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*********************************************** 
LANA ROSSOVA v. CHARTER

COMMUNICATIONS, LLC

(AC 43153)

Alexander, Clark and Palmer, Js.

Syllabus

The plaintiff sought to recover damages for the alleged wrongful termination

of her employment by the defendant, which she claimed was the result

of pregnancy discrimination in violation of the Connecticut Fair Employment Practices Act (§ 46a-51 et seq.). The defendant hired the plaintiff

to work in its brand and creative strategy department. S, the only other

employee in the department, was her supervisor. According to the plaintiff, the two had a good working relationship through the end of her

first month of employment, when the plaintiff informed S that she was

pregnant. Thereafter, the relationship deteriorated. According to the

plaintiff, S no longer invited her to collaborate on projects, became curt

and unfriendly, and began to micromanage and criticize her work. S

also started to document the plaintiff’s alleged performance deficiencies.

Less than five weeks after the plaintiff disclosed her pregnancy, S

informed the plaintiff that her employment was being terminated for

her poor performance. Following a trial to the jury, the jury returned

a verdict in favor of the plaintiff on the issue of liability. Thereafter, the

trial court denied the defendant’s motion for judgment notwithstanding

the verdict and awarded the plaintiff economic damages in addition to

prejudgment interest, postjudgment interest, and attorney’s fees. On

appeal to this court, the defendant challenged only one element of the

plaintiff’s prima facie case, namely, whether she established that the

termination of her employment occurred under circumstances that gave

rise to an inference of discrimination. Held:

1. The trial court properly denied the defendant’s motion for judgment

notwithstanding the verdict:

a. The plaintiff satisfied her initial burden of establishing a prima facie

case of discrimination: there was sufficient evidence in the record from

which a rational fact finder could have inferred that the termination of

the plaintiff’s employment was motivated by discriminatory bias based

on her pregnancy, including evidence of the change in the working

environment and in the relationship between the plaintiff and S following

the plaintiff’s disclosure of her pregnancy.

b. There was sufficient evidence from which the jury reasonably could

have found that the defendant’s stated reason for the termination of the

plaintiff’s employment was pretextual and that the defendant intentionally discriminated against the plaintiff on the basis of her pregnancy:

evidence in the record supported the plaintiff’s claims of a drastic change

in the work environment and the working relationship between the

plaintiff and S following the plaintiff’s disclosure of her pregnancy and

there was a lack of documentary evidence of the plaintiff’s allegedly

defective performance prior to her disclosure, with the exception of a

single e-mail, which the jury reasonably could have determined was

of little to no consequence when juxtaposed against the considerable

evidence supporting the plaintiff’s contention that her disclosure marked

a dramatic shift in work environment; moreover, pursuant to the United

States Supreme Court’s holding in Reeves v. Sanderson Plumbing Products, Inc. (530 U.S. 133), the jury was permitted to infer the ultimate

fact of intentional discrimination on the basis of the inferences reasonably drawn from the evidence establishing the plaintiff’s prima facie

case and rebutting the defendant’s nondiscriminatory explanation for

the termination of the plaintiff’s employment; furthermore, contrary to

the defendant’s assertion, the plaintiff did not rely solely on evidence

of the temporal proximity of the disclosure of her pregnancy to her

dismissal to establish her claim, as other evidence, even though not

overwhelming, was sufficient when viewed in the light most favorable

to sustaining the verdict for the jury to have inferred that the defendant’s

nondiscriminatory reason was pretextual and that the termination of the

plaintiff’s employment was actually motivated by intentional discrimina-
tion.

2. The trial court’s assessment of the plaintiff’s damages was not clearly

erroneous: the trial court determined that the defendant proved that

the plaintiff had failed to mitigate her damages for only seventeen of

the fifty-two months that she was unemployed on the basis of all of the

evidence before it and, contrary to the defendant’s claim, did not rely

solely on documentary evidence or the lack thereof; moreover, the

burden was on the defendant to prove that suitable work existed and

that the plaintiff did not exercise reasonable diligence to obtain employment, and the trial court found that the testimony of the defendant’s

expert regarding such matters was entitled to little weight.

Argued November 10, 2021—officially released April 12, 2022

Procedural History

Action to recover damages for, inter alia, alleged

employment discrimination, and for other relief,

brought to the Superior Court in the judicial district of

Stamford-Norwalk and tried to the jury before Povodator, J.; verdict for the plaintiff; thereafter, the court,

Povodator, J., denied the defendant’s motion for judgment notwithstanding the verdict; subsequently, the

court, Hon. Kenneth B. Povodator, judge trial referee,

rendered judgment in accordance with the verdict and

awarded the plaintiff compensatory damages, prejudgment and postjudgment interest and attorney’s fees,

from which the defendant appealed to this court.

