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STEPHANIE DANNER v. COMMISSION ON HUMAN
RIGHTS AND OPPORTUNITIES ET AL.
(AC 44194)
Alvord, Alexander and Vertefeuille, Js.
Syllabus
The plaintiff filed an affidavit of illegal discriminatory practice with the
defendant Commission on Human Rights and Opportunities, alleging
that the defendant A Co. wrongfully terminated her employment. Follow-
ing an assignment of the matter to the commission’s Office of Public
Hearings, a human rights referee granted A Co.’s motion for summary
judgment, finding that there was no genuine issue of material fact. The
plaintiff and the commission separately appealed the referee’s decision
granting the motion for summary judgment to the Superior Court. The
plaintiff claimed that genuine issues of material fact existed. The trial
court consolidated the appeals, sustained the consolidated appeal and
remanded the matter for a trial before the Office of Public Hearings,
concluding that the referee improperly rendered summary judgment
because A Co. did not meet its burden of establishing that there were
no genuine issues of material fact. On A Co.’s appeal to this court,
held that the trial court properly sustained the consolidated appeal and
remanded the matter for a hearing: the court properly considered the
plaintiff’s affidavit as competent evidence in opposition to A Co.’s motion
for summary judgment as the plaintiff’s affidavit of discriminatory prac-
tice was sworn and was properly considered pursuant to the applicable
rule of practice (§ 17-49); moreover, the court properly conducted a
plenary review of the record in considering whether genuine issues
of material fact existed, as the deferential standard used to review
administrative fact-finding did not extend to the determination of
whether genuine issues of material fact existed in the summary judgment
context; furthermore, the court did not err in considering whether genu-
ine issues of material fact existed, as the record contained contradictory
information, including a sworn statement by an employee of A Co. that
the plaintiff’s job duties required her to be physically present at the
workplace and the plaintiff’s sworn statement that she had received a
workplace accommodation to work from home, and the referee, rather
than identifying factual disputes raised by the competing affidavits,
improperly decided the factual question by crediting the statements
made in the affidavit of the A Co. employee and improperly determined
that there were no genuine issues of material fact.
Argued March 2—officially released October 12, 2021
Procedural History
Appeals from the decision by a human rights referee
for the named defendant rendering summary judgment
in favor of the defendant Atos IT Solutions and Services,
Inc., and denying the plaintiff’s motion for reconsidera-
tion, brought to the Superior Court in the judicial dis-
trict of New Britain, where the court, Cordani, J., con-
solidated the appeals; thereafter, the court, Cordani,
J. rendered judgment sustaining the appeal and
remanding the matter to the named defendant for trial,
from which the defendant Atos IT Solutions and Ser-
vices, Inc., appealed to this court. Affirmed.
Martin J. Regimbal, pro hac vice, with whom was
Elizabeth F. Flynn, for the appellant (defendant Atos
IT Solutions and Services, Inc.).
Zachary T. Gain, for the appellee (plaintiff).
Michael E. Roberts, for the appellee (named defen-
dant).
William Tong, attorney general, Clare E. Kindall,
solicitor general, and Colleen B. Valentine and Matthew
F. Larock, assistant attorneys general, filed a brief for
the state of Connecticut as amicus curiae.
Opinion
ALVORD, J. This appeal arises out of an action by
the plaintiff, Stephanie Danner, in which a human rights
referee (referee) from the Office of Public Hearings
(office) of the defendant Commission on Human Rights
and Opportunities (commission) rendered summary
judgment in favor of the defendant Atos IT Solutions
and Services, Inc. (Atos). Thereafter, the plaintiff and
the commission appealed to the Superior Court,1 which
consolidated the appeals. The court, following oral
argument, sustained the appeal and remanded the mat-
ter to the office for trial. Atos appeals from the judgment
of the Superior Court sustaining the appeal and
remanding the matter to the office for trial. On appeal,
Atos claims that the Superior Court erred in considering
the plaintiff’s affidavit of illegal discriminatory practice
as evidence in opposition to Atos’ motion for summary
judgment and in relying on the averments contained in
the affidavit to determine that genuine issues of material
fact existed. Atos also claims that the Superior Court
erred in failing to afford deference to the referee’s deci-
sion.2 We affirm the judgment of the Superior Court.
The following facts and procedural history are rele-
vant to this appeal. On December 5, 2016, the plaintiff
filed an affidavit of illegal discriminatory practice with
the commission. In her affidavit, the plaintiff averred:
‘‘[Atos] has an office located at 7 McKee Place, Cheshire,
Connecticut 06410. . . . [Atos] employs [fifteen] or
more individuals. . . . [Atos] employed [the plaintiff].
