author: LAVINE, J.

text:
    TRACEY HAYNES ET AL. v. CITY OF MIDDLETOWN
    (AC 30964)
    Lavine, Robinson and Schaller, Js.

      Argued January 8
    officially released May 21, 2013

      Hugh D. Hughes, with whom, on the brief, were William F. Gallagher and Mark A. Balaban, for the appellants (plaintiffs).

      Matthew Dallas Gordon, with whom, on the brief, were Ruth Kurien and Nicholas N. Ouellette, for the appellee (defendant).
   Opinion

LAVINE, J.

More than eight years ago, following a physical education class at Middletown High School (school), a group of boys were engaged in horseplay in the boys locker room. One student pushed the plaintiff Jasmon Vereen into a locker with an exposed jagged and rusted edge that had been in that condition approximately one half of the school year. Vereen suffered a cut on his arm that left a scar. This case is the result.

This appeal returns to this court on remand from our Supreme Court. See Haynes v. Middletown, 306 Conn. 471, 475, 50 A.3d 880 (2012). The plaintiffs, Tracey Haynes, as the parent and next friend of the then minor Vereen, and Vereen individually, appealed from the judgment rendered by the trial court when it set aside the jury verdict and rendered judgment in favor of the defendant, the city of Middletown. On appeal, the plaintiffs claim that the court improperly set aside the verdict because (1) the defendant waived its special defense of governmental immunity by failing to request that the court charge the jury with respect to said special defense and (2) it erred in concluding that there was insufficient evidence of imminent harm. We affirm the judgment of the trial court

The following facts underlie this personal injury action. See Haynes v. Middletown, 122 Conn. App. 72, 74, 997 A.2d 636 (2010), rev’d, 306 Conn. 471, 50 A.3d 880 (2012). On March 16, 2005, following their physical education class, Vereen and other students were changing their clothes in the boys’ locker room. Although the school had informed students in writing that horseplay in the locker room was not permitted, Vereen and other students were engaged in horseplay at the time. Another student, Andre Francis, pushed Vereen into a locker with an exposed jagged and rusted edge. Vereen suffered a cut on his arm that left a scar. According to Vereen and Francis, the locker had been in a broken condition since the beginning of the school year.

As a result of Vereen’s injury, the plaintiffs commenced an action against the defendant seeking monetary damages. The plaintiffs alleged that Vereen was a student at the school who was in the locker room with other students on March 15, 2005, for a physical education class. They also alleged that there was a broken locker with an exposed jagged edge in the locker room and that the locker had been in that condition long enough for the exposed metal to have become rusty. Moreover, Vereen was injured when he was pushed into the broken locker during school hours. The complaint also alleged that the defendant and its agents, servants or employees were negligent, and that the action was being brought pursuant to General Statutes § 52-557n. The defendant denied the plaintiffs’ allegations of negligence and asserted the special defenses of governmental immunity and comparative negligence. The plaintiffs replied to the defendant’s special defenses with a general denial.

The case was tried to a jury in November, 2008. At the conclusion of the plaintiffs’ case, the defendant filed a written motion for a directed verdict “on the ground that the plaintiffs had presented no evidence to show that the alleged actions of the defendant were governed by any policies or procedures, as alleged in their complaint. The defendant argued that the lack of any such evidence demonstrated that the alleged negligent actions were discretionary and not ministerial, and that the doctrine of discretionary governmental immunity therefore would bar the plaintiffs’ recovery.” Counsel for the plaintiffs acknowledged that the alleged negligent acts were discretionary in nature but that the identifiable person, imminent harm exception to governmental immunity applied because the condition of the locker presented an imminent harm to an identifiable class of victims, i.e., students in the locker room. The court reserved judgment on the defendant’s motion for a directed verdict, and the defendant presented its case.

None of the parties filed a request to charge with respect to governmental immunity or any exception thereto, and the court did not instruct the jury on those legal principles. On November 25, 2008, the jury returned a verdict in favor of Vereen, although it found him to have been 33 percent responsible for his injury. On December 2, 2008, the defendant filed a motion to set aside the verdict and to render judgment in its favor. After the parties had briefed the issue and presented the court with oral arguments, the court issued a memorandum of decision on March 31, 2009; see Practice Book § 16-38; in which the court granted the defendant’s motion to set aside the verdict and rendered judgment in its favor.

The plaintiffs appealed to this court claiming that “the court improperly set aside the verdict on the ground of governmental immunity because (1) the defendant waived that defense by failing to request a charge on municipal immunity and (2) there was sufficient evidence of imminent harm for the plaintiffs’ claim to fall within the identifiable person, imminent harm exception to the immunity generally afforded municipalities for the negligent performance of discretionary acts.” Haynes v. Middletown, supra, 122 Conn. App. 73. A panel of this court concluded that the trial court properly set aside the jury verdict because the verdict was contrary to the law because “the plaintiffs never made the applicability of the identifiable victim, imminent harm exception to discretionary act immunity a legal issue in the case because they failed to plead it in their complaint or in their reply to the defendant’s special defense of governmental immunity.” Id., 82. The panel therefore affirmed the court’s judgment in the defendant’s favor. Id.

Thereafter, the plaintiffs filed a petition for certification to appeal in our Supreme Court. The petition was granted. See Haynes v. Middletown, 298 Conn. 907, 3 A.3d 70 (2010). After hearing the plaintiffs’ appeal, our Supreme Court concluded that this court erred in affirming the judgment of the trial court on the basis of a claim not raised by the parties as the “issue of the plaintiffs’ failure to plead the identifiable victim, imminent harm exception to discretionary act immunity in their complaint or in their reply to the defendant’s special defense of governmental immunity had not been raised or briefed prior to oral argument before the Appellate Court . . . .” Haynes v. Middletown, supra, 306 Conn. 473-74. The Supreme Court reversed the judgment of this court and remanded the case with direction for consideration of the pleading “issue only after affording the parties the opportunity to brief and argue that issue.” Id., 475.

On remand, we ordered the parties to file supplemental briefs on the effect, if any, of the plaintiffs’ failure to plead the identifiable victim, imminent harm exception to governmental immunity for discretionary acts in reply to the defendant’s special defense of governmental immunity. Following our review of the parties’ original and supplemental briefs and after oral argument, we have determined that the plaintiffs’ appeal can be resolved on the basis of their original appellate claims and that supplemental briefing was not necessary. We conclude that the defendant did not waive its special defense of governmental immunity by failing to request a jury instruction and that the court properly determined that the plaintiffs had not produced sufficient evidence of imminent harm to prevail on the exception to governmental immunity for discretionary acts.

We now summarize the relevant portions of the court’s thorough and detailed memorandum of decision on the defendant’s motion to set aside the verdict and motion for directed verdict. The court first recited the relevant factual allegations of the plaintiffs’ complaint, particularly the allegations regarding the condition of the subject locker. The plaintiffs alleged that the locker had been broken prior to this incident and specifically that “the defendant was negligent in that it knew or should have been aware of the condition of the broken, rusty, jagged locker before the incident; it caused or allowed and permitted the locker to remain in disrepair in an area where students were required to pass; it caused or allowed and permitted the broken, jagged, rusty locker to be exposed to persons required to be in said locker room,” among other allegations of negligence. The court found that only the defendant’s governmental immunity defense was relevant to its motion to set aside the verdict.

The court found that the defendant moved for a directed verdict after the plaintiffs rested their case because the plaintiffs had not provided evidence of any rule, policy, or directive requiring the defendant to undertake any specific safety precautions in connection with the inspection and repair of the lockers, and if there were a general policy concerning locker maintenance, repairing it was within the discretion of the defendant’s employees. The defendant argued that the plaintiffs’ action was barred by governmental immunity. The court agreed that repair of the lockers in the absence of evidence to the contrary was within the defendant’s discretion. Importantly, the court found that Vereen and Francis had testified that the subject locker had been broken since the beginning of the school year and that Vereen had been in the locker room on numerous occasions prior to the incident.