Affirmed.

Proloy K. Das, with whom were Patricia E. Reilly

and Lorey Rives Leddy, for the appellant (defendant).

John M. Walsh, Jr., for the appellee (plaintiff).
Opinion

CLARK, J. The defendant, Charter Communications,

LLC, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Lana

Rossova. The plaintiff brought this action alleging pregnancy discrimination in violation of the Connecticut

Fair Employment Practices Act, General Statutes § 46a51 et seq., after the defendant terminated her employment.1 On appeal, the defendant claims that the court

(1) improperly denied its motion for judgment notwithstanding the verdict because the plaintiff failed to establish a prima facie case of pregnancy discrimination and

that the defendant’s reason for terminating her employment was a pretext for discrimination against her on

the basis of her pregnancy and (2) miscalculated the

plaintiff’s damages. We disagree with the defendant’s

claims and, accordingly, affirm the judgment of the

court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. In February, 2013, the defendant hired the plaintiff as a senior manager of digital marketing at its Stamford location. Per the defendant’s policy, all new

employees must successfully complete a ninety day

probationary period. The plaintiff began her employment with the defendant on March 4, 2013, and worked

directly for the director of the brand and creative strategy department, Jennifer Smith. The plaintiff and Smith

were the only two employees in the department. Smith

hired the plaintiff to fill a newly created position with

the expectation that the plaintiff would improve communications between their department and the digital

marketing team and make recommendations to

increase sales.

According to the plaintiff, she and Smith had a great

relationship during the first few weeks of her employment and had become friends. Smith invited the plaintiff

to her office to collaborate on projects and brainstorm

ideas on a daily basis. They sometimes spent one half

of the day working together in Smith’s office and ate

lunch together. On March 29, 2013, the plaintiff told

Smith that she was pregnant. Smith was happy for the

plaintiff and shared that, coincidentally, she was also

pregnant. Smith thereafter instructed the plaintiff to

speak with the human resources manager, Karina Patel,

to complete paperwork to start the process of finding

a substitute for the plaintiff while she was on maternity

leave. When speaking with Patel, the plaintiff inquired

as to whether she would be able to work from home

if she experienced complications related to her pregnancy. The plaintiff previously had experienced a highrisk pregnancy, which required her to be on bed rest

for more than two months, and her physician had

warned that she would encounter similar complications

in subsequent pregnancies. Patel informed the plaintiff
that, for liability reasons, she would not be permitted

to work from home and then discussed the plaintiff’s

eligibility for leave.

A few days after informing Smith that she was pregnant, the relationship between the plaintiff and Smith

deteriorated. Smith became less cordial than she had

been prior to learning that the plaintiff was pregnant.

When interacting with the plaintiff following the disclosure, Smith was curt and unfriendly. Although Smith

still met with the plaintiff, she no longer invited the

plaintiff into her office to brainstorm or collaborate on

projects. According to the plaintiff, Smith never

expressed concerns about the plaintiff’s performance

in the first month of her employment but began to

micromanage her and criticize the quality of her work

after the plaintiff disclosed her pregnancy. The plaintiff

acknowledged that she had made some mistakes in her

work but claimed that Smith never expressed dissatisfaction with the plaintiff’s overall performance or communicated that her employment was in jeopardy of

being terminated. On May 2, 2013, fewer than five weeks

after the plaintiff disclosed her pregnancy, Smith

informed the plaintiff that her employment was being

terminated for poor performance. Smith did not elaborate on the reasons supporting her decision to terminate

the plaintiff’s employment or provide the plaintiff with

any documents explaining her alleged performance

deficiencies.

