Lassen v. Hartford

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ALFRED LASSEN v. CITY OF HARTFORD
(AC 45802)
Cradle, Clark and Vertefeuille, Js.

Syllabus

The plaintiff, whose prior employment as a police officer with the defendant
city of Hartford had been terminated, sought to recover damages from
the city for, inter alia, its failure to rehire him as a police officer because
of his disability, narcolepsy. The city had posted a job listing seeking
applications from nonresidents of Hartford for a police officer position.
Applicants were required to apply online and to include with their appli-
cations a ‘‘CHIP’’ card signifying that they had successfully completed
certain physical ability tests required of police officer candidates. The
plaintiff, who was not a resident of Hartford, was among fifty-two appli-
cants who did not submit a CHIP card with their applications and, thus,
was determined by the city to be unqualified for the police officer
position. In a two count complaint alleging violations of a provision
(§ 46a-60) of the Connecticut Fair Employment Practices Act (§ 46a-51
et seq.), the plaintiff claimed that the city had discriminated against
him on the basis of his disability and retaliated against him for having
previously brought a lawsuit against the city in connection with the
termination of his prior employment as a police officer. The city, which
was aware at the time the plaintiff applied for the police officer position
that he had been diagnosed with narcolepsy, moved for summary judg-
ment, asserting that no genuine issue of material fact existed as to both
counts of the plaintiff’s complaint and that it was therefore entitled to
judgment as a matter of law. The court granted the city’s motion, conclud-
ing that there was no genuine issue of material fact that the plaintiff had
failed to establish a prima facie case of either disability discrimination
or retaliation and that, even if he had established a prima facie case as
to those claims, summary judgment was warranted on both counts
because the city had articulated a legitimate, nondiscriminatory and
nonretaliatory reason for its decision not to rehire the plaintiff, namely,
his failure to submit the required CHIP card with his application, which
he thereafter failed to establish was pretextual. On the plaintiff’s appeal
to this court, held that the trial court properly rendered summary judg-
ment for the city: the undisputed evidence in the record established
that the sole reason for the city’s decision not to rehire the plaintiff was
his failure to submit a CHIP card with his job application and, although
the plaintiff claimed that a genuine issue of material fact existed as to
whether the city’s reason was pretextual because the job application
did not identify a CHIP card as a document that needed to be submitted
with the job application, whereas the job posting listed the CHIP card
as a document required to be submitted with the job application, it
would have been purely speculative for this court to infer from that
inconsistency that the city was motivated to discriminate or retaliate
against the plaintiff when that circumstance would have had the same
effect on all applicants; moreover, the plaintiff did not provide any
evidence to contradict the city’s evidence that the city had conducted
a screening process after which applicants, including the plaintiff, who
had failed to submit CHIP cards with their applications were eliminated
from consideration and not hired, nor did the plaintiff provide evidence
of any connection between the city’s determination that he was unquali-
fied for the police officer position and his medical diagnosis or with
his having previously filed suit against the city in connection with its
termination of his prior employment as a police officer; furthermore,
the plaintiff’s disagreement with the city’s requirement that he submit
a CHIP card with his application was immaterial and did not render the
city’s reason for not rehiring him pretextual, there having been no genu-
ine issue of material fact that all applicants were required to submit a
CHIP card, regardless of whether they were certified police officers.
Argued October 2, 2023—officially released January 9, 2024

Procedural History
Action to recover damages for, inter alia, alleged dis-
ability discrimination, and for other relief, brought to
the Superior Court in the judicial district of Hartford,
where the court, Sheridan, J., granted the defendant’s
motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
James V. Sabatini, for the appellant (plaintiff).
Alexandria L. Voccio, with whom, on the brief, were
David S. Monastersky and Channez M. Rogers, for the
appellee (defendant).
Opinion

VERTEFEUILLE, J. The plaintiff, Alfred Lassen,
appeals from the summary judgment rendered by the
trial court in favor of the defendant, the city of Hartford,
on his two count complaint, alleging disability discrimi-
nation and retaliation in violation of General Statutes
§ 46a-60 of the Connecticut Fair Employment Practices
Act (act), General Statutes § 46a-51 et seq., in connec-
tion with the defendant’s failure to rehire him as a police
officer. On appeal, the plaintiff claims that the court
erred in rendering summary judgment in favor of the
defendant because it improperly concluded that no gen-
uine issue of material fact existed as to whether (1) the
plaintiff had failed to make out a prima facie case of
disability discrimination and retaliation, and (2) the
defendant’s proffered legitimate, nondiscriminatory
reason for not rehiring1 him was pretextual. For the
reasons that follow, we disagree and, accordingly,
affirm the judgment of the trial court.