. . . [Atos] hired [the plaintiff] in May, 2001. . . . [The
plaintiff’s] original job position was technical services
manager. . . . On or about August 8, 2016, [Atos] trans-
ferred [the plaintiff] to help desk agent. . . . [Atos]
employs David Hamilton. . . . Hamilton is a supervi-
sory employee. . . . Hamilton supervised [the plain-
tiff]. . . . [The plaintiff] has a disability. . . . Specifi-
cally, [the plaintiff] suffers from bipolar disorder and
anxiety disorder. . . . [Atos] was aware of the mental
disability. . . . [The plaintiff] had workplace accom-
modations for her disability. . . . The workplace
accommodation was working from home. . . . The
workplace accommodation was finite leaves of
absences (continuous and intermittent). . . . In June,
2016, [the plaintiff] took a continuous leave of absence.
The leave of absence went from June 14, 2016 through
August 19, 2016. . . . The leave of absence was disabil-
ity related. . . . The 2016 leave of absence was . . .
protected [by the Family and Medical Leave Act of 1993
(FMLA), 29 U.S.C. § 2601 et seq. (2012)]. . . . Follow-
ing her return from the FMLA protected 2016 leave of
absence, [Atos] asked [the plaintiff] to submit documen-
tation in support of her ongoing work from home
accommodation. . . . [The plaintiff] complied with
[Atos’] request and supplied documentation from her
physician. . . . On October 17, 2016, [Atos] terminated
[the plaintiff’s] employment. . . . [Atos] told [the plain-
tiff] that the termination was due to a reorganization
and that her ‘job was no longer available’. . . . In Octo-
ber, 2016, [Atos] employed about [forty] help desk
employees. . . . [The plaintiff] is unaware of any other
help desk employee terminated at the time [the plaintiff]
was terminated. . . . There were two new help desk
employees training for the position prior to [Atos] termi-
nating [the plaintiff’s] employment. . . . [Atos’] web-
site had the help desk agent II job posted as being open
in Cheshire, Connecticut at around the same time that
it terminated [the plaintiff’s] employment. . . . [The
plaintiff] can perform the essential functions of the job
with or without a reasonable accommodation. . . .
Any and all excuses to be offered by [Atos] to explain
the termination decision would be a pretext to mask
discrimination and/or retaliation. . . . [The plaintiff]
charges [Atos] with disability discrimination, failure to
accommodate and retaliation.’’
On October 3, 2017, the matter was sent to the office
for a public hearing through the early legal intervention
program. On December 26, 2018, Atos filed a motion for
summary judgment, in which it argued that the plaintiff
could not establish a prima facie case of disability dis-
crimination. Specifically, Atos argued that the plaintiff
was not qualified to perform the functions of her posi-
tion and that her employment was not terminated
because of her disability. It further argued that, even
if she could establish a prima facie case of discrimina-
tion, it had articulated a legitimate, nondiscriminatory
reason for terminating her employment and that she
could not demonstrate that such reason was pretextual.
With respect to the plaintiff’s claim of failure to provide
reasonable accommodations for her disability, Atos
argued that the plaintiff’s only request, to work from
home, was not a reasonable accommodation because
being present in the office was an essential function
that Atos was not required to waive. With respect to
the plaintiff’s claim of retaliation, Atos argued that there
was no evidence indicating a causal connection
between her requests for leave and to work from home
and the termination of her employment.
In support of its motion, Atos submitted affidavits of
Laurie Onderick, who was employed by Atos as a human
resource specialist responsible for leave administra-
tion,3 and Hamilton, who was employed by Atos as
service desk manager and was the plaintiff’s manager
throughout her employment, along with evidentiary
exhibits attached to both affidavits. In his affidavit,
Hamilton averred, inter alia, the following: ‘‘I managed
[the plaintiff] for her entire employment with Atos
beginning in 2001, when she became an employee of
Atos as a service desk manager level I. In this position,
she supervised service desk employees. . . . Due to
the loss of numerous Atos clients and due to the fact
that many of Atos’ IT help desk positions, including
those who reported to [the plaintiff], were being off-
shored to the Philippines in a cost saving effort, [the
plaintiff’s] managerial position was eliminated in
August, 2016, as her supervisory role was no longer
necessary. . . . The offshoring efforts began approxi-
mately seven years ago. . . . In order to avoid termi-
nating her altogether, I reassigned [the plaintiff] as a
service desk technician tasked with providing computer
support services to Cooper University Health Center
(‘Cooper Hospital’), an Atos client. . . . In this role
[the plaintiff] was expected to answer the helpline tele-
phones, receive, analyze, and resolve client issues, and
escalate issues when necessary. The problem solving
aspects of her position required her to learn new things
every day and to retain that knowledge. . . . I assumed
the duty of supervision over any remaining U.S. based
service desk technicians working out of the Cheshire,
Connecticut office. . . . While [the plaintiff] was on
FMLA leave in the summer of 2016, she and I communi-
cated via instant messages. It was then that she
informed me that her alleged bipolar and anxiety disor-
ders had severely impacted her short term memory.