On September 20, 2013, the plaintiff filed a discrimination complaint with the Commission on Human Rights

and Opportunities (commission). On October 21, 2014,

after receiving a release of jurisdiction from the commission, the plaintiff commenced the present action,

alleging that the defendant unlawfully had terminated

her employment on the basis of pregnancy, in violation

of General Statutes § 46a-60 (b) (7) (A).2 The parties

agreed to bifurcate the issues of liability and damages

at trial. The issue of liability was tried to a jury on

December 6 and 7, 2016. Following the plaintiff’s casein-chief, the defendant moved for a directed verdict on

the ground that the plaintiff had failed to establish a

prima facie case of pregnancy discrimination. The court

reserved its decision on the defendant’s motion pursuant to Practice Book § 16-37.3

On December 9, 2016, the jury returned a verdict in

favor of the plaintiff. Thereafter, the defendant filed

a posttrial motion for judgment notwithstanding the

verdict, claiming that the plaintiff had failed to establish

a prima facie case of discrimination because the evidence was insufficient to establish that the termination

of the plaintiff’s employment occurred under circumstances giving rise to an inference of discrimination

and, additionally, that the plaintiff had failed to carry

her ultimate burden of establishing that the defendant’s

reason for terminating her employment was pretextual
and that her dismissal was motivated by unlawful discrimination.4

In its memorandum of decision denying

the defendant’s motion, the court concluded that,

although the evidence was not overwhelming, the jury

reasonably could have inferred from the ‘‘relatively

sharp’’ change in Smith’s attitude toward the plaintiff

and the abrupt commencement of complaints regarding

the plaintiff’s job performance after she disclosed her

pregnancy that the defendant’s proffered reason for

terminating the plaintiff’s employment was pretextual

and that the defendant intentionally had discriminated

against her on the basis of pregnancy.

On November 1, 2018, the issue of damages was tried

to the court. The court awarded the plaintiff $315,187.83

in economic damages, as well as prejudgment and postjudgment interest and attorney’s fees. This appeal followed. Additional facts and procedural history will be

set forth as necessary.

I

On appeal, the defendant claims that the court

improperly denied its motion for judgment notwithstanding the verdict because the plaintiff failed to establish (1) a prima facie case of pregnancy discrimination

and (2) that the defendant’s reason for terminating the

plaintiff’s employment was a pretext for intentional discrimination.5

We begin our discussion of the defendant’s claim that

it was entitled to judgment as a matter of law by setting

forth the standard of review. ‘‘Appellate review of a

trial court’s refusal to render judgment notwithstanding

the verdict occurs within carefully defined parameters.’’

(Internal quotation marks omitted.) Elliott v. Larson,

81 Conn. App. 468, 472, 840 A.2d 59 (2004). ‘‘We must

consider the evidence, and all inferences that may be

drawn from the evidence, in a light most favorable to the

party that was successful at trial. . . . This standard

of review extends deference to the judgment of the

judge and the jury who were present to evaluate witnesses and testimony.’’ (Citation omitted.) Craine v.

Trinity College, 259 Conn. 625, 635–36, 791 A.2d 518

(2002).

‘‘Judgment notwithstanding the verdict should be

granted only if we find that the jurors could not reasonably and legally have reached the conclusion that they

did reach.’’ (Internal quotation marks omitted.) Elliott

v. Larson, supra, 81 Conn. App. 472–73. ‘‘Although it is

the jury’s right to draw logical deductions and make

reasonable inferences from the facts proven . . . it

may not resort to mere conjecture and speculation.’’

(Internal quotation marks omitted.) Bagley v. Adel Wiggins Group, 327 Conn. 89, 102, 171 A.3d 432 (2017).

‘‘Whether the evidence presented by the plaintiff was

sufficient to withstand a motion for [judgment notwithstanding the verdict] is a question of law, over which
our review is plenary.’’6 Curran v. Kroll, 303 Conn. 845,

855, 37 A.3d 700 (2012).

‘‘Two further fundamental points bear emphasis.

First, the plaintiff in a civil matter is not required to

prove [her] case beyond a reasonable doubt; a mere

preponderance of the evidence is sufficient. Second,

the well established standards compelling great deference to the historical function of the jury find their roots

in the constitutional right to a trial by jury.’’ (Internal

quotation marks omitted.) Madigan v. Housing Authority, 156 Conn. App. 339, 362, 113 A.3d 1018 (2015).

Having set forth the applicable standard of review,

we now turn to the general principles governing a claim

of pregnancy discrimination in violation of § 46a-60 (b)

(7) (A). Although the language of Title VII of the Civil

Rights Act of 1964 and the Connecticut Fair Employment Practices Act differ slightly, our Supreme Court

has observed that the legislature intended to make our

state discrimination laws coextensive with the federal

statute. State v. Commission on Human Rights &

Opportunities, 211 Conn. 464, 469–70, 559 A.2d 1120

(1989). Thus, Connecticut courts often look to federal

employment discrimination law for guidance in enforcing our own antidiscrimination statute. Id.; Ayantola v.

Board of Trustees of Technical Colleges, 116 Conn. App.

