Ralph Consiglio v. Montano Cigarette, Candy & Tobacco, Inc. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 121)

FACTS

This action arises from an alleged retaliatory discharge in violation of General Statutes § 31–290a.¹  On February 21, 2012, the plaintiff, Ralph Consiglio, served a summons and one-count complaint on the defendant, Montano Cigarette, Candy & Tobacco, Inc. After the court granted the defendant's motion to strike, the plaintiff filed a second revised complaint on July 3, 2012, which is the operative complaint.   In the complaint, the plaintiff alleges the following.

The defendant employed the plaintiff for approximately nine years.   On February 18, 2010, the plaintiff arrived for work and was crossing the employee parking lot when he slipped on accumulated ice, injuring his left leg.   The plaintiff attempted to report the injury to the defendant's agent, employee or servant Maria [Coreano],² who told the plaintiff that there were no accident report forms.   When the injury caused the plaintiff pain on February 22, 2010, he again approached Coreano and requested an accident report form.   Coreano asked the plaintiff why he had not reported the accident earlier and again told him that there were no forms.

On February 25, 2010, the defendant's owner and president, Gary Montano, confronted the plaintiff and shouted in front of other employees that the plaintiff was “a cancer on the company.”   Sometime that day, Montano learned from either Coreano or the plaintiff's supervisor, Jim Rielly,³ that the plaintiff had suffered an injury that might result in the filing of a workers' compensation claim.   Montano directed Rielly to send the plaintiff home until the plaintiff obtained a doctor's note clearing him to return to work.

From February 25 through March 2, 2010, the plaintiff left phone messages for Montano, seeking an explanation as to why he was not permitted to return to work.   On March 2, 2010, Montano left a voice mail for the plaintiff in which he terminated the plaintiff's employment with the defendant.   In the voice mail, Montano stated:  “There's a misunderstanding.   You don't need a note.   I had to act.   I'm sorry, but you talk bad about me and everything.   You're a cancer on the company and I have to cease it.”   The plaintiff alleges that the defendant wrongfully terminated him in retaliation for reporting his workplace injury, asking for accident report forms, and otherwise exercising his rights under the Workers' Compensation Act (act), in violation of § 31–290a.

On September 10, 2012, the court denied the defendant's motion to strike the second revised complaint, and on October 15, 2012, the defendant filed its answer and special defenses.⁴  On October 30, 2012, the plaintiff filed a reply denying each of the special defenses.   On July 11, 2013, the defendant moved for summary judgment on the ground that no evidence can prove that the core cause of the plaintiff's termination was retaliation against him for his exercise of rights under the act.⁵  In support of its motion, the defendant submitted a supporting memorandum of law and certified copies of the following:  (1) the plaintiff's responses to the defendant's requests for admissions;  (2) excerpts of the plaintiff's sworn deposition testimony;  (3) excerpts of Montano's sworn deposition testimony;  (4) a transcript of Montano's March 2, 2010 voicemail;  (5) excerpts of Coreano's sworn deposition testimony;  and (6) excerpts of Rielly's sworn deposition testimony.

On September 12, 2013, the plaintiff filed a memorandum in opposition to the defendant's motion and submitted certified copies of the following evidence:  (1) excerpts of the plaintiff's sworn deposition testimony;  (2) excerpts of Montano's sworn deposition testimony;  and (3) excerpts of Rielly's sworn deposition testimony.   On September 26, 2013, the defendant filed a reply memorandum.   The matter was heard at short calendar on October 7, 2013.

DISCUSSION

“[A] party in a civil case has a right to file a motion for summary judgment at any time with certain exceptions.”  (Emphasis in original.)  Holcomb v. Commissioner of Correction, 39 Conn.App. 485, 489, 664 A.2d 1199 (1995).⁶  “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.”  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “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.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

“[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated ․ The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.”  (Internal quotation marks omitted.)  Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn.App. 778, 793, 57 A.3d 794 (2012).   Thus, “even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.”  (Internal quotation marks omitted.)  Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 603, 999 A.2d 741 (2010).