The following facts, which are undisputed, and proce-
dural history are relevant to our resolution of this
appeal. The defendant published a job posting for the
position of Hartford police officer for persons who were
not residents of Hartford. The plaintiff was not a resi-
dent of Hartford at the time he filed his application.
The job posting required all applicants to submit their
applications online through the PoliceApp web portal.
The plaintiff applied for the position online as required.
At the time he applied for the position, the plaintiff had
been diagnosed with narcolepsy, and the defendant was
aware of this diagnosis. A lawsuit was already pending
in which he made multiple claims against the defendant,
including disability discrimination, failure to provide a
reasonable accommodation, and retaliation for having
requested a reasonable accommodation in connection
with the defendant’s termination of his previous
employment as a Hartford police officer.
The defendant engaged in a screening process of
all the applications it received for the Hartford police
officer position wherein an initial review and a second
review were conducted by administrative clerks from
the defendant’s Human Resources Department. During
this screening process, applicants who did not submit
with their applications a valid Complete Health & Injury
Prevention physical ability assessment (CHIP card)2
were eliminated from consideration for the position. As
a result of this screening process, fifty-two applicants,
including the plaintiff, were neither considered nor
hired for the position because they had failed to submit
the required CHIP card with their applications.
The plaintiff brought suit and filed a two count com-
plaint alleging that the defendant, in violation of § 46a-
60, failed to rehire him as a police officer because of
his narcolepsy diagnosis (disability discrimination) and
because he previously had filed a lawsuit against the
defendant (retaliation).3 The defendant thereafter filed
a motion for summary judgment, arguing that no genu-
ine issue of material fact existed and that it was entitled
to judgment as a matter of law on both claims of the
plaintiff’s complaint. The plaintiff filed an opposition
to the defendant’s motion for summary judgment. The
court granted the defendant’s motion for summary judg-
ment on the ground that there existed no genuine issues
of material fact that the plaintiff had failed to establish
a prima facie case of either disability discrimination or
retaliation. The court additionally determined that, even
if it had assumed arguendo that the plaintiff had estab-
lished a prima facie case of disability discrimination
and retaliation, summary judgment was warranted as
to both counts of the complaint because the defendant
had offered a legitimate, nondiscriminatory reason for
its decision not to rehire the plaintiff, specifically, that
the plaintiff had failed to submit the required CHIP
card with his application and that no genuine issue of
material fact existed as to whether the plaintiff had
failed to establish that the defendant’s proffered reason
was pretextual. This appeal followed.
We begin by setting forth the applicable standard of
review. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides that summary judgment 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. . . . 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 seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact.’’ (Internal
quotation marks omitted.) DiPietro v. Farmington
Sports Arena, LLC, 306 Conn. 107, 115–16, 49 A.3d 951
(2012). The standard of review of a trial court’s decision
granting a motion for summary judgment is plenary.
Id., 116.
The standard applicable to the plaintiff’s claim of
disability discrimination, which is based on disparate
treatment, and retaliation is the McDonnell Douglas-
Burdine4 model of analysis. See Taing v. CAMRAC,
LLC, 189 Conn. App. 23, 27–28, 206 A.3d 194 (2019)
(discussing applicability of McDonnell Douglas-Bur-
dine model to disparate treatment discrimination
claims); Luth v. OEM Controls, Inc., judicial district of
Ansonia-Milford, Docket No. CV-XX-XXXXXXX-S (Decem-
ber 6, 2019) (reprinted at 203 Conn. App. 680, 252 A.3d
413) (discussing applicability of McDonnell Douglas-
Burdine model to retaliation claims under act), aff’d,
203 Conn. App. 673, 252 A.3d 406 (2021). Under this
framework, the plaintiff first must establish a prima
facie case,5 then the burden of production shifts to the
defendant to rebut the presumption of discrimination
by articulating a legitimate, nondiscriminatory reason
for its employment decision. Tomick v. United Parcel
Service, Inc., 157 Conn. App. 312, 327, 115 A.3d 1143
(2015), aff’d, 324 Conn. 470, 153 A.3d 615 (2016). Once
the defendant offers a legitimate, nondiscriminatory
reason, then the plaintiff has the burden to prove by a
preponderance of the evidence that the proffered rea-
son is pretextual. Id.