531, 536, 976 A.2d 784 (2009).

‘‘The framework this court employs in assessing . . .

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.’’ (Internal quotation marks omitted.) Tomick

v. United Parcel Service, Inc., 157 Conn. App. 312, 325,

115 A.3d 1143 (2015), aff’d, 324 Conn. 470, 153 A.3d 615

(2016). Under the McDonnell Douglas Corp. burden

shifting analysis, the employee must ‘‘first make a prima

facie case of discrimination. . . . The employer may

then rebut the prima facie case by stating a legitimate,

nondiscriminatory justification for the employment

decision in question. . . . 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.’’ (Internal quotation marks omitted.) Taing v. CAMRAC, LLC, 189

Conn. App. 23, 28, 206 A.3d 194 (2019).

In reviewing a discrimination claim we bear in mind

that ‘‘the question facing triers of fact in [employment]

discrimination cases is both sensitive and difficult

. . . . There rarely will be direct evidence of discrimination.’’ (Citation omitted; internal quotation marks

omitted.) Board of Education v. Commission on

Human Rights & Opportunities, 266 Conn. 492, 516,

832 A.2d 660 (2003). The McDonnell Douglas Corp.

framework ‘‘is intended to provide guidance to fact

finders who are faced with the difficult task of determin-
ing intent in complicated discrimination cases. It must

not, however, cloud the fact that it is the plaintiff’s

ultimate burden to prove that the defendant intentionally discriminated against her because of her [pregnancy].’’ Craine v. Trinity College, supra, 259 Conn.

637; see also Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed.

2d 207 (1981).

A

Prima Facie Case of Discrimination

We first address whether the plaintiff established a

prima facie case of pregnancy discrimination. In general, ‘‘[i]n 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.’’

(Internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015).

If the plaintiff succeeds in establishing a prima facie

case, it creates a rebuttable presumption that the

employer intentionally discriminated against the

employee. St. Mary’s Honor Center v. Hicks, 509 U.S.

502, 506, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); see

also Texas Dept. of Community Affairs v. Burdine,

supra, 450 U.S. 254 n.7. Thereafter, the burden shifts

to the defendant to rebut the presumption raised by

articulating a legitimate, nondiscriminatory reason for

the adverse employment action. St. Mary’s Honor Center v. Hicks, supra, 506–507.

On appeal, the defendant does not challenge the

plaintiff’s prima facie case on the grounds that she failed

to prove that she was a member of a protected class,

was qualified for her position, and suffered an adverse

employment action. See footnote 4 of this opinion.

Accordingly, only the fourth element of the plaintiff’s

prima facie case—whether the plaintiff established that

the termination of her employment occurred under circumstances giving rise to an inference of discrimination—is at issue in this appeal.

‘‘Circumstances contributing to a permissible inference of discriminatory intent may include the employer’s continuing, after discharging the plaintiff, to seek

applicants from persons of the plaintiff’s qualifications

to fill that position . . . or [the employer’s] invidious

comments about others in the employee’s protected

group . . . or the more favorable treatment of employees not in the protected group . . . or the sequence of

events leading to the plaintiff’s discharge . . . or the

timing of the discharge . . . .’’ (Citations omitted.)

Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d

Cir. 1994); see also Martinez v. Premier Maintenance,
Inc., 185 Conn. App. 425, 439–40, 197 A.3d 919 (2018).

As our Supreme Court has recognized, however,

‘‘[n]othing in McDonnell Douglas Corp. . . . limits the

type of circumstantial evidence that may be used to

establish the fourth prong of the test for a prima facie

case of [pregnancy] discrimination.’’ Craine v. Trinity

College, supra, 259 Conn. 640–41.

The plaintiff primarily relies on the sequence of

events over the course of her employment with the

defendant to establish that her dismissal occurred

under circumstances giving rise to an inference of discrimination. Specifically, the plaintiff testified that, in

the first few weeks of her employment, Smith was very

friendly to her, spent hours working collaboratively

with her on projects, and developed a great working

relationship with her. Furthermore, prior to the disclosure of her pregnancy, Smith neither informed the plaintiff that she was not meeting Smith’s expectations nor

otherwise indicated that her performance was deficient.

The plaintiff testified, however, that after disclosing

her pregnancy to Smith, Smith’s attitude toward her

abruptly changed and Smith began to micromanage her

and criticized her work. Smith subsequently terminated

her employment, approximately five weeks after the

plaintiff had disclosed that she was pregnant.

