent this e-mail by mistake, it is not the court’s role on a motion for summary judgment to resolve such factual disputes. If, for instance, the fact finder concludes that Cooley was treated differently than individuals who were not the same race as him on account of Gough sending this e-mail, a reasonable trier of fact could conclude that he was discriminated against on the basis of his race. Therefore, Cooley has set forth his prima facie case.“If the plaintiff succeeds in establishing a prima facie case, it creates a rebuttable presumption that the employer intentionally discriminated against the employee…. Thereafter, the burden shifts to the defendant to rebut the presumption raised by articulating a legitimate, nondiscriminatory reason for the adverse employment action.” (Citations omitted.) Rossova v. Charter Communications, LLC, 211 Conn. App. 676, 686, 273 A.3d 697 (2022). In the present case, the defendant asserts that its legitimate nondiscriminatory reason for terminating the plaintiff was his failure to report to work in accordance with its attendance policy. Certainly, an employee’s failure to report to work is a legitimate reason to fire him. See, e.g., Barbabosa v. Board of Education, 189 Conn. App. 427, 438, 207 A.3d 122 (2019) (stating that the Appellate Court and “numerous federal courts have recognized that attendance at work is a necessary job function.”). Therefore, the defendant employer has stated a legitimate, nondiscriminatory basis for its actions.
*6 “Once the defendant has articulated a legitimate reason for the plaintiff’s discharge, the plaintiff’s burden is to present evidence [that] must—at a minimum—create a genuine issue of fact as to [the defendant’s] offered reasons or as to a discriminatory motive.” (Internal quotation marks omitted.) Rivera-Berrios v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 19-6089403-S (June 18, 2022, Abrams, J.). “Evidence establishing the falsity of the legitimate, nondiscriminatory reasons advanced by the employer may be, in and of itself, enough to support the trier of fact’s ultimate finding of intentional discrimination…. Of course, to defeat summary judgment … 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.” (Citations omitted; internal quotation marks omitted.) Gibilisco v. Tilcon Connecticut, Inc., 203 Conn. App. 845, 865-66, 251 A.3d 994, cert. denied, 336 Conn. 947, 251 A.3d 77 (2021).
In his affidavit offered in opposition to the summary judgment motion (docket entry #130), Cooley attests that on July 31, 2020, he filed a CHRO complaint alleging that the defendant was discriminating against him because of his race/color. Thereafter, on October 5, 2020, he attempted to return to work but was placed on administrative leave pending an investigation. The plaintiff was then fired in mid-October 2020, via a letter he received in the mail on or about October 17, 2020. During the time period in between his attempt to return to work and his termination, union representatives were trying to negotiate with the defendant regarding his return-to-work terms. Based on this sequence of events, it would be reasonable for the fact finder to conclude that Cooley was fired as a consequence of his decision to file a race discrimination based CHRO complaint, and not, as the defendant suggests, because he failed to report to work. “In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact … but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Episcopal Church in Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (2011), cert. denied, 567 U.S. 924, 132 S. Ct. 2773, 183 L. Ed. 2d 653 (2012). “[I]ssue-finding, rather than issue-determination, is the key to the procedure.” (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn. App. 216, 222, 131 A.3d 771 (2016).
Based on this, the court concluded that “[a]s there are genuine issues of material fact as to whether the defendant’s decision to terminate the plaintiff was pretextual, the motion for summary judgment is denied as to Cooley’s race discrimination claim found in count one.”