In opposing the defendant’s motion to set aside the verdict, the plaintiffs argued that the defendant had waived its right to rely on its special defense of governmental immunity because the defendant had not requested that the court instruct the jury on that special defense. The plaintiffs relied on Practice Book § lb-21, arguing that to claim the benefit of § 52-557n, the defendant had to file a request to charge on governmental immunity. The court disagreed, noting that “[claiming error in the charge to the jury and claiming error in the verdict as against [the] evidence are two distinct grounds for granting a motion to set aside.” See Phenning v. Silansky, 144 Conn. 223, 224, 129 A.2d 224 (1957) (court’s decision may be sustained on any valid ground). The court found that the defendant’s motion to set aside the verdict was sufficiently in accord with its motion for a directed verdict, which alerted both the court and the plaintiffs to the issue of insufficient evidence.

The court concluded, as a matter of law, that the negligent acts alleged by the plaintiffs were discretionary, and then addressed the identifiable person, imminent harm exception to governmental immunity for discretionary acts. To prevail on that exception, the plaintiffs had to prove imminent harm, an identifiable victim, and a public official to whom it was apparent that his or her conduct is likely to subject the victim to that harm. See Doe v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006). The court found that the plaintiffs had not met their burden of proof because they had not proved imminent harm. To meet the imminent harm prong, the risk must be temporary and of short duration. The imminent harm prong is not met if the harm can occur, if at all, at some unspecified time in the future. See Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989). The court concluded that the question turned on “whether there [was] sufficient evidence to show that the locker itself, without the attendant need for supervision, presented a foreseeable dangerous condition that was limited in duration and geographic scope.” (Emphasis in original.) To answer that question, the court analyzed the fact patterns in numerous trial and appellate court cases.

The court found that the plaintiffs had pleaded that the defendant “permitted the broken, jagged, rusty lock to be exposed to persons required to be in the locker room” and had faded to present sufficient evidence as to temporal limitations of the exception. The evidence demonstrated that the locker had been broken for approximately one half of the school year before Vereen was injured and that the temporal facts of this case were similar to those in Evon v. Andrews, supra, 211 Conn. 508, where the harm could have happened at any time, or not at all. The court concluded that there was no way to predict, by the preponderance of the evidence, when the imminent harm would have occurred, if at all. Thus there was no factual basis sufficient to demonstrate the risk of imminent harm and, as a matter of law, no jury reasonably could have found that all the elements of the identifiable person, imminent harm exception to governmental immunity had been met. It therefore set aside the jury’s verdict and rendered judgment for the defendant.

Before addressing the plaintiffs’ claims, we set forth the standard of review. “The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Internal quotation marks omitted.) Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 112, 728 A.2d 1103 (1999). “If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn. App. 597, 600, 691 A.2d 594 (1997).

“A trial court may set aside or direct a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied. . . . While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury. ... To determine whether the trial court abused its legal discretion, this court must consider the entire record and all of the evidence. ... A trial court’s ruling to set aside the verdict will not be overturned on appeal unless the trial court abused its discretion. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . [Moreover, we do not] determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 148, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002).

I

The plaintiffs’ first claim is that the defendant waived its special defense of governmental immunity by failing to ask the court to instruct the jury on the special defense. More specifically, the plaintiffs claim that the defendant withheld the governmental immunity defense from the jury by failing to request a charge on the defense, and that the court permitted the defendant to benefit from the defense while bypassing the jury on the identifiable person, imminent harm exception. We do not agree. As the procedural history demonstrates, the plaintiffs failed to present sufficient evidence to the jury to warrant an instruction on the identifiable person, imminent harm exception to governmental immunity for discretionary acts. See part II of this opinion. As a matter of law, there was no evidentiary basis on which the court properly could have charged the jury on the identifiable person, imminent harm exception to governmental immunity.

The law regarding directed verdicts and motions to set aside the verdict demonstrates why, as a matter of law, the jury could play no role in the resolution of the plaintiffs’ action against the defendant. Practice Book § 16-37 provides in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief ... for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted .... After the acceptance of the verdict . . . a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict .... If a verdict was returned, the judicial authority may allow the judgment to stand or may set the verdict aside and . . . direct the entry of judgment as if the requested verdict had been directed. ...” (Emphasis added.)

“It has long been the rule that [a] motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict.” (Internal quotation marks omitted.) Salaman v. Waterbury, 246 Conn. 298, 311, 717 A.2d 161 (1998) (Katz, J., concurring); see also W. Gallagher, Post-trial Motions (1980) p. 22. “The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied, is considered renewed by the motion for judgment notwithstanding the verdict. . . . [Practice Book § 16-37] provides for a motion for judgment notwithstanding the verdict in accordance with [the party’s] motion for a directed verdict.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Salaman v. Waterbury, supra, 309. If the court decides to grant the motion to set aside the verdict, the decision on the motion to set aside the verdict relates back to the motion for a directed verdict. See 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) § 196 a, p. 395.

“The purpose of the motion for a directed verdict with respect to the motions to set aside and for judgment notwithstanding the verdict is to give notice to the trial court.” Salaman v. Waterbury, supra, 246 Conn. 309. In Salaman, the “motion for a directed verdict adequately alerted the plaintiff and the trial court to the legal issue of the decedent’s entrant status, upon which the trial court based its decision in setting aside the verdict.” Id. “[T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . .” (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998).

Here, the defendant’s motion for a directed verdict was grounded in a claim of insufficient evidence; that is, there was no evidence that the alleged negligent acts were anything other than discretionary and that the defendant was entitled to governmental immunity. In its motion to set aside the verdict, the defendant again claimed that the plaintiffs had failed to present sufficient evidence to overcome its special defense of governmental immunity. The motion to set aside the verdict, therefore, related back to the evidence at the time the defendant filed its motion for a directed verdict.

In this case, the court decided the outcome of the plaintiffs’ cause of action, and the jury played no role in the outcome as a matter of law. The defendant pleaded its special defense of governmental immunity, which was the basis of both its motion for a directed verdict and its motion to set aside the verdict. The plaintiffs opposed the defendant’s motion to set aside the verdict claiming, but not pleading, that the identifiable person, imminent harm exception to governmental immunity for discretionary acts applied. In setting aside the verdict, the court determined that the plaintiffs had failed to present sufficient evidence to prevail on the exception. See part II of this opinion. It is well known that “[t]he trial court should not submit an issue to the jury that is unsupported by the facts in evidence.” State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993). Because the defendant’s motion to set aside the verdict related back to the status of the evidence at the time of the motion for a directed verdict, there was no factual basis for the court to instruct the jury on the governmental immunity special defense or any exceptions thereto. Without a factual basis to warrant a special defense charge to the jury, there was no reason for such a charge and ipso facto the defendant could not waive its special defense of governmental immunity by failing to request such a charge. We therefore conclude that the defendant did not waive its special defense of governmental immunity.

II

The plaintiffs’ second claim is that the court erred by setting aside the verdict on the basis of insufficient evidence of imminent harm. We disagree.

As previously stated, the defendant alleged governmental immunity as a special defense to the plaintiffs’ claims. Although the plaintiffs failed to allege the identifiable person, imminent harm exception to governmental immunity for discretionary acts, they raised it in opposition to the defendant’s motion for a directed verdict. When the court ruled on the motion to set aside the verdict, it considered the identifiable person, imminent harm exception to governmental immunity. The court granted the defendant’s motion to set aside the verdict because the plaintiffs failed to present sufficient evidence of an imminent harm to Vereen or another member of the identifiable class. The court found that the risk or condition complained of—the broken, jagged edge of the locker—was not of a temporary or limited duration. See Purzycki v. Fairfield, supra, 244 Conn. 110. Imminent harm excludes perils that “could have occurred at any future time or not at all.” Evon v. Andrews, supra, 211 Conn. 508.

The principles regarding governmental immunity are well known. “The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in . . . § 52-557n. . . . Section 52-557n governs municipal immunity and provides in relevant part: “(a) ... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” (Citation omitted; internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn. App. 262, 267, 41 A.3d 1147 (2012). “The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law.” (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 613.