Specifically, one of her messages to me read, ‘Honestly
I don’t know what you guys are going to do with me.
I have nobody to manage and I’d do a shitty job if I
did.’ She further told me that she ‘was trying to cut
down on the Klonopin but it’s at a why bother now. [Her]
short term memory is really bad and [it’s] permanent.’
Exhibit I to this affidavit is a true and accurate copy
of my text conversation with [the plaintiff]. . . .
‘‘As a service desk technician on the Cooper Hospital
account, it was critical that [the plaintiff] physically
present to Atos’ Cheshire, Connecticut office where the
account was managed. Onsite attendance was required
as problems had to be quickly resolved among the tech-
nicians and the managers to minimize impact to the
client’s services. Managers, like myself, had to be able to
immediately and directly communicate with the service
desk technicians assigned to us in case of failures to
critical hospital systems. Delays in resolving such IT
issues can literally have life or death implications. . . .
For example, Atos was responsible for the computers
located [in] Cooper Hospital’s operating rooms. If these
computers went down during surgery or for an
extended period of time, the results could be dire. The
urgent and fast pace[d] nature of the services the service
desk technicians had to provide in conjunction with
the managers required service desk technicians to phys-
ically be in the office. Thus, it was an essential job
function for service desk technicians assigned to the
Cooper Hospital account to work out of the Cheshire
office as opposed to remotely. All of the U.S. based
service desk technicians assigned to the account did
so. . . . Similarly, all of the Philippines based service
desk technicians assigned to the Cooper Hospital
account also worked together out of a local office as
opposed to individuals working remotely from home.
For the same reasons, none of these foreign based ser-
vice desk technicians assigned to the Cooper Hospital
[account] worked from home. . . . However, after
September 14, 2016, [the plaintiff] only physically
appeared for less than a single shift at the Cheshire
office. . . .
‘‘On October 9, 2016, I was informed that [the plain-
tiff’s] physician had ordered that she work from home
on a permanent basis. . . . Because such restriction
could not be accommodated due to the fact that [the
plaintiff’s] position required that she present for work,
l made the decision to terminate her. . . . Her last day
of employment with Atos was October 17, 2016. . . .
My decision to terminate [the plaintiff] was not based
on her alleged bipolar disorder and anxiety, nor her
requests to work from home or requests for leave.
Instead, it was based solely on the fact that she could
not perform an essential function of her job—physically
presenting for work and she conceded she could not
perform her duties. . . . On or around the day I termi-
nated [the plaintiff], there was an online posting for a
help desk analyst II position. However, the posting was
in error and was unposted approximately one week
later as the service desk was no longer hiring full time
employees at this time. Thus, the position ultimately
went unfilled by a full time employee. . . . I was laid
off on November 7, 2017, as part of the same costs
saving initiative that resulted in the elimination of [the
plaintiff’s] original managerial position.’’
On January 4 and 29, 2019, respectively, the commis-
sion and the plaintiff filed separate objections to Atos’
motion for summary judgment, in which they both
argued that the referee is not authorized to render sum-
mary judgment in the administrative proceedings before
the office. The plaintiff also objected on the ground
that the early legal intervention decision to send the
matter directly to public hearing necessarily meant that
there had been established the existence of genuine
issues of material fact. Atos filed replies to both objec-
tions.
On February 22, 2019, the referee granted Atos’
motion for summary judgment. The referee first deter-
mined that she had the authority to render summary
judgment in the administrative proceedings before the
office. The referee next rejected the plaintiff’s argument
that the fact that her complaint had been transferred
to the office for a public hearing necessarily established
the existence of genuine issues of material fact.
Ultimately, the referee concluded that Atos had met
its initial burden of demonstrating the absence of any
genuine issues of material fact. Specifically, she stated
that Atos ‘‘ha[d] made an affirmative evidentiary show-
ing that there is not a factual dispute that the [plaintiff’s]
position as a service desk technician required her to
be able to ‘learn new things daily and to maintain such
knowledge in order to receive, analyze, and resolve
client issues, and determine to escalate issues when
necessary.’ ’’ Referencing the plaintiff’s text message to
Hamilton, the referee found that, by the plaintiff’s own
admission, the plaintiff’s ‘‘ability to perform her job
duties was impaired as a result of her short-term mem-
ory loss due to the medications she was taking for
bipolar disorder and anxiety.’’ The referee further con-
cluded that Atos had made an evidentiary showing that
there was no factual dispute that the plaintiff’s job
duties required her to be present at Atos’ Cheshire office
and that her presence at the office was essential to her
position. The referee concluded that Atos had met its
initial burden of demonstrating the absence of any genu-
ine issues of material fact both that the plaintiff was
unable to perform the essential functions of her position
and that an indefinite work from home accommodation
was not a reasonable accommodation to which the
plaintiff was entitled. Lastly, the referee concluded that
Atos had met its initial burden of demonstrating that
it had a legitimate, nondiscriminatory reason for termi-
nating the plaintiff’s employment.