In the present case, the plaintiff challenges the propri-
ety of the court’s determinations that no genuine issues
of material fact existed with respect to his failure to
make out a prima facie case of disability discrimination
and retaliation and that the defendant’s employment
decision was based on a nonpretextual, legitimate, non-
discriminatory reason. We conclude that, even if we
were to assume without deciding, that the plaintiff had
established a prima facie case of disability discrimina-
tion and retaliation, the court correctly concluded that
there was no genuine issue of material fact that the
defendant’s proffered legitimate nondiscriminatory and
nonretaliatory reason for failing to rehire the plaintiff
was not pretextual.6
The reason stated by the defendant in its memoran-
dum of law appended to its motion for summary judg-
ment for not rehiring the plaintiff was that he did not
pass the defendant’s initial screening process because
he failed to submit the required CHIP card with his
application. In moving for summary judgment, the
defendant submitted uncontroverted documentary evi-
dence to substantiate that it had engaged in a screening
process wherein all applicants who failed to submit a
CHIP card with their application were denied consider-
ation for the position. Specifically, in an affidavit
attached to the defendant’s motion for summary judg-
ment, Debra C. Carabillo, the Deputy Director of Human
Resources and Labor Relations with the defendant,
averred that an initial screening process of applicants
who had responded to the defendant’s publication of
a job posting for a police officer position for persons
who were not residents of Hartford was conducted by
a human resources administrative clerk, an employee
of the defendant, to determine whether each applicant
had submitted all of the required documentation as set
forth in the job posting to establish that the applicant
met the age, citizenship, education, driver’s license, and
physical ability testing (CHIP card) qualifications. If an
applicant did not submit any of the required documenta-
tion, then the applicant was designated as ‘‘unqualified,’’
and, if an applicant submitted all of the required docu-
mentation, then the applicant was designated as ‘‘quali-
fied.’’ She further stated that Brenda Perez, an adminis-
trative clerk with the defendant, reviewed the
applications for a second time to confirm the designa-
tions for applicants as either qualified or unqualified
based on whether they had submitted with their job
application all of the required documentation. Carabillo
also stated that no other factors were taken into consid-
eration during this screening of applications and that
the plaintiff ‘‘was deemed to not meet the minimum
requirements for the position solely due to his failure
to provide a copy of a valid CHIP card, proving that
he has passed the CHIP Physical Ability Assessment
required for all applicants under the job posting . . . .’’
Also attached to the defendant’s motion for summary
judgment was an internal document of the defendant
listing the names of all fifty-two applicants who did not
submit a CHIP card with their application and their
resultant designation as unqualified for the position.
We conclude that the defendant satisfied its summary
judgment burden of articulating a legitimate, nondis-
criminatory reason for not rehiring the plaintiff. See
Feliciano v. Autozone, Inc., 316 Conn. 65, 74, 111 A.3d
453 (2015) (to rebut presumption created by prima facie
case, employer must articulate legitimate nondiscrimi-
natory reason, and ‘‘[t]his burden is one of production,
not persuasion; it can involve no credibility assessment’’
(internal quotation marks omitted)).
Because the defendant articulated a nondiscrimina-
tory and nonretaliatory reason for its employment deci-
sion, the burden shifted to the plaintiff to establish a
genuine issue of material fact with respect to whether
the defendant’s stated reason was a pretext for discrimi-
nation and/or retaliation. See Tomick v. United Parcel
Service, Inc., supra, 157 Conn. App. 327.
‘‘[T]o defeat summary judgment . . . the plaintiff is
not required to show that the employer’s proffered rea-
sons were false or played no role in the employment
decision, but only that they were not the only reasons
and that the prohibited factor was at least one of the
motivating factors. . . . A plaintiff may show pretext
by demonstrating such weaknesses, implausibilities,
inconsistencies, incoherences, or contradictions in the
employer’s proffered legitimate reasons for its action
that a reasonable [fact finder] could rationally find them
unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory rea-
sons.’’ (Citation omitted; internal quotation marks omit-
ted.) Stubbs v. ICare Management, LLC, 198 Conn. App.
511, 522–23, 233 A.3d 1170 (2020).
The plaintiff does not dispute that he did not submit
a CHIP card with his application. Rather, he argues that
the court erred in determining that he had failed to
offer any evidence creating a genuine issue of material
fact as to whether the defendant’s proffered reason for
not rehiring him was a pretext for discriminatory and/
or retaliatory intent. Specifically, he contends that the
‘‘[t]he job application did not identify the CHIP card
as a document that needed to be submitted. The job
application asked the applicant to identify if he was
presently a Connecticut certified police officer,’’ and
that ‘‘[h]is job application stated he was employed by
the defendant as a police officer from December 14,
2009, through March 4, 2016.’’ He further argues that a
‘‘presently certified Connecticut police officer already
possesses the qualification to immediately begin work-
ing as a police officer. Therefore, the CHIP card was
irrelevant. The defendant cited to the fact that every
applicant for the job who failed to submit a CHIP card
did not pass the initial screening of applications. Tell-
ingly, the defendant failed to disclose whether any of the
other rejected applicants were certified police officers.’’