There are, however, three exceptions to discretionary act governmental immunity. “First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . .” (Citations omitted; internal quotation marks omitted.) Id., 615-16.

The identifiable person, imminent harm exception to governmental immunity is three-pronged. “By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.” (Internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 136 Conn. App. 274. “If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception. . . . [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care.” (Citation omitted; internal quotation marks omitted.) Id., 274-75.

In this case, there is no question that Vereen was a member of a class of foreseeable victims. “ [Schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims.” Purzycki v. Fairfield, supra, 244 Conn. 109. The issue in dispute is whether the risk of harm was imminent. “For harm to be deemed imminent, the potential for harm must be sufficiently immediate. . . . The risk of harm must be temporary and of short duration. . . . Imminent harm excludes risks that might occur, if at all, at some unspecified time in the future.” (Citations omitted; internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn. App. 275. The court concluded that the risk of harm created by the broken locker was not temporary in nature and was not imminent in that the risk might occur, if at all, at some unspecified time in the future. The court found the risk more similar to the risk at issue in Evon v. Andrews, supra, 211 Conn. 501, than to the risk at issue in Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1984). We agree that the alleged risk was not imminent.

On appeal, the plaintiffs claim that the risk of harm was limited in time as Vereen and his fellow students had only five minutes in which to change their clothes in the locker room at the end of physical education class. They claim that the five minutes was temporary and limited to a specific foreseeable period of time. The five minutes of time in which Vereen and the other students were in the locker room, however, is not the risk of harm subject to the exception. The dangerous and defective condition of which the plaintiffs complained is the condition of the broken locker, as they pleaded. They also presented evidence that the broken locker had existed from the beginning of the school year until March, 2006, when Vereen was injured. The risk created by the broken locker had existed for approximately one half of the school year and therefore was not temporary in nature. The risk the broken locker posed, if at all, might have occured at some unspecified time in the future. We therefore conclude that the court properly set aside the verdict and rendered judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       In this opinion, we refer to Haynes and Vereen collectively as the plaintiffs and to Vereen individually by name where appropriate.

       General Statutes § 52-557n (a) provides in relevant part: “(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omission which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

       Despite having argued the applicability of the identifiable person, imminent harm exception in response to the defendant’s motion for a directed verdict, the plaintiffs never amended their general denial of the defendant’s governmental immunity special defense.

       See Practice Book §§ 16-35 and 16-37.

       Practice Book § 10-57 provides in relevant part: “Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply. . .

       The Supreme Court granted the petition for certification to appeal limited to the following issue: “Did the Appellate Court properly affirm the trial court’s [order] setting aside the jury’s verdict because the plaintiffs failed to plead the imminent harm exception to municipal immunity in their reply?” Haynes v. Middletown, 298 Conn. 907, 3 A.3d 70 (2010).

       The plaintiffs conceded that the issue of repair was discretionary.

       Practice Book § 16-21 provides in relevant part: “Any party intending to claim the benefit of ... the provisions of any specific statute shall file a written request to charge on the legal principle involved.”

       In Salaman, our Supreme Court determined that the defendant city’s motion for a directed verdict sufficiently alerted the court and the plaintiff of the insufficiency of the evidence. Salaman v. Waterbury, supra, 246 Conn. 309-10.

       The plaintiff in Evon claimed that the defendants were hable for failing to properly enforce certain regulations, which resulted in a fire in an apartment building. Our Supreme Court held that the imminent harm prong was not satisfied because “[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future.” Evon v. Andrews, supra, 211 Conn. 508.

       In Burns, a student fell while walking through an ice covered courtyard that was a main access of the school campus. Our Supreme Court determined that the “accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in the particularly ‘treacherous’ area of the campus.” Burns v. Board of Education, supra, 228 Conn. 650.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LORI CALVERT v. UNIVERSITY OF CONNECTICUT HEALTH CENTER
    (AC 34447)
    DiPentima, C. J., and Gruendel and Borden, Js.

      Argued March 13
    officially released May 21, 2013

      Neil Johnson, for the appellant (plaintiff).

      Michael G. Rigg, with whom, on the brief, were Adam J. Tarr and Robert D. Silva, for the appellee (defendant).
   Opinion

PER CURIAM.

This appeal concerns a medical malpractice action brought by the plaintiff, Lori Calvert, against the defendant, the University of Connecticut Health Center. The plaintiff appeals from the judgment of the trial court dismissing her action for failure to exhaust her administrative remedies. The plaintiff claims that the court improperly ruled that those remedies were not futile. We disagree and, accordingly, affirm the judgment.

After the plaintiff commenced this action, the defendant moved to dismiss the action on the ground of sovereign immunity. The court granted the motion to dismiss and rendered judgment accordingly. This appeal followed.

The following procedural history is undisputed. On November 19, 2010, the plaintiff brought this action in the Superior Court against the defendant for alleged medical injuries she suffered as a result of the negligent treatment she received while a patient at the defendant hospital in January, 2010. Although the plaintiffs complaint was accompanied by her attorney’s certificate of reasonable inquiry and a written opinion letter from a similar health care provider as required by General Statutes § 52490a, it did not contain an allegation that the claim for medical malpractice against the defendant—a state hospital—had been authorized by the claims commissioner, as required by General Statutes § 4-160 (a) and (b). The plaintiff filed a revised complaint on February 24, 2011. Thereafter, the defendant filed a motion to dismiss on the ground that, because the plaintiff had not secured authorization from the claims commissioner prior to commencing this action, the defendant was immune from suit under the doctrine of sovereign immunity. On January 31, 2012, the court granted the defendant’s motion.

The following additional procedural history is relevant to the plaintiffs claim on appeal. On December 30, 2011, during the pendency of this action and almost two years after the medical negligence as alleged in the complaint occurred, the plaintiff filed with the claims commissioner a certificate of good faith as is required by § 4-160 (b) to commence a medical malpractice action against the state. See footnote 2 of this opinion. On January 12, 2012, the defendant moved to dismiss the claim before the claims commissioner on the ground that it had not been filed within one year from the time that the claim had accrued, as required by General Statutes § 4-148 (a). On March 8, 2012, the parties appeared before the claims commissioner. According to her representations before this court during oral argument, when the plaintiff appeared before the claims commissioner, she ostensibly argued that the one year statute of limitations had been tolled by the continuous course of conduct doctrine. Nonetheless, the claims commissioner dismissed the claim because it had not been presented in a timely fashion as required by § 4-148 (a).

On March 13, 2012, the plaintiff requested that the General Assembly review the decision of the claims commissioner pursuant to General Statutes §§ 4-158 and 4-159. Again, according to her representations during oral argument to this court, she ostensibly presented the same tolling doctrine argument to the appropriate committee of the General Assembly on March 4, 2013. As of the date of the oral argument in this appeal, we have not been advised of the action, if any, of the General Assembly on this request for review.

The sole question before this court is whether the trial court properly rendered judgment of dismissal. Although in her brief the plaintiff did not explicitly invoke the doctrine of futility, in her oral argument to this court she has clarified the nature of her argument so as to do so. She argues that, because § 4-160 (a) provides that “[i]f such a certificate [of good faith] is submitted, the claims commissioner shall authorize suit against the state on such claim”; (emphasis added); the doctrine of futility excuses her from the necessity of filing such a certificate of good faith with the claims commissioner because the claims commissioner was required to authorize the suit by virtue of the mandatory nature of the word “shall” in § 4-160 (a). Thus, as she stated in oral argument, the filing of such a certificate of good faith with the claims commissioner is “basically a step that has no value,” because the claims commissioner has no discretion to deny such a claim. This argument turns the futility doctrine on its head.