The referee determined that ‘‘the [plaintiff] failed to
present any concrete evidence demonstrating the exis-
tence of a disputed issue of material fact as to whether
the [plaintiff] was able to perform the essential func-
tions of the position, with or without a reasonable
accommodation, to wit, that she was qualified for the
job; whether the requested accommodation was a rea-
sonable one and did not present an undue hardship on
[Atos]; or whether the articulated business reasons for
[Atos’] employment decisions were merely a pretext
for discrimination.’’ Accordingly, the referee concluded
that Atos was entitled to judgment as a matter of law.
As to the plaintiff’s retaliation claim, the referee
determined that Atos was entitled to judgment as a
matter of law after determining that the plaintiff had
not ‘‘countered [Atos’] evidence by calling the tribunal’s
attention to other evidentiary items demonstrating that
the [plaintiff’s] participation in a statutorily protected
activity was a motivating factor in her termination under
the causal connection standard . . . or that [Atos’]
proffered reasons for the [plaintiff’s] termination were
pretextual.’’ (Citations omitted.) Accordingly, the ref-
eree granted Atos’ motion for summary judgment as to
all of the plaintiff’s claims.
The plaintiff filed a motion for reconsideration, and
Atos filed an opposition thereto. The motion was denied
on March 20, 2019. Thereafter, the plaintiff appealed
the decision of the referee to the Superior Court, and
the parties briefed their positions. The court heard oral
argument on July 9, 2020.
On July 13, 2020, the court, Cordani, J., issued its
memorandum of decision, in which it concluded that
the referee improperly rendered summary judgment
because Atos had not met its burden of establishing
that there were no genuine issues of material fact. The
court first noted that the plaintiff’s complaint is in the
form of an affidavit and constitutes competent counter
evidence in considering the motion for summary judg-
ment. The court considered the affidavits of the plaintiff
and of Hamilton and identified the following genuine
issues of material fact: whether (1) ‘‘the [plaintiff’s]
employment [was] terminated because of a reorganiza-
tion and her job [was] no longer . . . available as she
reported that she was told, or because she could not
perform an essential function of the job by being physi-
cally present in the office as . . . Hamilton stated’’; (2)
the job posting for the plaintiff’s position was actually
a mistake; (3) two new employees were training for the
plaintiff’s position at the time she was terminated; (4)
the plaintiff already had been granted an accommoda-
tion for working from home as she had claimed, and,
if yes, Atos was retracting a previously granted accom-
modation; (5) being physically present was an essential
job function given that the same job was performed by
people in the United States and in the Philippines, who
presumably coordinate with each other; (6) working
at home was a reasonable accommodation given the
requirements of the position; (7) the plaintiff could per-
form the essential job functions as she had asserted;
(8) it was a coincidence that the plaintiff’s managerial
position was allegedly eliminated in August, 2016, at
the same time she was making her accommodation
request, given that the offshoring of service desk posi-
tions had been ongoing for seven years; and (9) alleged
comments made by the plaintiff in text messages meant
that the plaintiff could not ‘‘ ‘learn new things daily and
maintain such knowledge.’ ’’ The court also identified
as a genuine issue of material fact what the essential
job functions were for the plaintiff’s position.
The court concluded that the referee’s decision con-
tained factual findings that were inappropriate in the
context of a motion for summary judgment. Specifically,
the court stated: ‘‘For instance, the [referee] found that
the [plaintiff] could not perform the essential functions
of her job in the face of the [plaintiff’s] sworn assertion
that she could and in the face of the fact that the [plain-
tiff] had already been performing her job from home
for some time. Each of the issues of material fact noted
by the court above have been either explicitly or implic-
itly decided against the [plaintiff] by the [referee] in
arriving at her final decision. The [referee] appears not
to have given any evidentiary weight to the [plaintiff’s]
affidavit/complaint, which is inappropriate in this sum-
mary judgment context.’’ Accordingly, the court sus-
tained the appeal and remanded the matter to the office
for a hearing. Thereafter, Atos filed the present appeal.
