Francine Smith v. State of Connecticut, Judicial Branch (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 130)

FACTS

The plaintiff, Francine Smith, filed a three-count revised complaint on May 9, 2011, against the defendant, State of Connecticut, Judicial Branch.   In the revised complaint, the plaintiff alleges the following facts.   The plaintiff is an African–American.   In May 1999, she began working for the defendant and was employed as an intake assistant.   On June 25, 2004, she was transferred to the Family Services Unit of the Milford Superior Court in Milford, Connecticut.   On November 1, 2007, the plaintiff complained to the Human Resources Manager, Joseph Riley, that she had been the victim of sexual harassment by a co-worker.   The co-worker, a Caucasian female, had forwarded her a sexually explicit email on the agency's computer system.   Despite the plaintiff's complaints, no action was taken against the co-worker.

The plaintiff's immediate supervisor responded to the complaint of sexual harassment by placing negative comments in the plaintiff's performance evaluation.   As a resolution to the plaintiff's complaints, Riley arranged to have the Regional Director, Steven Grant, look into a transfer for her.   Grant informed the plaintiff that she would be transferred to New Haven, a location that the plaintiff was in agreement with.   Two days before the transfer, however, the plaintiff was informed that she would be instead transferred to Meriden, Connecticut, a location that would require the plaintiff to drive an additional forty miles per day.   On February 15, 2008, the plaintiff began working at the Meriden location and maintained the title of an intake assistant in the Intake Assessment and Referral Unit (Adult Probation).   Two weeks after the transfer, three intake assistant positions became vacant, two of which were at the New Haven location where the plaintiff desired to transfer.   The plaintiff was not offered either of those vacancies nor was she offered the opportunity to interview for those vacancies, despite being qualified.

At the Meriden location, the plaintiff was placed under the immediate supervision of Nancy McCormack.   The plaintiff alleges that from the beginning of her assignment at the Meriden location, the plaintiff was treated differently than other similarly situated employees.   McCormack refused to provide the plaintiff with job duties or assignments.   Instead, other intake assistants were permitted to give the plaintiff work that they did not wish to perform, such as record checks and copying of police records.   Unlike the plaintiff, all other similarly situated employees had job duties and assignments consistent with their positions.   All other similarly situated employees were Caucasian while the plaintiff was the only African–American employee in the office.

In addition to differential treatment in work assignments, the plaintiff was refused the same leave time from work as other employees in the Meriden office, required to transport mail while this assignment was not rotated to similarly situated Caucasian employees, given duties that were physically impossible to maintain, was not provided backup when she was out on leave while requiring the plaintiff to provide backup for similarly situated Caucasian employees when they were on leave.   The plaintiff alleges that defendant has caused the creation of a hostile work environment between the plaintiff and all other employees in the office.

Due to the defendant's actions, the plaintiff alleges she has been denied the opportunity to be seriously considered for lateral and promotional job opportunities.   The plaintiff has applied for at least thirty-five positions since transferring to the Meriden location.   She has been permitted the opportunity to interview for only two of these positions, despite being deemed qualified by the defendant for all except three of the positions applied to.

On March 11, 2009, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities (CHRO).   On February 23, 2011, the plaintiff received a release of jurisdiction from the CHRO. In January 2010, the plaintiff transferred to the New Haven Juvenile Court as an intake assistant.   Prior to this transfer, she was informed that if she assumed the intake assistant position at the New Haven Juvenile Court, she would be in line to be trained as a juvenile probation officer trainee.   The plaintiff has not been given any job duties or assignments since she transferred to New Haven.   Moreover, the plaintiff has not been given any performance appraisals since the time of her sexual harassment complaints and the filing of her complaint with the CHRO, contrary to the defendant's personnel policies.   The plaintiff has not received a performance appraisal in almost four years.

On May 9, 2011, the plaintiff filed a revised complaint, which is the operative complaint, alleging three counts ¹ pursuant to the Connecticut Fair Employment Practices Act (CFEPA).   The plaintiff alleges race and color discrimination in violation of General Statutes § 46a–609(a)(1) (count one), retaliation in violation of General Statutes § 46a–60(a)(4) (count two), and hostile work environment in violation of General Statutes § 46a–60(a)(1) (count three).