Under the statutory scheme for presentation of medical malpractice claims against the state, if the claims commissioner authorizes a suit pursuant to § 4-160 (b), the state’s sovereign immunity is waived. See General Statutes § 4-160 (c). Taken at its face value—namely, that the claims commissioner has no discretion to deny a claim that is submitted with a certificate of good faith, irrespective of the facts and circumstances—the plaintiffs argument is not that the procedure is futile; it is, instead, that the procedure is too easy to comply with. Looking at the plaintiffs argument more closely, we conclude that the filing requirement for waiver of sovereign immunity is definitely not “a step that has no value.” It is the step that the legislature has mandated, and it gives the claims commissioner the opportunity to deny the claim for untimeliness, as the present case shows. Put simply, we see nothing futile in requiring a potential medical malpractice claimant to file a good faith certificate with the claims commissioner as a precondition to obtaining the commissioner’s authorization to sue the state—as the plaintiff has in fact done, albeit unsuccessfully thus far. Accordingly, we conclude that the trial court properly rendered a judgment of dismissal because, at the time the plaintiff commenced this action, she had not yet obtained authorization to sue.

The judgment is affirmed.

       General Statutes § 52-190a provides in relevant part: “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant .... To show the existence of such good faith, the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .”

       General Statutes § 4-160 provides in relevant part: “(a) When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be hable.
      “(b) In any claim alleging malpractice against the state, a state hospital or a sanitarium or against aphysician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim.”

       General Statutes § 4-148 (a) provides: “Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.”

       General Statutes § 4-158 (b) provides in relevant part: “Any person who has filed a claim for more than seven thousand five hundred dollars may request the General Assembly to review a decision of the Claims Commissioner .... A request for review shall be in writing and filed with the Office of the Claims Commissioner not later than twenty days after the date the person requesting such review receives a copy of the decision. The filing of a request for review shall automatically stay the decision of the Claims Commissioner.”
      General Statutes § 4-159 provides in relevant part: “(a) Not later than five days after the convening of each regular session and at such other times as the speaker of the House of Representatives and president pro tempore of the Senate may desire, the Claims Commissioner shall submit to the General Assembly (1) all claims for which a request for review has been filed pursuant to subsection (b) of section 4-158, together with a copy of the Claims Commissioner’s findings and the hearing record of each claim so reported.
      “(b) The General Assembly shall:
      “(1) With respect to a decision of the Claims Commissioner ordering the denial or dismissal of a claim pursuant to subdivision (1) of subsection (a) of section 4-158:
      “(A) Confirm the decision; or
      “(B) Vacate the decision and, in lieu thereof, (i) order the payment of the claim in a specified amount, or (ii) authorize the claimant to sue the state . . . .”

       We ordinarily do not address arguments raised for the first time during oral argument. See, e.g., Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). Nevertheless, by interpreting the argument section of the plaintiffs brief in conjunction with her oral argument, we have discerned what we believe is her principal claim on appeal. Further, there is no prejudice to the defendant, as it fully briefed the issue of the futility doctrine as a ground for affirming the court’s holding that it would not be futile for the plaintiff to exhaust her administrative remedies.

       General Statutes § 4-160 (c) provides: “In each action authorized by the Claims Commissioner pursuant to subsection (a) or (b) of this section or by the General Assembly pursuant to section 4-159 or 4-159a, the claimant shall allege such authorization and the date on which it was granted, except that evidence of such authorization shall not be admissible in such action as evidence of the state’s liability. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.”


author: ALVORD, J.

text:
    RASHAD WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 33680)
    Gruendel, Alvord and Flynn, Js.

      Argued February 4
    officially released May 21, 2013

      Daniel C. Ford, special public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ALVORD, J.

The petitioner, Rashad Williams, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the court abused its discretion when it denied his petition for certification to appeal and improperly concluded that he had not established that his trial counsel rendered ineffective assistance. We dismiss the petitioner’s appeal.

The facts that the habeas court adopted were set forth by this court in the petitioner’s direct appeal from his judgment of conviction in the underlying criminal matter. As recounted by this court in that proceeding, “[t]he jury reasonably could have found the following facts. On August 19, 2002, at approximately 4 p.m., Donnell Williams, the victim, drove to Hartford in his Oldsmobile Aurora to pick up Marlon Monts, his first cousin. The two men drove to the house of the victim’s girlfriend in New Britain to get supplies to clean his car. They then went to a commercial car wash in New Britain.

“The victim drove the car to one of the vacuum cleaners at the car wash. While the victim was cleaning the inside of the vehicle, Monts sat on a curb near the vacuum cleaner and read a newspaper. Around this time, a Cadillac entered the first self-service bay at the car wash. Monts recognized the car as one that he had seen earlier that day when he and the victim were driving through Hartford. Monts recalled that when he saw the Cadillac in Hartford, the [petitioner] was driving the car. When Monts observed the Cadillac at the car wash, the [petitioner], Norman Moore and one other African-American man were standing around the car. They were not washing or vacuuming the car; one was pacing around, another was sitting on one of the vacuum cleaners and the [petitioner] was standing in the bay. Both Monts and the victim thought it was suspicious that the three men were loitering in the self-service bay of the car wash, but were not washing the car. Nonetheless, the victim and Monts had no interaction with the group of men at that time.

“Soon after Monts observed the Cadillac in the first bay, the victim moved his car into one of the other self-service bays to wash his car. The Cadillac left the car wash at this time. After the victim finished washing his car, he drove it around to the back of the car wash, away from the vacuum cleaners and the self-service bays, to dry his car. Monts sat in the passenger seat listening to music while the victim dried his car and fixed the stereo system that was located in the trunk of his car. Monts and the victim then noticed the three men who had been in the Cadillac earlier walking toward them. Monts got out of the car.

“One of the men walked toward the hood of the victim’s car, another walked toward the middle of the driver’s side and Moore walked toward the trunk area, where the victim was standing. The victim noticed that the man walking toward the middle of the car was wearing a black glove, which stood out as unusual because it was August. As a result, the victim asked Monts to pass him his handgun, which was located next to the console, on the side of the car seat. Immediately after Monts gave the victim the gun, Moore stopped about four feet from the victim. Moore fired a gunshot at the victim, and the victim fired back.

“Unsure whether the victim had survived the gunshot, Monts ran through some nearby bushes into a neighborhood adjacent to the car wash and called the police. In the meantime, the men ran back toward the self-service bays, and two of them sped away in the Cadillac. The victim got back in his car and tried to follow the Cadillac in order to obtain the license plate number of the car. He was unable to obtain the license plate number, however, and after realizing that he had been shot in the chest, called the police using a cellular telephone that Monts had left on the car seat. At the direction of the police dispatcher, the victim returned to the car wash to wait for the police to arrive.

“Just after 8:30 p.m., Michael Baden, a sergeant with the New Britain police department, and several other officers arrived at the scene. Baden told the other officers to move the crowd that had gathered away from the area and to secure the scene. He then discovered Moore lying on the ground with a gunshot wound to the chest. He was not moving or breathing. The New Britain emergency medical services, which had arrived on the scene immediately after Baden, took Moore to New Britain General Hospital. Moore later died from his injuries.

“At the same time, Angel Escóbales, an officer with the New Britain police department, discovered the victim in his car in the comer of the car wash parking lot. The victim had a gunshot wound to his left side. He was able to speak to the officers, but he was having difficulty breathing. After being interviewed by Escó-bales, the victim was taken to Hartford Hospital, where he was treated for his injuries and released.

* * *

“During the investigation that evening, Cary Carlone, a detective with the New Britain police department, followed up on a report of the license plate number of the Cadillac. Carlone discovered that the car was registered to the [petitioner]. At approximately 2:45 a.m. on August 20,2002, Carlone located the Cadillac behind a residence in Hartford that belonged to an aunt of the [petitioner]. Although Carlone tried to locate the [petitioner] at that time, the detective was unable to do so.

“Later that night, however, Patrick Meehan, a state police trooper, encountered thé [petitioner] on the westbound side of Interstate 84 in West Hartford. The [petitioner] was in a Toyota that was parked on the shoulder in the breakdown lane. Although he did not have any identification with him, the [petitioner] gave Meehan his name and his date of birth. Upon reporting the name to the state police dispatcher, Meehan discovered that the [petitioner] was suspected of being involved in the incident at the car wash in New Britain. An officer from the New Britain police department subsequently arrived to take the [petitioner] into custody.” (Footnote omitted.) State v. Williams, 94 Conn. App. 424, 426-29, 892 A.2d 990, cert. denied, 279 Conn. 901, 901 A.2d 1224 (2006).