On appeal, Atos claims that the Superior Court erred
in sustaining the consolidated appeal. First, it argues
that the court erred in considering the plaintiff’s affida-
vit as competent counter evidence to Atos’ motion for
summary judgment. The plaintiff responds that ‘‘[a]ffi-
davits are competent counter evidence that a nonmov-
ing party may submit in opposition to a motion for
summary judgment.’’ We agree with the plaintiff.
We first set forth our standard of review. Our review
of the question of whether the Superior Court consid-
ered properly the plaintiff’s affidavit as competent evi-
dence in opposition to the motion for summary judg-
ment involves a question of law over which our review
is plenary. See Teodoro v. Bristol, 184 Conn. App. 363,
374–75, 195 A.3d 1 (2018) (issue of whether excerpt
from certified deposition transcript must be separately
certified as such, apart from certification of original
transcript from which it was excerpted, in order to
make it admissible in support of or in opposition to
motion for summary judgment is entitled to plenary
review).
Atos argues that the Superior Court’s determination
that the plaintiff’s affidavit, as a sworn statement, con-
stitutes competent counter evidence in considering a
motion for summary judgment is ‘‘devoid of any sup-
porting authority and is counter to controlling case
law.’’ The only authority cited by Atos, however, dis-
cusses the role of the pleadings in framing the issues
for summary judgment. See White v. Mazda Motor of
America, Inc., 313 Conn. 610, 621, 99 A.3d 1079 (2014)
(‘‘[t]he pleadings determine which facts are relevant and
frame the issues for summary judgment proceedings or
for trial’’); TD Bank, N.A. v. Salce, 175 Conn. App. 757,
768–69, 169 A.3d 317 (2017) (‘‘[I]t is not enough . . .
merely to assert the existence of such a disputed issue
. . . [instead] the genuine issue aspect requires the
party to bring forward before trial evidentiary facts,
or substantial evidence outside of the pleadings, from
which the material facts alleged in the pleadings can
warrantably be inferred. . . . Mere statements of legal
conclusions or that an issue of fact does exist are not
sufficient to raise the issue.’’ (Internal quotation marks
omitted.)).
The affidavit of discriminatory practice filed by the
plaintiff is unlike a civil complaint, in that it is sworn
and in the form of an affidavit. Affidavits are properly
considered pursuant to the rule of practice governing
summary judgment motions, Practice Book § 17-49,
which rule the referee expressly identified as governing
her adjudication of Atos’ motion. See Practice Book
§ 17-49 (‘‘[t]he judgment sought shall be rendered forth-
with 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’’ (emphasis added)); see
also Practice Book § 17-46 (‘‘[s]upporting and opposing
affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is compe-
tent to testify to the matters stated therein’’). Atos has
provided this court with no authority prohibiting con-
sideration, during summary judgment proceedings, of
attestations contained in a signed and notarized affida-
vit of illegal discriminatory practice. Accordingly, we
are not persuaded by Atos’ claim.
In the alternative, Atos argues that, even if the attesta-
tions of the plaintiff properly were considered, they
were insufficient to create genuine issues of material
fact. Specifically, it contends that the plaintiff’s affidavit
‘‘is conclusory, supported by nothing other than [the
plaintiff’s] rank speculation, and replete with irrelevant
and unsupported allegations.’’
Before addressing whether the record reveals genu-
ine issues of material fact, we turn to the interrelated
argument of Atos that the Superior Court erred in failing
to afford deference to the referee’s decision. It argues
that, ‘‘[i]n finding the complaint created genuine issues
of material fact warranting denial of Atos’ motion for
summary judgment, the Superior Court failed to provide
substantial deference to the [referee’s] findings as to
the impact of the complaint on the motion and merely
substituted its own judgment for that of the [referee].’’
It contends that the Superior Court ‘‘strayed well
beyond its ‘strictly limited’ and ‘very restricted’ role of
simply determining whether the [referee] acted ‘unrea-
sonably, arbitrarily, illegally or in abuse of [her] discre-
tion.’ ’’ We disagree with Atos’ claim.
We first set forth our own standard of review.
‘‘Determining the appropriate standard of review is a
question of law, and as a result, it is subject to plenary
review.’’ Crews v. Crews, 295 Conn. 153, 161, 989 A.2d
1060 (2010).
In rendering her decision, the referee cited the well
established standard for summary judgment set forth
in Practice Book § 17-49. ‘‘[Section] 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. . . .