On September 30, 2013, the defendant filed a motion for summary judgment.   The motion is accompanied by a memorandum of law and the following exhibits:  (1) deposition excerpts of the plaintiff;  (2) the plaintiff's employee performance appraisal;  (3) the affidavit of Riley;  (4) the affidavit of McCormack;  (5) the affidavit of Robert Coffey, Director in the Human Resource Management Unit for the defendant;  (6) Riley's notes regarding his meeting with the plaintiff;  and (7) the job description for an intake assistant.

On October 15, 2013, the plaintiff filed an opposition to the defendant's motion for summary judgment and attached the following exhibits:  (1) a copy of the complaint filed with the CHRO;  (2) a copy of the addendum to the CHRO complaint;  (3) certain responses from the plaintiff to the defendant's interrogatories;  (4) the plaintiff's amended responses to the defendant's interrogatories;  and (5) deposition excerpts of the plaintiff.

On October 29, 2013, the defendant filed a reply to the plaintiff's opposition.   This matter was heard at short calendar on December 2, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).  “A material fact is a fact that will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 295, 44 A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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 opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Emphasis omitted;  internal quotation marks omitted.)  Deutsche Bank National Trust Co. v. Shivers, supra, 136 Conn.App. 296.

“[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).  “[E]ven 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 that the plaintiff cannot establish a prima facie case of discrimination based on her race/color or retaliation and that the plaintiff's hostile work environment claim fails as a matter of law.   The plaintiff counters that she has met her burden of establishing a prima facie case of discrimination and hostile work environment.   The defendant replies that the only documentation the plaintiff provides in her opposition is her own deposition testimony and that the plaintiff has failed to create a genuine issue of material fact.

I

Race and Color Discrimination

General Statutes § 46a–60(a)(1) provides in relevant part that:  “It shall be a discriminatory practice in violation of this section:  (1) For an employer, by the employer or the employer's agent ․ to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color ․” “A plaintiff may raise such an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group.”  (Internal quotation marks omitted.)  Walker v. Dept. of Children and Families, 146 Conn.App. 863, 875 n.8, 80 A.3d 94 (2013).

“[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.).  “The framework [the Appellate] court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny ․ [The Appellate Court looks] to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both ․ Under this analysis, the employee must first make a prima facie case of discrimination ․ In order for the employee to first make a prima facie case of discrimination, the plaintiff must show:  (1) the plaintiff is a member of a protected class;  (2) the plaintiff was qualified for the position;  (3) the plaintiff suffered an adverse employment action;  and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination ․ The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question ․ This burden is one of production, not persuasion;  it can involve no credibility assessment ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Feliciano v. Autozone, Inc., 142 Conn.App. 756, 769–70, 66 A.3d 911, cert. granted on other grounds, 310 Conn. 908, 76 A.3d 625 (2013).

Viewing the evidence in the light most favorable to the plaintiff, there is no genuine issues of material fact as to her satisfaction of the first two prongs for a prima facie case on race discrimination.   The plaintiff identifies herself as an African–American.   As an African–American, the plaintiff falls within a protected class in satisfaction of the first prong.   Neither party disputes that the plaintiff was qualified for her position as an intake assistant, such that prong two is not an issue.

Accordingly, the issue is whether there is a genuine issue of material fact as to the third and fourth prong required for a prima facie case of discrimination.   Specifically, the issue is whether the plaintiff suffered adverse employment action and, if so, whether said action occurred under circumstances giving rise to an inference of discrimination.

“An ‘adverse employment action’ is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities ․ Examples of materially adverse employment actions include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ․ unique to a particular situation.”   (Citations omitted;  internal quotation marks omitted.)  Feingold v. New York, 366 F.3d 138, 152 (2nd Cir.2004).  “A lateral transfer does not generally constitute an adverse employment action for Title VII purposes.   To be ‘materially adverse,’ the action must result[ ] in a change in responsibilities so significant as to constitute a setback to the plaintiff's career ․ [S]ubjective dissatisfaction with assignments does not constitute adverse employment action.”  (Citation omitted;  internal quotation marks omitted.)   Simmons–Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 915 F.Sup.2d 498, 504 (S.D.N.Y.2013).