The petitioner was convicted, after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (6) and 53a-48, assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8 (a), and attempt to commit murder in violation of General Statutes §§ 53a-54a, 53a-49 (a) (2) and 53a-8 (a). Id., 425. He appealed to this court, claiming that there was insufficient evidence to convict him of any of these charges, and this court affirmed the judgment of the trial court. Id., 425-26. Our Supreme Court denied his petition for certification to appeal from the judgment of this court. State v. Williams, 279 Conn. 901, 901 A.2d 1224 (2006).

On January 13, 2011, the petitioner filed an amended petition for a writ of habeas corpus claiming, inter alia, that the petitioner’s trial counsel provided ineffective assistance by failing to advance an identity defense. Specifically, the petitioner claimed that his trial counsel was ineffective because he failed to: (1) hire an eyewitness identification expert; (2) attack the identification procedures used by the police department; and (3) effectively cross-examine the eyewitnesses about the petitioner’s presence at the scene of the crime. On June 24, 2011, the habeas court issued a memorandum of decision denying his petition for a writ of habeas corpus.

In addition to addressing the claims that the petitioner does not raise on appeal, the habeas court found that the petitioner’s trial counsel, Claud Chong, “did not miss the issue of identity but instead made a deliberate, strategic decision not to contest it. He testified credibly that he was familiar with some of the contemporary research on eyewitness identifications and that he could have retained an expert. He chose not to do so primarily because the petitioner, in conversations with Chong, did not dispute his presence at the scene. Instead, the petitioner suggested that Monts and [the victim] were familiar with him and that they had had a prior run-in.

“Chong also testified that he was faced with a difficult client who said different things at different times. Chong nevertheless endeavored to provide his client [with] a defense. Chong essentially decided the best approach was to argue that the state had not proven beyond a reasonable doubt that the petitioner had any criminal involvement in the shooting. Accordingly, Chong made the following closing argument to the jury: ‘There was no evidence that [the petitioner] had a gun. There was no evidence that [the petitioner] fired a gun. There was no evidence that he was part of a conspiracy, a plan, an agreement to assault [the victim] or to kill [the victim] as the state has alleged. So, therefore when you go over all of the evidence, you are left with one conclusion. The evidence is insufficient and we don’t really know what happened.’

“The argument was a valid one. Given that there was no direct evidence that the petitioner shot or even carried a weapon, or had any physical contact with any of the victims, there was good reason to question whether the petitioner was criminally involved in an assault, or rather was just an innocent bystander. Indeed, the sufficiency of the evidence on all three counts was the only issue raised and addressed on the merits in the Appellate Court. . . . Thus, it was within the realm of reasonable trial strategy for Chong to pursue a defense of no criminal involvement rather than misidentification. That being the case, there was no ineffective assistance of counsel.” (Citation omitted.)

On appeal from the judgment of the habeas court, the petitioner focuses his argument on Chong’s failure to cross-examine the victim and Monts about the petitioner’s presence at the scene of the crime. He also mentions that Chong should have attacked the validity of the identification based on the potential flaws of relying on eyewitness testimony and identification from a photographic array. All of these arguments are advanced within the framework of the petitioner’s general claim that his trial counsel rendered ineffective assistance by not advancing an identity defense. Determining whether any of the specific alleged errors constituted deficient performance requires an analysis of the dispositive issue in this appeal: whether Chong’s failure to advance arguments to support an identity defense constituted ineffective assistance. We therefore review this general claim without addressing in detail each of the specific examples the petitioner provides as support for that claim.

“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Crawley v. Commissioner of Correction, 141 Conn. App. 660, 664, 62 A.3d 1138 (2013).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.” (Internal quotation marks omitted.) Lopez v. Commissioner of Correction, 142 Conn. App. 53, 57, 64 A.3d 334 (2013). “When a [petitioner] complains of the ineffectiveness of counsel’s assistance, the [petitioner] must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “A [petitioner’s] claim that counsel’s assistance was so defective as to require a reversal of the conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 141 Conn. App. 626, 632, 62 A.3d 554 (2013).

“[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Internal quotation marks omitted.) Griffin v. Commissioner of Correction, 137 Conn. App. 382, 391, 47 A.3d 956, cert. denied, 307 Conn. 921, 54 A.3d 182 (2012). “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland v. Washington, supra, 466 U.S. 689. Likewise, “there is no expectation that competent counsel will be a flawless strategist or tactician . . . .” Harrington v. Richter, 562 U.S. 86, 110, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). The standard is one of reasonableness, and “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. . . .

“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . .

“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions.” Strickland v. Washington, supra, 466 U.S. 690-91.

In the present case, the petitioner claims that the habeas court abused its discretion by denying his petition for a writ of habeas coipus under the deficient performance prong of Strickland due to Chong’s failure to present an identity defense. The habeas court found, however, that Chong considered an identity defense, but after conducting witness interviews and reviewing police reports, he chose to pursue a defense that he believed would be more successful. The reason for not choosing an identity defense came from conversations that Chong had with the petitioner prior to trial. In those conversations, Chong learned that Monts and the victim, the two eyewitnesses who identified the petitioner, knew the petitioner prior to the incident at the car wash, and that the incident could have arisen because of a prior dispute between the eyewitnesses and the petitioner. According to Chong’s testimony before the habeas court, “[the petitioner] implied on numerous occasions that he was present at the scene of the shootout of the car wash.” Further investigation by Chong revealed that the petitioner’s car was identified near the scene of the incident.

Chong investigated the possibility of presenting an identity defense and learned from the petitioner and other sources that pursuing such a defense was fruitless, as it was very likely that the petitioner was present at the scene of the crime. He decided that arguing that the state had insufficient evidence to prove that the petitioner had the requisite intent to be convicted of the conspiracy, assault or attempted murder was a preferable strategy to an argument that the petitioner was not present when the victim was shot. This was Chong’s strategic decision, and it was based, in part, on what the petitioner told him. Taking into consideration the facts that Chong had available at the time when he formulated his theory of defense, the habeas court concluded that Chong’s strategy was a reasonable exercise of professional judgment.

After a thorough review of the record, we conclude that the habeas court properly concluded that the petitioner failed to sustain his burden of demonstrating that Chong performed deficiently. The petitioner failed to establish that the issues he raised are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions he raised are adequate to deserve encouragement to proceed further. See Crawley v. Commissioner of Correction, supra, 141 Conn. App. 664. Accordingly, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal from the judgment denying his amended petition for a writ of habeas coipus.

The appeal is dismissed.

In this opinion the other judges concurred.

       Donnell Williams is not related to the petitioner, Eashad Williams. See State v. Williams, 94 Conn. App. 424, 426 n.2, 892 A.2d 990, cert. denied, 279 Conn. 901, 901 A.2d 1224 (2006).

       The petitioner also claimed that he received ineffective assistance from his trial counsel because counsel failed to: (1) effectively explain to the petitioner his potential exposure to jail time and his right to decide whether to testify; (2) effectively impeach and cross-examine the victim and Monts; (3) present a “ ‘lack of forensic evidence’ ” defense; (4) present an alibi defense; and (5) present a third party culpability defense. The habeas court concluded that no ineffective assistance of counsel stemmed from any of these claims, and the petitioner does not contest that determination on appeal. We therefore restrict our review to the sole ground that the petitioner raises in this appeal: whether the petitioner’s trial counsel provided ineffective assistance by failing to advance an identity defense.

       The habeas court noted that “[t]he petitioner’s disruptive behavior in court during the habeas trial, and his cavalier allegations that Chong was a liar, confirmed Chong’s point.”

       We note that Chong did raise the issue of identity in his closing argument. The habeas court found that “Chong testified that he made this argument, not because identity was his principal defense, but because it offered another opportunity for the jury to find reasonable doubt. The petitioner does not claim ineffective assistance from the fact that Chong essentially raised identity as an alternate theory.” In this appeal, the petitioner claims that Chong’s raising of an identity defense in his closing argument, without exploring such a defense throughout the trial, is indicative of his realization that he should have pursued an identity defense from the onset. We are not persuaded that mentioning identity during closing argument as part of a broader argument in which Chong was attempting to cast reasonable doubt is probative of the petitioner’s claim that Chong should have advanced an identity defense argument throughout the trial.


author: FLYNN, J.

text:
    DORIS FELICIANO v. AUTOZONE, INC.
    (AC 34379)
    Gruendel, Alvord and Flynn, Js.