The defendant argues in its supporting memorandum that the plaintiff cannot establish a prima facie case of discrimination in light of the United States Supreme Court's recent decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), which held that a plaintiff claiming retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,⁷ must establish that the defendant's retaliatory motive was the but-for cause of his termination.   The defendant asserts that neither the confrontation with Montano that led to the plaintiff's termination nor the defendant's stated reasons for terminating him were related to his request for an accident report form.   The defendant further asserts in its reply memorandum that the plaintiff cannot establish but-for causation because Montano knew nothing about the request for an accident report form at the time of the confrontation.   In his opposition memorandum, the plaintiff counters that the Connecticut Supreme Court has not yet applied Nassar to claims under § 31–290a, but even if Nassar applies in the present case, summary judgment is inappropriate because there is a material question of fact as to the defendant's motive for terminating him.

General Statutes § 31–290a provides in relevant part:  “No employer who is subject to [the act] shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to [the act].”  “In setting forth the burden of proof requirements in a § 31–290a action, we look to federal law for guidance.”   Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990), overruled in part on other grounds, 310 Conn. 375, 78 A.3d 76 (2013).  “In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination.   The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination ․ In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination ․ If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions ․ If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity ․ The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the [factfinder] ․ that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.”  (Internal quotation marks omitted.)  Mele v. Hartford, 270 Conn. 751, 768, 855 A.2d 196 (2004).

“[T]he burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis.”  (Emphasis omitted;  internal quotation marks omitted.)   Gordon v. Yale–New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 365472 (May 22, 1998, Levin, J.).  “[T]o establish [a] prima facie case of discrimination, the plaintiff must first present sufficient evidence ․ that is, evidence sufficient to permit a rational trier of fact to find [1] that she engaged in protected [activity] ․ [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action ․” (Internal quotation marks omitted.)  Callender v. Reflexite Corp., 143 Conn.App. 351, 364, 70 A.3d 1084, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).

The parties do not dispute that the plaintiff can establish the first three elements of a prima facie case of discrimination.   Thus, the crux of the defendant's argument is that the plaintiff cannot establish causation.   Preliminarily, the defendant argues that since Nassar held that a plaintiff claiming retaliation under federal law must establish but-for causation,⁸ a plaintiff claiming retaliation under § 31–290a can no longer establish a prima facie case if his employer would have terminated him anyway for another reason.   The defendant asserts that the federal statute and § 31–290a both use the word “because,” so the same standard of causation should apply to claims under both provisions.   The plaintiff counters that § 31–290a has been construed to allow “mixed motive” claims and that Connecticut has not yet adopted Nassar 's narrow definition of the word “because” and applied it to a claim under § 31–290a.   Thus, the plaintiff argues, a plaintiff can continue to establish causation under § 31–290a with evidence that a retaliatory motive played a part in the adverse employment action.   The defendant replies that the plaintiff has failed to distinguish Nassar and Connecticut Supreme Court precedent requiring Connecticut courts to apply federal employment law to claims under § 31–290a.

The Connecticut Supreme Court has rejected the argument that a trial court erred when it declined to apply new federal precedent to a claim under § 31–290a.   In Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 767, 717 A.2d 150 (1998), the trial court instructed the jury as to the burden-shifting framework as articulated in Ford. On appeal, the defendant argued that the jury instruction was improper because St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), had modified the burden-shifting framework set forth in McDonnell Douglas Corp. and followed by Ford. Sorrentino v. All Seasons Services, Inc., supra, 768.   Although noting that the defendant had not properly preserved this claim, the court rejected the defendant's argument because it incorrectly “[presumed] that, having once looked to a federal precedent to interpret our statute, we will thereafter adopt, in lockstep fashion, subsequent federal reinterpretation of federal law.   It is not plain error for a trial court to follow Connecticut law.”   Id.;  see also Langner v. Stop & Shop Supermarket Co., Superior Court, judicial district of New Haven, Docket No. CV–95–0377385–S (January 27, 2000, Licari, J.) (noting that Supreme Court had not yet adopted federal modification of burden-shifting framework and applying unmodified framework).⁹  Accordingly, in the present case, since our Supreme Court has not yet adopted Nassar 's narrow definition of the word “because” and applied it to a claim brought under § 31–290a, the court elects not to follow Nassar, and the plaintiff may therefore establish causation by presenting evidence “that a retaliatory motive played a part in the adverse employment action.”   Mele v. Hartford, supra, 270 Conn. 776.