‘‘In ruling on a motion for summary judgment, the
court’s function is not to decide issues of material fact
. . . but rather to determine whether any such issues
exist. . . . The courts hold the movant to a strict stan-
dard. To satisfy his burden the movant must make a
showing that it is quite clear what the truth is, and that
excludes any real doubt as to the existence of any
genuine issue of material fact. . . . Once the moving
party has met its burden [of production] . . . the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . [I]t [is] incumbent [on] the party opposing sum-
mary judgment to establish a factual predicate from
which it can be determined, as a matter of law, that a
genuine issue of material fact exists. . . . The presence
. . . of an alleged adverse claim is not sufficient to
defeat a motion for summary judgment.’’ (Citations
omitted; internal quotation marks omitted.) Episcopal
Church in the Diocese of Connecticut v. Gauss, 302
Conn. 408, 421–22, 28 A.3d 302 (2011), cert. denied, 567
U.S. 924, 132 S. Ct. 2773, 183 L. Ed. 2d 653 (2012).
Atos’ contention is that the Superior Court was obli-
gated to afford ‘‘considerable deference’’ to the referee’s
determination that there were no genuine issues of
material fact. In making this argument, Atos relies on
the substantial evidence rule governing judicial review
of administrative fact-finding under the Uniform Admin-
istrative Procedure Act (UAPA), General Statutes § 4-
166 et seq. It asserts that the referee had ‘‘a ‘substantial
basis of fact’ on which to make her ruling’’ and cites
Rajasekhar v. Commission on Human Rights & Oppor-
tunities, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S (January 14, 2020), for the
proposition that ‘‘[a] plaintiff who challenges an agency
decision has the heavy burden of demonstrating that
the department’s factual conclusion lacks substantial
support on the whole record.’’ (Emphasis added; inter-
nal quotation marks omitted.) In contrast with the pres-
ent summary judgment procedure, the factual findings
in Rajasekhar were made by an investigator following
a fact-finding hearing that involved sworn testimony
from the plaintiff and three representatives of the plain-
tiff’s former employer.4 Id.
We are not persuaded by Atos’ argument that the
deferential standard employed to review administrative
fact-finding extends to the determination of whether
genuine issues of material fact existed in the summary
judgment context. First, we note that, even with respect
to judicial review of administrative agency actions,
‘‘[c]ases that present pure questions of law . . . invoke
a broader standard of review than is . . . involved in
deciding whether, in light of the evidence, the agency
has acted unreasonably, arbitrarily, illegally or in abuse
of its discretion.’’ (Internal quotation marks omitted.)
Dept. of Public Safety v. Freedom of Information Com-
mission, 298 Conn. 703, 716, 6 A.3d 763 (2010). Second,
with respect to summary judgment in general, ‘‘[i]ssue-
finding, rather than issue-determination, is the key to
the procedure. . . . [T]he trial court does not sit as
the trier of fact when ruling on a motion for summary
judgment. . . . [Its] function is not to decide issues of
material fact, but rather to determine whether any such
issues exist.’’ (Internal quotation marks omitted.) Hos-
pital of Central Connecticut v. Neurosurgical Associ-
ates, P.C., 139 Conn. App. 778, 783, 57 A.3d 794 (2012);
see also Teodoro v. Bristol, supra, 184 Conn. App. 374
(‘‘[t]he court’s task in reviewing the parties’ submissions
is not to decide any factual issues they raise, but only
to decide if, in fact, they raise any such factual issues,
as by demonstrating a potential inconsistency or con-
flict in the admissible evidence concerning one or more
facts upon which the movant’s right to judgment
depends’’ (emphasis in original)).
Finally, it is axiomatic that a reviewing court con-
ducts a plenary review of the record, viewing the evi-
dence in the light most favorable to the nonmoving
party, to determine whether a genuine issue of material
fact exists such that summary judgment was improperly
rendered. See Windsor Federal Savings & Loan Assn.
v. Reliable Mechanical Contractors, LLC, 175 Conn.
App. 651, 660, 168 A.3d 586 (2017); Rivera v. CR Sum-
mer Hill, Ltd. Partnership, 170 Conn. App. 70, 76, 154
A.3d 55 (2017); Mott v. Wal-Mart Stores East, LP, 139
Conn. App. 618, 625, 57 A.3d 391 (2012). On the basis
of the foregoing legal principles, we conclude that the
deferential standard advocated by Atos does not apply
to the present case and that the Superior Court properly
conducted a plenary review of the record in considering
whether genuine issues of material fact existed.
Having resolved the issue of the Superior Court’s stan-
dardof review, we next consider Atos’ argument that
the Superior Court improperly determined that genuine
issues of material fact exist with respect to the plaintiff’s
claims. In accordance with the standard of review pre-
viously set forth, we conduct a plenary review of the
record. See Rivera v. CR Summer Hill, Ltd. Partner-
ship, supra, 170 Conn. App. 76.