      Argued February 4
    officially released May 21, 2013

      Josephine Smalls Miller, for the appellant (plaintiff).

      Emery K. Harlan, pro hac vice, with whom was Kris-tan Peters-Hamlin, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff, Doris Feliciano, appeals from the trial court’s grant of summary judgment in favor of the defendant, Autozone, Inc., on all five counts of the plaintiffs complaint alleging national origin discrimination, religious discrimination, sexual harassment, disability discrimination and race discrimination in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq., specifically, General Statutes § 46a-60. On appeal, the plaintiff claims that the court improperly rendered summary judgment because there existed genuine issues of material fact, which made the rendering of summary judgment inappropriate. We disagree and affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to the plaintiffs appeal. The plaintiff is a black female who was bom in the U.S. Virgin Islands and practices the Rastafarian religion. As part of her religion, she wears her hair in dreadlocks. The plaintiff was employed by the defendant, first as a sales clerk and later as a supervisor, for a few years before being transferred to the defendant’s Bloomfield location (store). Michael Balboni became the manager of the store in 2005, while the plaintiff was a supervisor there. The defendant had a company wide customer loyalty reward card program in place for purchases made by customers. In May, 2007, the defendant’s automatic loss prevention computer program flagged twenty transactions between April 28 and May 9, 2007, involving the same customer loyalty card number. Nineteen of the twenty transactions were listed as being processed under the plaintiffs customer service representative number.

On May 16, 2007, the plaintiff was accused by the defendant of improperly using a customer loyalty reward card for her own use. Patricia Vasquez, a loss prevention specialist, was sent by the defendant to investigate the situation. Vasquez questioned the plaintiff in the presence of Erwin Ballou, a district manager of the defendant. At the interview, the plaintiff admitted that she signed into the cash register and left it signed in under her customer service representative number for other employees to use. The plaintiff further admitted that she was “wrong” for letting other employees work under her customer service representative number. Vasquez forwarded her report, including the plaintiffs statements, to the defendant’s staff attorney, Timothy P. Harrison, in Tennessee. He was not acquainted with the plaintiff. Harrison recommended that the plaintiffs employment be terminated, and Azeem Sikandar, regional manager for the defendant, followed the recommendation by calling for the termination of the plaintiffs employment on the ground that she had violated the defendant’s loss prevention policy. The plaintiffs employment was terminated on May 22, 2007. Additional facts regarding the plaintiffs employment at the store will be set forth as needed.

Following her termination, the plaintiff filed a timely complaint with the Connecticut commission on human rights and opportunities on July 27, 2007, within 180 days of the actions attributed to the defendant, and with the federal Equal Employment Opportunity Commission. The federal Equal Employment Opportunity Commission issued a notice of right to sue on April 7, 2009, and the Connecticut commission on human rights and opportunities released jurisdiction on April 14, 2009. On April 30, 2009, the plaintiff commenced this action in the trial court pursuant to the Connecticut Fair Employment Practices Act.

The defendant moved for summary judgment on all five counts of the plaintiffs complaint and, following oral argument by counsel, the court issued its memorandum of decision and entered its corresponding judgment on February 10, 2012, rendering summary judgment on all counts in favor of the defendant. This appeal by the plaintiff then followed.

On appeal, the plaintiff claims that the court erroneously rendered summary judgment on all five counts because there were genuine issues of material fact that could not be resolved at the pretrial stage. We will address the five counts of the plaintiffs complaint in three groups. First, we will address the plaintiffs claim of disability discrimination, next we will address the plaintiffs claim of sexual harassment, and last we will address the plaintiffs claims of national origin, religious and race discrimination.

We begin by setting forth our standard of review and the principles that guide our analysis for appeals from the rendering of 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. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ” (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008).

“A material fact is a fact that will make a difference in the result of the case. ... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. . . . The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact. . . . Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate.” (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn. App. 188, 193, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Rivers v. New Britain, supra, 288 Conn. 10.

I

We first address the plaintiffs claim of disability discrimination. The following additional facts are relevant to this claim. In the plaintiffs complaint, she alleges that she injured her back, knee and foot during the second half of 2006. Specifically, the plaintiff claims that she suffers from chronic swelling in her left foot due to a work-related injury. The plaintiff further alleges that in late January or early February, 2007, she gave the defendant a doctor’s note requesting a light duty accommodation because of her alleged physical disability, but Balboni denied her request. The plaintiff also claims that a coworker with a pacemaker was provided with a light duty accommodation. Finally, the plaintiff alleges that when she felt the need to sit or rest because of pain from her alleged disability, Balboni would task her with additional work.

“In order to survive a motion for summary judgment on a reasonable accommodation claim, the plaintiff must produce enough evidence for a reasonable jury to find that (1) [s]he is disabled within the meaning of the [statute], (2) [s]he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiffs] disability, did not reasonably accommodate it. ... If the employee has made such a prima facie showing, the burden shifts to the employer to show that such an accommodation would impose an undue hardship on its business.” (Citations omitted; internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415-16, 944 A.2d 926 (2008).

Although the plaintiffs complaint alleged foot, knee and back pain, the plaintiffs objection to the defendant’s motion for summary judgment addressed only her foot injury. We will only address the plaintiffs disability discrimination claim with respect to her foot injury because “[w]here a claim is asserted . . . but thereafter receives only cursory attention . . . without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . These same principles apply to claims raised in the trial court.” (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

The plaintiff failed to produce enough evidence for a reasonable jury to find that she was disabled within the meaning of § 46a-60. Accordingly, her reasonable accommodation disability discrimination claim cannot survive a motion for summary judgment. Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415-16. The defendant submitted an affidavit from Dr. Irving J. Buch-binder with its motion for summary judgment. Dr. Buchbinder is a podiatrist and the plaintiff was a former patient. He swore in relevant part: “Between September 18, 2006 and September 2, 2008,1 treated [the plaintiff], who came to Community Health Services complaining of pain to the top of her left foot, which she claimed was caused by a car battery having fallen on her left foot in July 2006. . . . The last time [the plaintiff] came to my office for podiatric treatment was in September 2008, when she complained about an in-grown toe nail. However, she stated that it did not bother her enough to receive pain treatment. . . . Based on my review of [the plaintiffs] files and based on my treatment of her, I have come to the conclusion that [the plaintiff] does not have a permanent disability, nor does she have an impairment of a major life activity. . . . [The plaintiffs] foot injury of which she complained to me, and for which I examined her feet, clearly does not constitute a permanent disability.” The plaintiff failed to submit any medical evidence of this alleged disability to raise a genuine issue of material fact.

“Courts in the Second Circuit have consistently held that when a plaintiff fails to offer any medical evidence substantiating the specific limitations to which [s]he claims [s]he is subject due to h[er] conditions, [s]he cannot establish that [s]he is disabled within the meaning of the [Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.]. . . . Because [the] [p]laintiff provides no evidence of h[er] disability beyond h[er] own testimony . . . from which the extent or duration of h[er] impairment or limitation may be discerned, and more is required in the Second Circuit, [the] [plaintiff has failed to demonstrate [Americans with Disabilities Act] or [Connecticut Fair Employment Practices Act] disability, and summary judgment will enter on h[er] [Connecticut Fair Employment Practices Act] claim.” (Citations omitted; internal quotation marks omitted.) Buotote v. Illinois Tool Works, Inc., 815 F. Sup. 2d 549, 557-58 (D. Conn. 2011); see also Douglas v. Victor Capital Group, 21 F. Sup. 2d 379, 392 (S.D.N.Y. 1998) (“[the plaintiffs] testimony as to the (alleged) limits on his ability to walk, without supporting medical testimony, simply is not sufficient to establish his prima facie case under the [Americans with Disabilities Act] ”). Despite the fact that “the [Connecticut Fair Employment Practices Act’s] definition of physical disability is broader than the [Americans with Disabilities Act’s definition]”; Beason v. United Technologies Corp., 337 F.3d 271, 278 (2d Cir. 2003); the plaintiff offered no medical evidence of her alleged disability.