Turning to this element of the plaintiff's prima facie case, “[a] causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant.”  (Internal quotation marks omitted.)  Hammond v. Bridgeport, 139 Conn.App. 687, 696, 58 A.3d 259 (2012), cert. denied, 308 Conn. 916, 62 A.3d 527 (2013).  “[T]he inquiry into whether temporal proximity establishes causation is factual in nature.   There is no bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between [protected activity] and an allegedly retaliatory action.”  (Internal quotation marks omitted.)  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 539, 976 A.2d 784 (2009);  see Simoes v. Olin Corp., Superior Court, judicial district of Waterbury, Docket No. CV–06–6000206–S (June 4, 2010, Cremins, J.) (50 Conn. L. Rptr. 26, 28) (finding material issue of fact with respect to causation where eight months elapsed between filing of workers' compensation claim and plaintiff's termination).

In the present case, the plaintiff argues that he was summarily ordered to go home when Montano learned that he had asked for accident report forms and that he was terminated for leaving in obedience to this order.   The plaintiff submits the following evidence.   Shortly after his slip occurred on February 18, 2010, the plaintiff told Rielly he would like to fill out an accident report, and Rielly directed him to Coreano.   Plaintiff's Dep., 36–37.   The plaintiff requested an accident report form from Coreano on February 18 and again on February 22.  Id., 37, 45.   Both times Coreano responded that there was no such form.¹⁰  Id. From February 18 through February 25, the plaintiff worked his normal hours.  Id., 42–44.   Around February 25, Montano learned from either Rielly or Coreano that the plaintiff had been injured and instructed Rielly to tell the plaintiff to punch out and go home until he obtained a doctor's note.   Montano Dep., 14.

Shortly before lunchtime on February 25, Montano confronted the plaintiff and shouted “you complain about everybody, you talk about everybody, you're a cancer to the company.   I have to cease it.”   Plaintiff's Dep., 51.   Montano could not recall whether he instructed Rielly to send the plaintiff home before or after he confronted the plaintiff.¹¹  Montano told the plaintiff to punch out and go home if he no longer liked it there, then left the building.   Id.

The plaintiff took a lunch break after the confrontation with Montano and then returned to work, where Rielly was waiting for him.  Id., 53.   Rielly instructed him to go home as directed by Montano.  Id.;  Rielly Dep., 14, 16.   During their conversation, Rielly offered the plaintiff workers' compensation paperwork, which the plaintiff declined.   Plaintiff's Dep., 53.   The plaintiff requested a week's vacation because he would be unable to obtain a doctor's note before March 5, when he was scheduled to see his neurologist.   Id., 55.   Rielly approved the request.  Id. On February 28, before he could see his neurologist, the plaintiff learned that his health insurance had been cancelled.  Id., 54.

On March 2, Montano left the plaintiff the following voice mail:  “Good morning Ralph.   It's 11:27, Tuesday morning, Gary Montano.   I guess there's some misunderstanding.   I don't need a note to come back to work.   I told you if you were unhappy leave.   You left.   We're making adjustments.   I'm just sorry Ralph that you had to act I mean, in such a manner.   And I'm tired of people coming to me complaining that you're constantly, constantly you know, talking bad—talking bad about me, you're talking bad about everybody and everything.   You're a wonderful person;  you're a trusted employee, but you know, you just don't act it and the cancer, I have to cease it.   Bye.” Tr. of March 2, 2010 voice mail;  Montano Dep., 28.