A

Employment Positions

The plaintiff alleges that she had applied for at least thirty-five positions since transferring to the Meriden location.   She has been permitted the opportunity to interview for only two of these positions, despite being deemed qualified by the defendant for all except three of the positions applied to.   The plaintiff, however, concedes that an employee is not guaranteed a position just because an application is submitted.   Pl's Ex. C, 5. Additionally, McCormack and Riley had no part in the selection process of interviews for the positions the plaintiff applied for.   Def's Ex. 3, 2;  Def's Ex. 2, 3. The plaintiff's failure to obtain interviews and offers for the positions she applied for is not an adverse employment action.

B

Disparate Treatment

The plaintiff contends that she has suffered adverse employment action in that she suffered disparate treatment while at the Meriden location.   Specifically, “[u]pon the plaintiff's arrival to the Meriden court [in 2008] the staff was scheduled to move to a satellite office located about two miles from the courthouse.   The plaintiff had no duties and was asked to transport heavy files and other paperwork between the satellite office and the courthouse.   The plaintiff was also asked to go to the courthouse and make copies of police reports for the other Intake Assistants and constantly provide coverages, run record checks and perform other parts of [other intake assistants'] assigned duties which they lacked interest in doing.”   Pl's Ex C, 5. It “got to the point where they were assigning [the plaintiff] work that they felt they didn't have time to complete ․ they started assigning [the plaintiff] their work.”   Pl's Ex. E, 89.   The plaintiff concedes, however, that she was performing duties consistent with her job description as an intake assistant.   See Pl's Ex. C, 8. McCormack testified that she “never refused to give [the plaintiff] her own work assignments.   All Intake Assistants are subject to the same work and share their duties when there is an operation need ․” and “[a]ll of the Intake Assistants are given rotating mail duties and all comply with this task.”   Def's Ex. 3, 1–2.

Additionally, the plaintiff claims she has not been given any job duties or assignments since being transferred to the New Haven location, despite retaining the title of intake assistant.   Nevertheless, she testified that the she was informed that she was going to be made a probation officer of the day (POD) in the New Haven location before transferring and that the duties of a POD are “to sit in the courtroom and call the next probation officer and tell them when their case is coming in to court.”   Pl's Ex. E, 90.   The plaintiff was performing these duties after transferring to the New Haven location.   Accordingly, the plaintiff did not suffer disparate treatment.

C

Lack of Performance Evaluations

Additionally, the plaintiff did not receive a performance evaluation for 2008, 2009, or 2010.   See Pl.'s Ex. C, 9. Because “most positions require that State employees bring a copy of their last 2 or 3 performance evaluations ․ the plaintiff was disqualified since she had no evaluations to produce.”   Pl's Ex. C, 11–12.   The lack of performance evaluations has hindered the plaintiff's ability to progress in her career.   The plaintiff has suffered adverse employment action.   See Taylor v. Dept. of Correction, Superior Court, judicial district of New Haven, Docket No. CV–09–5030106–S (July 12, 2010, Wilson, J.) (plaintiff's “chances for promotion were adversely affected by the defendant's failure to assign [more prestigious shift] because the position would have provided him with the diversity in experience that would be important in a candidate's career growth, and opportunity for advancement”).

Lastly, to meet the forth prong of establishing a prima facie case of race discrimination, the adverse employment action the plaintiff suffered must have occurred under circumstances that give rise to an inference of discrimination on the basis of her race.   The plaintiff transferred to the Meriden location, “where there are a total of three (3) Intake Assistants, 1 African American ( [the plaintiff] ) and 2 Caucasians ․” Pl's Ex. B, 2.

The plaintiff, however, has failed to show that the adverse action gives rise to an inference of race discrimination.   The plaintiff concedes that she does not know if other employees have not received a performance evaluation.   Pl's Ex. C, 12.   The adverse employment action does not give rise to an inference of race discrimination, and, therefore, the plaintiff has failed to establish a prima facie case of race discrimination.   See Jones v. Dept. of Children & Families, Superior Court, judicial district of Hartford, Docket No. CV–10–6016879–S (November 26, 2013, Peck, J.) (finding circumstances giving rise to an inference of sexual orientation discrimination where plaintiff's “behaviors were mimicked, he was called flamboyant, his supervisor would roll her eyes at his behavior, and jokes were made at his expense” but insufficient evidence giving rise to an inference of race discrimination where “there is no evidence at all in the record that the plaintiff was discriminated against based on his race, nor [had] the plaintiff pointed to any such evidence in support of his pleadings”).