With respect to the plaintiff’s discrimination and rea-
sonable accommodation claims, the referee concluded
that there were no genuine issues of material fact that
the plaintiff was unable to perform the essential duties
of her position and that a work from home accommoda-
tion was not reasonable. Specifically, the referee deter-
mined that Atos had made an affirmative evidentiary
showing that there was no factual dispute that the plain-
tiff’s essential job duties required her to be physically
present at the Cheshire office.5 Although Hamilton
averred as much, the plaintiff averred that she had
received the workplace accommodation of working
from home and that she had, shortly before her employ-
ment was terminated, provided additional documenta-
tion, at Atos’ request, in support of her ongoing work
from home accommodation. The plaintiff further
averred that she can perform the essential functions
of the job. On appeal, Atos states that permitting the
plaintiff to work from home permanently would be an
unreasonable accommodation. It states that it ‘‘should
not be punished, for exceeding its legal obligations by
permitting [the plaintiff] to initially work from home
in her new role.’’ (Emphasis added.) Thus, Atos appears
to acknowledge that the plaintiff worked from home
in her new role.
‘‘When the evidence in a summary judgment record
reasonably is susceptible to competing inferences, it is
improper for a trial court, in ruling on the summary
judgment motion, to choose among those inferences.’’
Doe v. West Hartford, 328 Conn. 172, 197–98, 177 A.3d
1128 (2018). Faced with competing affidavits, the ref-
eree improperly credited the statements contained in
Hamilton’s affidavit. See id., 197 (‘‘[w]hen deciding a
summary judgment motion, a trial court may not resolve
credibility questions raised by affidavits or deposition
testimony submitted by the parties’’). Thus, we agree
with the Superior Court that genuine issues of material
fact existed.
Moreover, we agree with the Superior Court that
there exists a genuine issue of material fact with respect
to the stated reasons for terminating the plaintiff’s
employment. The plaintiff averred that she was told
that her employment was terminated due to a reorgani-
zation, while Hamilton averred that he terminated her
employment because she could not perform the essen-
tial functions of the position. Rather than merely identi-
fying the factual dispute raised by the competing affida-
vits, the referee improperly decided the factual question
by crediting the statements made in Hamilton’s affida-
vit. See id.
Additionally, we note that the record lends support
to the plaintiff’s argument that Atos ‘‘has proffered two
different and contradictory explanations at different
times to explain its termination decision.’’ Atos con-
tends in its appellate brief that ‘‘[i]t has never been
alleged that [the plaintiff’s] termination was because
the service desk technician position was being elimi-
nated.’’ It argues that ‘‘[i]t was her prior managerial
position that was eliminated.’’ Our review of the record
reveals that, in the plaintiff’s affidavit, she averred that
Atos terminated her employment on October 17, 2016.
In its answer, Atos denied this averment as stated and
alleged that, ‘‘[o]n or about October 17, 2016, [the plain-
tiff’s] position was eliminated.’’ The plaintiff further
averred that Atos ‘‘told [her] that the termination was
due to a ‘reorganization’ and that her ‘job was no longer
available.’ ’’ Notably, in its answer, Atos admitted this
averment and further alleged that ‘‘[the plaintiff’s] posi-
tion was no longer needed in the [United States] due
to offshore activity.’’ Thus, Atos admitted having told
the plaintiff that her termination was due to a reorgani-
zation and that her job was no longer available. In sup-
port of Atos’ motion for summary judgment, however,
Hamilton averred that he terminated the plaintiff’s
employment because ‘‘she could not perform an essen-
tial function of her job—physically presenting for work
and she conceded she could not perform her duties.’’
The Superior Court concluded that the foregoing
issues, among others,6 constituted ‘‘genuine issues of
material fact that arise directly from the competing
affidavits of the [plaintiff] and . . . Hamilton. These
issues go to the very heart of the discrimination and
retaliation claims. The [referee’s] decision clearly con-
tains factual findings by the [referee] that are not appro-
priate in the context of a motion for summary judg-
ment.’’ We agree with the Superior Court. Faced with
competing averments on the issues of the essential func-
tions of the job, reasonable accommodations, and the
reason for the termination of the plaintiff’s employment,
the referee erred in determining that there were no
genuine issues of material fact. Thus, summary judg-
ment was not properly rendered.