The two reasons presented by the plaintiff to support
his contention that there is a genuine issue of material
fact as to whether the defendant’s reason for its employ-
ment decision not to rehire him was pretextual—specif-
ically, that the job application did not identify a CHIP
card as a required document and that for presently
certified Connecticut police officers a CHIP card was
irrelevant—are not persuasive. His first reason high-
lights the fact that the job application, which the defen-
dant attached to its motion for summary judgment, did
not identify a CHIP card as a document that needed to
be submitted online with the job application.7 We note
that the job application is inconsistent in this respect
with the job posting, which clearly lists a CHIP card
as a document required to be submitted with the job
application.8 This apparent inconsistency in the applica-
tion process may have resulted in some applicants, such
as the plaintiff, not submitting a CHIP card with their
job application due to a belief that such documentation
was not required and, as a result, being eliminated from
consideration for the position and not hired. Although
the plaintiff may have highlighted inconsistencies in the
job application process and a possible failure on the
part of the defendant to communicate effectively to
applicants what it considered the minimum job require-
ments to be, it is purely speculative for us to infer from
this circumstance, which would have the same effect
on all applicants, a motivation on the part of the defen-
dant to discriminate and/or retaliate against the plain-
tiff.9 See Agosto v. Premier Maintenance, Inc., 185
Conn. App. 559, 569–70, 197 A.3d 938 (2018) (‘‘[a]lthough
the court must view the inferences to be drawn from
the facts in the light most favorable to the party oppos-
ing the motion . . . a party may not rely on mere specu-
lation or conjecture as to the true nature of the facts
to overcome a motion for summary judgment’’ (internal
quotation marks omitted)).
The plaintiff has provided no evidence contradicting
the evidence submitted by the defendant that the sole
reason that it did not rehire the plaintiff was that it had
conducted a screening process whereby all applicants,
including the plaintiff, who failed to submit CHIP cards
with their applications were eliminated from consider-
ation for the position and not hired. The plaintiff
attached to his opposition to summary judgment his
affidavit in which he stated that the job application did
not identify a CHIP card as a document that was
required to be submitted online with the application
and that he was unaware that a CHIP card was required
because he was a certified Connecticut police officer,
which meant that he was able to work immediately as
a police officer. He did not provide evidence of any
connection whatsoever between the defendant’s deci-
sion to eliminate from consideration applicants who
did not submit a CHIP card with their application and
his medical diagnosis or his having filed suit against
the defendant. See Luth v. OEM Controls, Inc., supra,
203 Conn. App. 689 (‘‘[e]ven on a motion for summary
judgment, the plaintiff must present some factual basis
to support [his] claims and cannot rely solely on naked
claims or arguments unsupported by any actual evi-
dence or at least some evidence from which reasonable,
supportive inferences may be made’’).
The plaintiff’s second reason, in which he expresses
disagreement with the relevance of the defendant’s hir-
ing standards and deems the submission of a CHIP card
to be redundant, is not material. See, e.g., Watkins v.
East Haven, Docket No. CV-XX-XXXXXXX-S, 2008 WL
344711, *3 (Conn. Super. January 24, 2008) (‘‘[w]hile
the plaintiff has a right to wonder why such a position
would require a [twelfth] grade education, it is not for
this court to rewrite the job description based on the
plaintiff’s conception of the job and its requirements’’).
Whether currently certified police officers should have
to comply with the CHIP card requirement does not
raise an inference of discriminatory or retaliatory intent
because the defendant had the CHIP card requirement
for all applicants.
Significantly, no genuine issue of material fact exists
that the defendant applied the same CHIP card standard
to all applicants and thereby removed from consider-
ation in total fifty-two applicants who, like the plaintiff,
did not submit a CHIP card with their applications. The
undisputed evidence in the record establishes that the
sole reason for the defendant’s decision not to rehire
the plaintiff was his failure to submit a CHIP card with
his job application. For the foregoing reasons, we con-
clude that the trial court properly rendered summary
judgment in favor of the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff previously had been employed with the defendant as a
police officer from December, 2009, to March, 2016. He responded to a June,
2018, job posting by the defendant for a police officer position for persons
who were not residents of Hartford, but he was not hired for the position.