Even assuming that the February 25 confrontation took place before Montano learned of the plaintiff's request for an accident report form, there is a factual dispute as to whether the plaintiff was terminated for complying with his employer's order to go home until he obtained a doctor's note.   After learning that the plaintiff had requested a form, Montano directed Rielly to send the plaintiff home until he obtained a doctor's clearance to return to work.   Rielly issued the order, and the plaintiff complied.   Thereafter, the plaintiff left messages for Montano, seeking clarification regarding whether he could return to work.   Failing to reach Montano, the plaintiff remained at home.   Then, on March 2, Montano terminated the plaintiff on the stated ground that he had walked off the job pursuant to their confrontation, even though the plaintiff left under Rielly's order.   With respect to temporal proximity, the termination took place less than a week after Montano learned of the plaintiff's request for a form.   Moreover, the plaintiff's insurance was cancelled in the meantime.   In light of the plaintiff's de minimis burden at this stage of the proceedings, the court concludes that he has established a causal connection between his request for an accident report form and his termination.   Accordingly, the court further concludes that the plaintiff has established a prima facie case of discrimination.

Once the plaintiff makes out his prima facie case, “the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions ․” (Internal quotation marks omitted.)  Mele v. Hartford, supra, 270 Conn. 768.   In the present case, the defendant has submitted the following evidence.   The plaintiff was a loud complainer who publicly vented his frustration with the defendant's front office employees when they committed errors in taking orders from customers.   Montano Dep., 10–11.   Over time, the plaintiff began having “rages,” and at one point Montano observed the plaintiff with “his mouth going and his hands moving in front of customers.”  Id., 19.   After observing the plaintiff disrupting other employees' work with his complaining, Montano encouraged the plaintiff to calm down and focus on his own tasks.  Id. Montano pulled the plaintiff aside two or three more times for similar discussions that he did not document.  Id., 10.   The most recent of these took place a few weeks or a few months prior to the February 25 confrontation.  Id., 11.   With respect to the confrontation, Montano stated that “I told him he's bringing down the moral[e] of the other people, so stop it or leave.   So that, in my opinion, however the accident fell in was secondary.”  Id., 29.   The plaintiff admits that the subject of the confrontation was his negative remarks about other employees.   Plaintiff's Response to Defendant's Request for Admissions 5:17.   Thus, with the submission of the foregoing evidence, the defendant has produced a legitimate, nondiscriminatory reason for terminating the plaintiff.

“If the defendant successfully rebuts the presumption [of discrimination], the plaintiff then must produce evidence that could persuade a rational factfinder that the defendant's proffered explanation is unworthy of credence or is pretextual.”  Callender v. Reflexite Corp., supra, 143 Conn.App. 364.  “If the jury disbelieves the nondiscriminatory reason proffered by the employer, the burden is then on the plaintiff to prove by a preponderance of the evidence that the real reason for the disparate treatment was discrimination ․ When the employer has rebutted the presumption of discrimination arising from the plaintiff's prima facie case by providing reasons for the disparate treatment, [t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to [satisfy the plaintiff's ultimate burden of proving] intentional discrimination ․ Certainly [however] there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory.   For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)   Id., 376 n.8.

In the present case, the plaintiff argues that the defendant's stated reasons for terminating him are pretextual because Montano agreed with and ratified the plaintiff's complaints about other employees.   The plaintiff also argues that spite and retaliation were the real reasons for his termination.   He asserts that Montano was angry with him for reporting an accident and sent him home to get a doctor's note out of spite.   He argues that Montano's March 2 voice mail was an attempt to portray the plaintiff as having walked off the job even though he was actually sent home.   The plaintiff presents the following evidence.