We agree with the court that this kind of expert evidence, which was not proffered by the plaintiff, was necessary in order for this claim to survive the defendant’s motion for summary judgment. The plaintiff did not produce any medical evidence from which a reasonable jury could find that she is disabled within the meaning of the Connecticut Fair Employment Practices Act. The plaintiff, therefore, cannot establish either temporary or permanent disability, which is needed to place her within the protected class of disabled persons. We reject the plaintiffs claim on appeal that her unsupported testimony that she was disabled creates any issue of material fact regarding her claim of disability discrimination. The plaintiffs reasonable accommodation disability discrimination claim, thus, fails to survive the defendant’s motion for summary judgment. See Maglietti v. Nicholson, 517 F. Sup. 2d 624, 631 (D. Conn. 2007).

II

We next address the plaintiffs sexual harassment claim. The following additional facts are relevant to this claim. In the plaintiffs complaint, she alleges that in February, 2007, “Balboni kept rubbing his body against [the] [plaintiffs as he walked past her in the aisles even though there was plenty of room.” The plaintiff further alleges that she told Balboni to stop or he would get in trouble. After the plaintiff requested that Balboni stop this behavior, he allegedly “retaliated against her by sending her a text message saying, ‘you b[itc]h.’ ”

Section 46a-60 provides in relevant part: “(a) It shall be a discriminatory practice in violation of this section ... (8) For an employer ... to harass any employee ... on the basis of sex or gender identity or expression. ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment . . . .”

Count three of the plaintiffs complaint is entitled “Connecticut Fair Employment Practices Act (Sexual Harassment).” After incorporating by reference the allegations of paragraphs one through twenty-one of count one of her complaint, the gravamen of count three of her complaint, paragraph twenty-two, reads as follows: “By its termination of [the] [plaintiffs employment when similarly situated employees, who are not of the same religious belief as [the] [p]laintiff, were not terminated for the same offense, [the] [defendant has discriminated against [the] [p]laintiff based upon her religion in violation of the Connecticut Fair Employment Practices Act.” In its answer to the plaintiffs paragraph twenty-two, the defendant “denie[d] the allegations of [c]ount [t]hree, [paragraph twenty-two], and notes that the allegations of this paragraph make no reference to a violation of the Connecticut Fair Employment Practices Act on the grounds of Sexual Harassment.” The plaintiff made no effort to amend count three accordingly.

“[I]t is well settled that [t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint .... As a result, [i]t is incumbent on a plaintiff to allege some recognizable cause of action in h[er] complaint. . . . [I]f the complaint puts the defendant on notice of the relevant claims, then a plaintiffs failure specifically to allege a particular fact or issue is not fatal to h[er] claim unless it results in prejudice to the defendant.” (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130-31, 2 A.3d 859 (2010).

In its memorandum of decision, the trial court noted that “the plaintiff incorporated paragraph [twenty-two] of count two, alleging religious discrimination, as her concluding paragraph of count three (sexual harassment), which merely states that she was terminated based on discrimination against her because of her religion.” The trial court also stated that the plaintiff failed to “specifically reference the sexual harassment provision of the [Connecticut Fair Employment Practices Act], General Statutes § 46a-60 (a) (8) . . . .” The trial court then “assume [d] [the plaintiffs] intention was to rely on that provision in making a claim of sexual harassment.” The assumptions did not stop there. The trial court further assumed that out of the three alternative definitions of sexual harassment under § 46a-60 (a) (8), “the plaintiffs sexual harassment claim fits most logically into the category of a claim of ‘hostile or offensive work environment.’ ” The trial court then analyzed the defendant’s motion for summary judgment as to the sexual harassment claim in this framework.

Although, if we were to make similar assumptions, we would not disagree with the court’s analysis on the merits of the motion for summary judgment regarding the plaintiffs sexual harassment claim, we do not think that the court should have engaged in such analysis. Practice Book § 10-3 states in relevant part: “(a) When any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number. ...” “[Although a plaintiff should plead a statute in a complaint . . . failing to do so will not necessarily bar recovery as long as the [defendant is] sufficiently apprised of the applicable statute during the course of the proceedings.” (Emphasis in original.) Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). It is not apparent from an examination of the third count of the plaintiffs complaint or her opposition to the defendant’s motion for summary judgment what type of sexual harassment she was alleging. The plaintiffs sexual harassment claim, although incorporating by reference two paragraphs detailing the allegations of Balboni’s improper conduct with the plaintiff, including his text message, fails to allege that this conduct was sexual harassment under § 46a-60 (a) (8) or any other enumerated statute. The plaintiff also fails to specify which sexual harassment definition she was attempting to allege, namely, whether Balboni’s conduct was alleged to fall under subparagraph (A), (B) or (C) of § 46a-60 (a) (8). The defendant was not on notice of the statutory basis for the plaintiffs claim. See Brewster Park, LLC v. Berger, 126 Conn. App. 630, 636, 14 A.3d 334 (2011). Even if this were a scrivener’s error, as the trial court states, the plaintiff was put on notice by the defendant’s answer that the plaintiffs complaint failed to make any reference to a violation of the Connecticut Fair Employment Practices Act on the ground of sexual harassment. We do not assume, as did the trial court, what the plaintiff did not plead, namely, that the plaintiff was alleging a “hostile or offensive working environment” claim of sexual harassment under § 46a-60 (a) (8) (C).

The plaintiff failed to include necessary allegations in her sexual harassment claim, which consequently precludes her recovery for sexual harassment under this count. Sturm v. Harb Development, LLC, supra, 298 Conn. 130-31. The plaintiff failed to allege a recognizable cause of action for statutorily defined sexual harassment in violation of the Connecticut Fair Employment Practices Act. The defendant, therefore, was entitled to summary judgment on the plaintiffs sexual harassment claim.

Ill

Finally, we address the plaintiffs separately pleaded claims of national origin, religious and race discrimination, pleaded in counts one, two and five of the plaintiffs complaint, respectively. The following additional facts are relevant to this claim. In the plaintiffs complaint she alleges that “Balboni began to harass [the] [p]laintiff on a daily basis, in part because of her national origin. Balboni incorrectly believed that [the] [p]laintiff was from Jamaica because of her accent. Balboni called [the] [p]laintiff a ‘f*****g Jamaican.’ ” She further alleges that with regard to her dreadlocks, “Balboni constantly made comments about the way that [the] [p]laintiff looked, including asking her what was wrong with her hair and why did she do that to herself. Balboni asked [the] [p]laintiff whether she washed her hair, implying that she was not a clean person.” The plaintiff also alleges that “Balboni gave [her] menial jobs to perform and therefore treated her differently than the other supervisors who were not Rastafarian and not from the Virgin Islands.” Finally, the plaintiff alleges that “[o]n or about April 2007 [the] [p]laintiff learned that Balboni had been ridiculing her by wearing a dreadlocks wig and saying ‘I’m (Balboni) a Rastafarian. Watch me because I steal.’ . . . Balboni ridiculed [the] [plaintiff in front of other employees by placing the dreadlocks wig on his head, telling [the] [p]laintiff that this was how she looked. [The] [p]laintiff took a photograph of Balboni wearing the wig with her cell phone. ” Finally, the plaintiff alleges that her termination was discriminatory because it was based on her national origin, religion and/or race.

“The framework this 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.” Lyon v. Jones, 291 Conn. 384, 406-407, 968 A.2d 416 (2009). “We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both. State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989).” Craine v. Trinity College, 259 Conn. 625, 637 n.6, 791 A.2d 518 (2002). “Under this analysis, the employee must first make a prima facie case of discrimination.” Id., 637. 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. See McDonnell Douglas Corp. v. Green, supra, 802. “The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question.” Craine v. Trinity College, supra, 637. “This burden is one of production, not persuasion; it can involve no credibility assessment.” (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 506, 832 A.2d 660 (2003). “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, supra, 637.