II

Retaliation

General Statutes § 46a–60(a)(4) provides in relevant part that “(a) It shall be a discriminatory practice in violation of this section ․ (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a–82, 46a–83 or 46a–84 ․”

The burden shifting analysis of McDonnell Douglas Corp. v. Green applies equally to retaliation claims in the context of this case.   See Jones v. Dept. of Children & Families, supra, Superior Court, Docket No. CV–10–6016879–S.  “[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 plaintiff has satisfied the first three elements to establish a prima facie case of retaliation.   The plaintiff participated in a protected activity when she filed a complaint with the CHRO. The defendant knew of the plaintiff's engagement in the activities.   Accordingly, the issue is whether the plaintiff suffered adverse employment action and, if so, whether there is a causal connection between the plaintiff's protected activity and the adverse employment action.

A

Performance Evaluation Remarks

On November 1, 2007, the plaintiff reported her co-worker's sexually harassing behavior to her supervisor.   The plaintiff claims that as a result of reporting the sexual harassment, the evaluation reflected a retaliation.   See Def's Ex. A, 3. The comments at issue states that “[the plaintiff] has, on occasion, become frustrated with the directives or job tasks given her by counselors in the office ․ She handles this appropriately the majority of the time, there have been occasions where [the plaintiff] has allowed personal feelings to adversely inform her behavior in the office.”   Def's Ex. 1, 60.   Although these comments did not affect the plaintiff's service rating of “satisfactory,” the plaintiff stated that she felt it “would affect [her] in the long run in terms of upward mobility if somebody [were] to read something like that.”   Def's Ex. 1, 60.   The rest of the plaintiff's evaluation, however, puts the plaintiff in a positive light with statements such as “[the plaintiff] is an integral part of the Family Services GA ․” and she “works independently and expediently, completing work in a timely fashion ․ She exceeds expectations in the quality and quantity of work she consistently produces.”   Def's Ex. A, 1. The evaluation was not an adverse employment action in retaliation against the plaintiff for making an internal complaint.

B

Lack of Performance Evaluations

As previously discussed, the plaintiff suffered adverse employment action in that she did not receive a performance evaluation for 2008, 2009, or 2010.   See Pl.'s Ex. C, 9. Because “most positions require that State employees bring a copy of their last 2 or 3 performance evaluations. the plaintiff was disqualified since she had no evaluations to produce.”   Pl's Ex. C, 11–12.   The issue is whether there is a causal connection between the plaintiff's protected activity and the adverse employment action.

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 has provided evidence that in December of 2008, “when [the plaintiff] got to [her] desk, [McCormack] heard [the plaintiff] calling the CHRO office to make [her] complaint;  and [McCormack] burst in the room, and she said, ‘You know, I'm the only one that [goes] to bat for you around here.   I don't know why you didn't come out to the Christmas party.’  “ Pl's Ex. E, 90.   The plaintiff further states that “McCormack ignored the plaintiff's presence every day, even times when the plaintiff tried to engage [McCormack] in conversation.”   Pl's Ex. C, 6. Additionally, this was also at the time the plaintiff was not receiving performance evaluations, contrary to the defendant's personnel policies.   See Pl.'s Ex. C, 9. There is a causal connection between the plaintiff's protected activity and the adverse employment action.   Based on the foregoing, the plaintiff has established a prima facie case of retaliation.

Once the plaintiff makes out her 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, 270 Conn. 751, 768, 855 A.2d 196 (2004).   The plaintiff submitted evidence that “Karen Eddy's testimony for the CHRO indicated that an evaluation would not be done for the plaintiff.   In her statement, Eddy said ‘let the next person worry about it.’  “ Pl's Ex. C, 9. The defendant has failed to submit evidence explaining the lack of the plaintiff's performance evaluations.   The defendant has failed to rebut the presumption of discrimination by failing to produce evidence of a legitimate, nondiscriminatory reason for its actions.