Lastly, Atos argues that the Superior Court improp-
erly ‘‘based its reversal on factual arguments neither
party raised . . . .’’ Specifically, it argues that the plain-
tiff and the commission both objected to summary judg-
ment with ‘‘purely procedural arguments’’ and ‘‘neither
objection makes any reference whatsoever to the sub-
stance of [the plaintiff’s] complaint nor do the objec-
tions set forth any allegedly disputed facts.’’ We dis-
agree that the court erred in determining whether
genuine issues of material fact should have precluded
summary judgment. Although the commission’s objec-
tion focused exclusively on the referee’s authority to
render summary judgment, the plaintiff’s objection
included an argument that the early legal intervention
decision to send the matter directly to a public hearing
necessarily meant that there had been established the
existence of genuine issues of material fact. Moreover,
it is undisputed that the referee considered the sub-
stance of the plaintiff’s affidavit in deciding the sum-
mary judgment motion. The referee expressly stated
that she had ‘‘view[ed] the complaint and the submitted
evidentiary materials in the light most favorable to the
[plaintiff] . . . .’’ Accordingly, the Superior Court did
not err in considering whether genuine issues of mate-
rial fact existed.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its memorandum of decision, the Superior Court stated: ‘‘Because the
court finds that [Atos] has clearly not met its burden of establishing that
no genuine issues of material fact exist and this finding is determinative of
the appeal, the court has not decided the general issue of whether or not
a [referee] in a public hearing context [before the commission] has the
ability to grant a motion for summary judgment in any circumstance.’’
The commission’s brief filed with this court is limited to arguing that
‘‘[t]his court should affirm the decision of the Superior Court on the alterna-
t[ive] ground that the [referee] is not authorized to dispose of complaints
at [a] public hearing through summary judgment.’’ The commission states:
‘‘In doing so, the court need not reach the arguments raised by Atos on
appeal, or otherwise address the merits of the summary judgment motion
itself.’’
The state of Connecticut has, pursuant to Practice Book § 67-7, filed an
amicus curiae brief in the present matter arguing that the referee has the
authority to grant motions for summary judgment as a means of disposing
of meritless complaints at a public hearing. The state did not participate in
oral argument.
We conclude that the Superior Court correctly sustained the appeal on
the basis that the referee improperly rendered summary judgment because
there existed genuine issues of material fact. Accordingly, we decline to
reach the alternative ground for affirmance raised by the commission and
need not address the argument contained in the state’s amicus brief.
2
Because Atos’ claims are interrelated, we consider them together.
3
Onderick averred that she assisted the plaintiff with multiple requests
for FMLA leave and accommodations starting in 2015, and ending in late
2015. Onderick averred: ‘‘Specifically, in October, 2015, [the plaintiff]
requested and was granted intermittent FMLA leave. . . . From October,
2015 through June, 2016, Atos granted intermittent leave to [the plaintiff]
each time it was requested. . . . In June, 2016, [the plaintiff] requested
approximately three months of continuous FMLA leave from June 13 through
September 8, 2016. A true and correct copy of the record showing the request
for continuous leave is attached as [e]xhibit 1. . . . However, based on her
prior intermittent FMLA leave, [the plaintiff] was only eligible for FMLA
leave through August 9, 2016. Yet, as an accommodation, Atos approved
the entirety of the requested continuous leave through September 8, 2016,
despite the fact that she was not eligible for it after August 9, 2016. . . .
After her continuous FMLA leave from June 13 through September 8, 2016,
[the plaintiff] requested another year of intermittent FMLA leave, this time
requesting leave from September 20, 2016 through September 20, 2017. The
request was denied due to lack of paperwork from her physician. A true
and correct copy of the record showing the requested leave is attached as
[e]xhibit 2. . . . She additionally asked to be permitted to work from home
despite her physician advising that her only restriction was limited driving
distances. A true and correct copy of the record showing that requested
accommodation is attached as [e]xhibit 3. . . . After numerous communica-
tions between [the plaintiff] and Atos’ human resources department, [the
plaintiff] submitted revised physician paperwork on October 9, 2016, indicat-
ing a permanent [work from home] restriction. A true and correct copy of
the record showing that requested accommodation is attached as [e]xhibit 4.’’
4
Atos also cites Barnes v. Premier Education Group, LP, Superior Court,
judicial district of New Britain, Docket No. CV-XX-XXXXXXX-S (April 7, 2017).
Unlike the present case, the decision in Barnes was rendered following
a fact-finding conference during which both parties presented evidence,
including witness testimony. Id.
5
The referee also concluded that, ‘‘[b]y her own admission, the [plaintiff’s]
ability to perform her job duties was impaired as a result of her short-term
memory loss due to the medications she was taking for bipolar disorder
and anxiety.’’ The only evidence the referee identified in support of this
conclusion consisted of the July, 2016 text messages. We agree with the
Superior Court that there existed a genuine issue of material fact in light
of the plaintiff’s sworn assertion that she could perform the essential func-
tions of the job.
6
We need not consider the other issues the Superior Court identified as
genuine issues of material fact.