The court concluded that “because the plaintiff has failed to present any evidence to support her claim that the circumstances of her termination give rise to an inference of discrimination, she has failed to make out a prima facie case as to her claims of national origin, religious and race discrimination. Based on the evidence submitted by the parties, no rational fact finder could determine that discriminatory animus fueled the defendant’s decision to terminate the plaintiff. Accordingly, the motion for summary judgment as to count one, two and five must be granted. . . . [T]he defendant is entitled to summary judgment on all counts of the plaintiffs complaint as a matter of law.”

Viewing the evidence in the light most favorable to the plaintiff, there are no genuine issues of material fact as to her satisfaction of the first three prongs for a prima facie case for national origin, religion and race discrimination. The plaintiff identifies herself as a black female who practices the Rastafarian religion and the defendant admits the same. The defendant also admits to the plaintiffs allegation that she was bom in the U.S. Virgin Islands, but the plaintiff alleges that Balboni perceived her as Jamaican. Being black, Rastafarian and perceived Jamaican are all protected classes in satisfaction of prong one. Neither party disputes that the plaintiff was qualified for her position, such that prong two is not at issue. There is also no dispute that the plaintiff suffered an adverse employment action, as is required by prong three, by being terminated by the defendant.

In order to survive the defendant’s motion for summary judgment, there must be a genuine issue of material fact as to the remaining fourth prong required for a prima facie case of discrimination, namely, whether the plaintiffs termination occurred under circumstances that give rise to an inference of discrimination.

The original loss prevention inquiry was triggered by the defendant’s automated computer program, which was not targeted at the plaintiff specifically, but designed to reveal any suspicious activity in connection with its customer loyalty reward card program, which rewards customers based on the amount spent at the defendant’s retail locations. That computer program revealed suspicious activity associated with a particular customer loyalty reward card number and the plaintiffs customer service representative number. The defendant investigated this activity by sending a loss prevention specialist, Vasquez, to meet with the plaintiff in the presence of Ballou. The plaintiff admitted to Vasquez and Ballou that she signed into the cash register with her customer service representative number, left herself signed in on the cash register for other employees to use and did not log out of the cash register before leaving the immediate area. The plaintiff offered these admissions as an explanation as to why multiple transactions were assigned to the single customer loyalty reward card under her customer service representative number. Vasquez forwarded her report, which included the plaintiffs admission of wrongdoing, in leaving the cash register unattended while it was still logged in under her customer service representative number in violation of company policy, to the defendant’s staff attorney, Harrison, in Tennessee. Harrison did not know the plaintiff. After Harrison reviewed Vasquez’ report, he recommended termination of the plaintiff. Sikandar, the regional manager, followed this recommendation. Sikandar was the final decision maker.

The computer program, Vasquez, Ballou, Harrison and Sikandar were involved in the investigation that eventually led to the termination of the plaintiff. The plaintiffs claims, however, involve the actions and statements of Balboni. “Isolated comments, unrelated to the challenged action, are insufficient to show discriminatory animus. [The plaintiff] must demonstrate [that] a nexus exists between these allegedly discriminatory statements and the [defendant’s] decision to terminate her.” (Internal quotation marks omitted.) Orisek v. American Institute of Aeronautics & Astronautics, 938 F. Sup. 185, 192 (S.D.N.Y. 1996), aff'd, 162 F.3d 1148 (2d Cir. 1998), cert. denied, 526 U.S. 1065, 119 S. Ct. 1456, 143 L. Ed. 2d 542 (1999). The defendant produced affidavits of Harrison, Sikandar, Balboni and Vasquez, all swearing that Balboni had no input into the investigation or discipline of the plaintiff. Particularly, Vasquez swore that it is the defendant’s common procedure to remove store managers from loss prevention investigations and resulting discipline, and such a procedure was followed here. The plaintiff, however, has failed to produce any countervailing evidence connecting Bal-boni’s allegedly discriminatory actions and statements with the defendant’s decision to terminate her. The plaintiff has not produced countervailing evidence showing that Balboni participated in the investigation that led to her termination or in the actual discipline decision. The plaintiff has produced no countervailing evidence that the defendant’s investigator and decision makers, Vasquez, Harrison, or Sikandar, consulted with Balboni in the process of investigating or terminating the plaintiff.

“[An adverse employment decision] is only actionable if the employer harbors a discriminatory animus and that animus is one of the causes of the adverse action taken against the employee.” Diamantopulos v. Brookside Corp., 683 F. Sup. 322, 327 (D. Conn. 1988). The plaintiff originally was identified by the defendant’s automated computer program by her customer service representative number. The program was run as to all of the defendant’s store locations in the New York region, which included this store. Being selected by such an automated computer program is not a circumstance giving rise to the inference of discrimination. Such an automated computer program does not equate with harboring discriminatory animus. Additionally, the plaintiff does not allege that Vasquez, Ballou or Harrison harbored discriminatory animus toward her.

The only remaining actor in the termination decision is the ultimate decision maker, Sikandar. In order to survive summary judgment, there must be a genuine issue of material fact regarding the circumstances surrounding Sikandar’s decision to terminate the plaintiff. The plaintiff alleged that Sikandar made a false statement that he was not aware of the plaintiffs protected status when he decided to terminate her because the plaintiff claims that she met him before. Sikandar, in his affidavit, swore that he “was not aware of [the plaintiffs] race, religion, ethnicity, national origin or religion, as they were irrelevant .... I made the decision solely and exclusively based on the fact that [the plaintiff] admitted to cash register misconduct and to violation of the loss prevention policy.”

Although this is a dispute as to whether Sikandar ever met the plaintiff and, thus, was aware of her protected status, it does not rise to a dispute regarding a material fact. First, the plaintiff never alleges that Sikandar was motivated by such knowledge and thus that he acted with discriminatory animus. Furthermore, Harrison stated in his affidavit that “approximately 99 percent of the time the [r]egional [m]anager follows the recommendation that the staff attorneys make.” The plaintiff does not offer any evidence to challenge Harrison’s statement. The plaintiff fails to raise an issue of material fact as to whether Sikandar terminated the plaintiff for a discriminatory reason and not upon Harrison’s recommendation. Last, the plaintiff fails to produce any evidence to contravene the defendant’s evidence that it consistently terminates employees for similar misconduct to that admittedly committed by the plaintiff. “Unless the plaintiffs can show that the defendants’ explanations are inherently suspect or can present other direct or circumstantial evidence suggesting that the proffered reasons are not true, then the defendants are entitled to summary judgment.” (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 518 n.35, 43 A.3d 69 (2012).

The plaintiff fails to present a factual predicate for her argument and thus fails to raise a genuine issue of material fact as to the existence of circumstances surrounding her termination that give rise to an inference of discrimination. There is no genuine issue as to the fourth prong required for a prima facie claim of discrimination. The plaintiff, therefore, cannot prove a prima facie case of discrimination under McDonnell Douglas Corp. audits progeny. Consequently, the defendant is entitled to summary judgment as to the plaintiffs claims of national origin, religious and race discrimination.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-60 provides in relevant part: “(a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, 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, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability . . . .”
      Although § 46a-60 (a) (1) was amended after the plaintiffs employment was terminated in 2007; see Public Acts 2011, No. 11-55, § 24; Public Acts 2011, No. 11-129, § 20; the changes are not relevant to this appeal. For convenience, we refer to the current revision of the statute.

       These undisputed facts are of some importance in light of the plaintiffs claim that she was discharged because of her manager’s improper references to her race, nationality, religion and appearance in the workplace.

       Allowing other employees to use the cash register while logged in under the plaintiffs customer service representative number and leaving the cash register unattended while still logged in under this number are violations of the defendant’s loss prevention policy.

       We should note, however, that although the plaintiff has failed to raise a genuine issue of material fact as to the existence of circumstances surrounding her termination that give rise to an inference of discrimination, we do not condone the alleged actions of Balboni.