The plaintiff has established a prima facie case of retaliation.

III

Hostile Work Environment

The Supreme Court “declared in [Brittell v. Dept. of Correction, 247 Conn. 148, 166–67, 717 A.2d 1254 (1998) ], that to support a hostile work environment claim, the workplace [must be] 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 environment ․ By definition, therefore, a hostile work environment is one that is so severe that it affects the terms and conditions of the workplace.   In examining the phrase hostile work environment, we also look to Connecticut case law analyzing § 46a–60(a)(1), this state's broader antidiscrimination statute, which employs the identical phrase ‘terms, conditions or privileges of employment’ as § 46a–81c ․” ² (Emphasis in original;  footnote omitted;  internal quotation marks omitted.)  Patino v. Birken Mfg. Co., 304 Conn. 679, 691, 41 A.3d 1013 (2012).

In order to be actionable as a hostile work environment, the objectionable workplace environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.   See Patino v. Birken Mfg. Co., supra, 304 Conn. 699.  “Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct;  its severity;  whether it is physically threatening or humiliating, or a mere offensive utterance;  and whether it unreasonably interferes with an employee's work performance ․ As the Court of Appeals for the Second Circuit explained with respect to offensive slurs in another context:  ‘[T]here must be more than a few isolated incidents of racial enmity ․ meaning that [i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments ․ Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs ․ considered cumulatively in order to obtain a realistic view of the work environment ․’ “ (Citation omitted;  internal quotation marks omitted.)  Id., 699–700.

The plaintiff finds her work environment to be subjectively hostile.   The issue, then, is whether a reasonable person would find the plaintiff's workplace to be a hostile work environment that is so severe that it affects the terms and conditions of her workplace.   The plaintiff submitted evidence that McCormack got upset with her when she filed her complaint with the CHRO and that she “ignored the plaintiff's presence every day, even times when the plaintiff tried to engage [McCormack] in conversation.”   Pl's Ex. E, 90;  Pl's Ex. C, 6. Additionally, at the New Haven location in her position as a POD, the plaintiff stated that she had to sit in the back of the courtroom.   In one instance, the plaintiff was humiliated because the judge went off the record and asked if the plaintiff could leave.   See Pl's Ex. E, 91.   Furthermore, the plaintiff had to get a padlock for her desk because she was in court all day and had to lock up her pocketbook.   See Pl's Ex. E, 91.   The duties of a POD, however, are “to sit in the courtroom and call the next probation officer and tell them when their case is coming in to court.”   Pl's Ex. E, 90.   Based on the evidence, the defendant's actions do not involve any actions or statements made about the plaintiff's race, nor do they rise to the level of hostility or frequency that would alter the plaintiff's work environment.   Cf. Jones v. Dept. of Children & Families, supra, Superior Court, Docket No. CV–10–6016879–S (hostile environment where the plaintiff was ridiculed for being homosexual in that his behaviors were mimicked, he was called flamboyant, his supervisor would roll her eyes at his behavior, and jokes were made at his expense and employer did nothing to eliminate this abuse when informed).

Based on the foregoing, the plaintiff has failed to establish a prima facie case of a hostile work environment.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion for summary judgment on counts one and three.   The court denies the defendant's motion for summary judgment as to count two.

Brian T. Fischer, Judge

FOOTNOTES

FN1. The plaintiff also makes a claim for age and sex discrimination in her opposition to the motion for summary judgment.   These claims were not alleged in the operative complaint, and, accordingly, will not be addressed in this memorandum..  FN1. The plaintiff also makes a claim for age and sex discrimination in her opposition to the motion for summary judgment.   These claims were not alleged in the operative complaint, and, accordingly, will not be addressed in this memorandum.

FN2. General Statutes § 46a–60(a) provides in relevant part:  “It shall be a discriminatory practice in violation of this section:  (1) For an employer, by the employer or the employer's agent to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability ․” (Emphasis added.).  FN2. General Statutes § 46a–60(a) provides in relevant part:  “It shall be a discriminatory practice in violation of this section:  (1) For an employer, by the employer or the employer's agent to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability ․” (Emphasis added.)

Fischer, Brian T., J.