2
CHIP (Complete Health & Injury Prevention) administers the Police
Physical Ability Assessment, also known as Physical Fitness Tests, and,
upon successful completion, candidates receive a CHIP card, which is valid
for a six month period and is accepted by participating departments. The
defendant utilizes CHIP to administer police physical agility tests for appli-
cants.
3
According to General Statutes § 46a-60 (b), it is a discriminatory practice
‘‘(1) For an employer . . . to refuse to hire or employ . . . any individual
. . . because of the individual’s . . . physical disability [or] (4) [f]or any
. . . employer . . . to discharge, expel or otherwise discriminate against
any person because such person has opposed any discriminatory employ-
ment practice or because such person has filed a complaint or testified or
assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . . .’’
4
See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252–56,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–804, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
5
To establish a prima facie case of discrimination, an employee plaintiff
must show that ‘‘(1) [he] is a member of a protected class; (2) [he] was
qualified for the position; (3) [he] suffered an adverse employment action;
and (4) the adverse employment action occurred under circumstances that
give rise to an inference of discrimination.’’ (Internal quotation marks omit-
ted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015).
To establish a prima facie case of retaliation, a plaintiff must show ‘‘(1)
that he participated in a protected activity; (2) that the defendant knew of
the protected activity; (3) an adverse employment action against him; and
(4) a causal connection between the protected activity and the adverse
employment action.’’ Ayantola v. Board of Trustees of Technical Colleges,
116 Conn. App. 531, 536, 976 A.2d 784 (2009).
6
‘‘Because [s]ummary judgment is appropriate where no genuine issue
of material fact exists, and the defendant is entitled to judgment as a matter
of law, with respect to any one element that the plaintiff is required to prove
in order to prevail at trial . . . an appellate court need not address every
basis articulated by a trial court in rendering summary judgment.’’ (Citations
omitted; internal quotation marks omitted.) Alvarez v. Middletown, 192
Conn. App. 606, 611 n.2, 218 A.3d 124, cert. denied, 333 Conn. 936, 218 A.3d
594 (2019). Accordingly, because we agree with the trial court that the
plaintiff has not demonstrated the existence of a genuine issue of material
fact as to whether the defendant’s justification for its failure to rehire him
was merely a pretext for discrimination and/or retaliation, we need not
address the question of whether a genuine issue of material fact exists
regarding the plaintiff’s establishment of a prima facie case of discrimination
and/or retaliation. See id.
7
The job application, under a section titled ‘‘required documents for sub-
mission,’’ states, ‘‘PLEASE NOTE: YOU MUST HAVE ALL REQUIRED DOCU-
MENTS IN BY APRIL 1, 2019. IF REQUIRED DOCUMENTS ARE NOT SUB-
MITTED, YOU WILL NOT BE ABLE TO PROCEED TO THE WRITTEN
EXAMINATION! By selecting ‘YES,’ I understand the above and that I must
have all required documents submitted by April 1, 2019 or I will not be able
to proceed to the Written Examination.’’ The application then states that
‘‘A COPY OF YOUR HIGH SCHOOL DIPLOMA, GED CERTIFICATE OR
TRANSCRIPT MUST BE SUBMITTED WITH THE APPLICATION,’’ provides
a space for such document to be submitted electronically and then states:
‘‘A valid driver’s license is required. A COPY OF THE LICENSE MUST BE
SUBMITTED WITH THE APPLICATION’’ and provides a space to submit
such documentation electronically. The application does not include a
prompt to attach a CHIP card and does not identify a valid CHIP card as
a document that needed to be uploaded with the application.
8
The job posting is titled ‘‘Police Officer (Non-Hartford Residents).’’ The
job posting states that the position was ‘‘[o]pen to all Hartford residents
who meet the following qualifications,’’ and proceeds to list items, including
the submission of a CHIP card. Although the job posting contains an internal
discrepancy as to the residency requirement of applicants, it is uncontested
that the plaintiff, who was not a resident of Hartford, was able to apply for
the position.
9
There need only exist no genuine issue of material fact that the defen-
dant’s decision not to rehire the plaintiff was not motivated by a discrimina-
tory and/or retaliatory intent. See Craine v. Trinity College, 259 Conn.
625, 643 n.12, 791 A.2d 518 (2002) (noting unusual circumstance wherein
defendant’s stated reason for employment decision constituted both breach
of contract and nondiscriminatory reason for employment decision).