Montano and Rielly stated that they considered the plaintiff hardworking and trustworthy.   Montano Dep., 35–36;  Rielly Dep., 30.   Montano conceded that the plaintiff's frustrations with other employees were based in truth:  customers called daily and reported receiving the wrong items due to office staff errors.   Montano Dep., 19–20, 36;  Plaintiff's Dep., 28.   Montano, who was angry himself with the office staff for such errors, instructed the plaintiff to show them their mistakes.   Plaintiff's Dep., 28.   Employees under Rielly's supervision regularly complained about similar errors.   Rielly Dep., 24.   Thus, when Montano began shouting at the plaintiff on February 25 that “you complain about everybody, you talk about everybody,” the plaintiff was confused by being singled out.   Plaintiff's Dep., 52.   When the plaintiff asked Montano who had given him this information, Montano responded:  “I don't have to tell you anything.   I own the company.”  Id.

When he learned of the plaintiff's accident, Montano did not investigate but simply ordered Rielly to send the plaintiff home:  “I don't know if he complained that his leg was his injury or his back or whatever.   I know it was a slip and an injury, and that requires an examination.”   Montano Dep., 22.   The parties dispute whether the plaintiff placed phone calls to Montano between February 25 and March 2 in attempts to ascertain whether he could return to work or had been terminated;  the plaintiff failed to reach Montano.   Plaintiff's Dep., 55;  Montano Dep., 29.   On March 2, Montano stated in the voicemail he left for the plaintiff:  “I guess there's some misunderstanding.   I don't need a note to come back to work.   I told you if you were unhappy leave.   You left.   We're making adjustments.”   Tr. of March 2, 2010 voice mail.   With regard to the misunderstanding to which he referred, Montano stated that he told the plaintiff “to either change or not to come back to work.   I guess he took the latter, don't come back to work.   So if he's not coming back to work, he doesn't need a doctor's note.”   Montano Dep., 28–29.

The foregoing evidence establishes that a factual dispute exists with regard to whether the defendant terminated the plaintiff as a result of his February 25 confrontation with Montano or because he complied with an order to go home that stemmed from his request for an accident report form.  “[A]lthough courts must be careful not to second-guess an employer's business judgment that it makes in good faith, a plaintiff must be allowed to show that her employer's asserted reasons for discharging her were a pretext and that the real reason was her [protected class or activity] ․ In addition, in employment discrimination cases, [a] trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue ․ Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.  (Citations omitted;  internal quotation marks omitted.)  Langner v. Stop & Shop Supermarket Co., supra, Superior Court, Docket No. CV–95–0377385–S.   In the present case, the plaintiff has presented sufficient circumstantial proof to demonstrate that notwithstanding the defendant's stated reason for terminating him, an issue of fact exists as to whether retaliation for engaging in protected activity actually motivated the termination.   Accordingly, the motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. General Statutes § 31–290a provides in relevant part:  “(a) No employer who is subject to the [Workers' Compensation Act (act) ] shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to [the act]. (b) Any employee who is so discharged or discriminated against may ․ (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office ․”.  FN1. General Statutes § 31–290a provides in relevant part:  “(a) No employer who is subject to the [Workers' Compensation Act (act) ] shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to [the act]. (b) Any employee who is so discharged or discriminated against may ․ (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office ․”

FN2. Although the complaint refers to this individual by her first name only, the motion for summary judgment and opposing memorandum both identify her as Maria Coreano, the defendant's accounts payable manager.   This memorandum will refer to her by her last name for clarity and consistency..  FN2. Although the complaint refers to this individual by her first name only, the motion for summary judgment and opposing memorandum both identify her as Maria Coreano, the defendant's accounts payable manager.   This memorandum will refer to her by her last name for clarity and consistency.

FN3. The pleadings and supporting documents employ various spellings of this last name, including Riley (in the complaint), Rielly (in that individual's deposition transcript and in the plaintiff's memorandum in opposition), and Reilly (in the defendant's supporting memorandum).   For purposes of consistency, this memorandum will use the Rielly spelling..  FN3. The pleadings and supporting documents employ various spellings of this last name, including Riley (in the complaint), Rielly (in that individual's deposition transcript and in the plaintiff's memorandum in opposition), and Reilly (in the defendant's supporting memorandum).   For purposes of consistency, this memorandum will use the Rielly spelling.

FN4. The defendant asserted the following special defenses:  (1) the plaintiff failed to exhaust administrative remedies;  (2) the plaintiff failed to mitigate damages;  and (3) the plaintiff's claims are barred by judicial estoppel..  FN4. The defendant asserted the following special defenses:  (1) the plaintiff failed to exhaust administrative remedies;  (2) the plaintiff failed to mitigate damages;  and (3) the plaintiff's claims are barred by judicial estoppel.

FN5. On May 31, 2013, the court assigned this case a jury trial date of March 17, 2014.   On June 3, 2013, the court approved a scheduling order providing that dispositive motions would be filed by July 15, 2013..  FN5. On May 31, 2013, the court assigned this case a jury trial date of March 17, 2014.   On June 3, 2013, the court approved a scheduling order providing that dispositive motions would be filed by July 15, 2013.

FN6. Practice Book § 17–44, effective January 1, 2014, provides in relevant part:  “any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial.   If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order.”.  FN6. Practice Book § 17–44, effective January 1, 2014, provides in relevant part:  “any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial.   If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order.”

FN7. Section 2000e–3(a) of title 42 of the United States Code provides in relevant part:  “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ․ because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”.  FN7. Section 2000e–3(a) of title 42 of the United States Code provides in relevant part:  “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ․ because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

FN8. Under Nassar, a plaintiff can no longer prevail on a claim under 42 U.S.C. § 2000e–3 by demonstrating that retaliation was a “motivating factor” in an adverse employment action, as is permitted by 42 U.S.C. § 2000e–2, the federal discrimination statute.  Section 2000e–2 of title 42 of the United States code provides in relevant part:  “(m) Except as otherwise provided in this subchapter, 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.”.  FN8. Under Nassar, a plaintiff can no longer prevail on a claim under 42 U.S.C. § 2000e–3 by demonstrating that retaliation was a “motivating factor” in an adverse employment action, as is permitted by 42 U.S.C. § 2000e–2, the federal discrimination statute.  Section 2000e–2 of title 42 of the United States code provides in relevant part:  “(m) Except as otherwise provided in this subchapter, 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.”

FN9. Connecticut has since adopted the modified framework articulated in St. Mary's Honor Center.   See Callender v. Reflexite Corp., supra, 143 Conn.App. 375 n.8..  FN9. Connecticut has since adopted the modified framework articulated in St. Mary's Honor Center.   See Callender v. Reflexite Corp., supra, 143 Conn.App. 375 n.8.

FN10. According to Coreano's deposition testimony submitted by the defendant, the plaintiff requested an accident report form only once, a week after the accident occurred.   Coreano Dep., 14–16..  FN10. According to Coreano's deposition testimony submitted by the defendant, the plaintiff requested an accident report form only once, a week after the accident occurred.   Coreano Dep., 14–16.

FN11. At oral argument, the defendant asserted that the facts are unclear as to whether Montano knew about the plaintiff's request for accident report forms before confronting him on February 25 and whether Rielly told the plaintiff to leave before Montano confronted him.   The defendant cited pages 24 and 25 of Montano's deposition in support of this assertion.   The plaintiff also cites page 24 of Montano's deposition in his memorandum when he states that “while off site [after the February 25 confrontation, Montano] learned that the plaintiff had requested accident report forms to document his slip in the parking lot.”   Neither party has submitted copies of pages 24 and 25 of Montano's deposition transcript..  FN11. At oral argument, the defendant asserted that the facts are unclear as to whether Montano knew about the plaintiff's request for accident report forms before confronting him on February 25 and whether Rielly told the plaintiff to leave before Montano confronted him.   The defendant cited pages 24 and 25 of Montano's deposition in support of this assertion.   The plaintiff also cites page 24 of Montano's deposition in his memorandum when he states that “while off site [after the February 25 confrontation, Montano] learned that the plaintiff had requested accident report forms to document his slip in the parking lot.”   Neither party has submitted copies of pages 24 and 25 of Montano's deposition transcript.

Wilson, Robin L., J.