The defendant contends that the plaintiff’s evidence

was insufficient to give rise to an inference that her

dismissal was the result of discrimination. We disagree

and conclude that there is sufficient evidence in the

record from which a rational fact finder could infer

that the termination of the plaintiff’s employment was

motivated by discriminatory bias toward the plaintiff

based on her pregnancy.

Evidence of the working environment and the relationship between the plaintiff and Smith prior to, and

after, the plaintiff’s disclosure of her pregnancy,

namely, Smith’s (1) sudden micromanagement of the

plaintiff, (2) brusque and cold manner toward the plaintiff, (3) abrupt dissatisfaction with the plaintiff’s job

performance, and (4) discharging of the plaintiff shortly

after learning of the plaintiff’s pregnancy, was sufficient

to create an inference that the defendant unlawfully

discriminated against the plaintiff on the basis of pregnancy when it terminated her employment.

Viewing the plaintiff’s evidence in its entirety, the

jury reasonably could have inferred that a nexus existed

between the plaintiff’s disclosure of her pregnancy and

the defendant’s termination of her employment. In the

context of a wrongful discharge action, this court previously has held that, for purposes of a prima facie

case, a plaintiff may establish an inference of discrimination by demonstrating that the protected activity was

followed close in time by an adverse action. See, e.g.,

Li v. Canberra Industries, 134 Conn. App. 448, 454–57,

39 A.3d 789 (2012); see also El Sayed v. Hilton Hotels
Corp., 627 F.3d 931, 933 (2d Cir. 2010) (temporal proximity between employee filing complaint and subsequent discharge may give rise to inference sufficient to

establish prima facie case of retaliation); Asmo v.

Keane, Inc., 471 F.3d 588, 594 (6th Cir. 2006) (two

months between supervisor learning plaintiff was pregnant and termination of plaintiff’s employment was sufficient to establish nexus for purposes of prima facie

case of discrimination).

Because the plaintiff put forth sufficient evidence

to establish that the termination of her employment

occurred under circumstances giving rise to an inference of discrimination, the plaintiff satisfied her initial

burden of establishing a prima facie case of discrimination. The trial court, therefore, properly denied the

defendant’s motion for judgment notwithstanding the

verdict on that ground.

B

Pretext and Intentional Discrimination

We next turn to whether there was sufficient evidence

to support the jury’s finding that the defendant intentionally discriminated against the plaintiff on the basis

of her pregnancy. The defendant claims that the court

improperly denied its motion for judgment notwithstanding the verdict because there was no evidentiary

basis to support the jury’s determination that the defendant’s proffered reason for terminating the plaintiff’s

employment was pretextual or that the defendant intentionally discriminated against the plaintiff.7 The defendant argues that, even assuming that the plaintiff

adduced evidence sufficient to support a finding that

the defendant’s explanation was pretextual, the plaintiff

failed to adduce any concrete evidence, beyond the

inferences relied on in her prima facie case, to establish

that her dismissal was motivated by intentional discrimination and that the jury, therefore, resorted to impermissible speculation and conjecture in returning its verdict in favor of the plaintiff. The defendant relatedly

argues that the plaintiff did not adduce evidence beyond

the temporal proximity between her pregnancy disclosure and her dismissal to prove that the defendant’s

explanation was a pretext for intentional discrimination, which is insufficient as a matter of law to establish

a discrimination claim. See Govori v. Goat Fifty, L.L.C.,

519 Fed. Appx. 732, 734 (2d Cir. 2013). For the following

reasons, we conclude that there was sufficient evidence

from which the jury reasonably could have found that

the defendant discriminated against the plaintiff on the

basis of her pregnancy.

We first set forth the relevant legal principles that

guide our analysis of this claim. Once a plaintiff has

adduced evidence sufficient to establish a prima facie

case of discrimination, the burden shifts to the defendant to rebut the presumption raised, by articulating a
legitimate, nondiscriminatory reason for the adverse

employment action. Taing v. CAMRAC, LLC, 189 Conn.

App. 23, 28, 206 A.3d 194 (2019). The defendant’s ‘‘burden is one of production, not persuasion; it can involve

no credibility assessment.’’ (Internal quotation marks

omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn.

74. Although the defendant must produce sufficient evidence to support its nondiscriminatory explanation, it

bears emphasizing that the ultimate burden of persuading the fact finder ‘‘that the defendant intentionally discriminated against the plaintiff remains at all times with

the plaintiff.’’ (Internal quotation marks omitted.)

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).

If the defendant carries its burden of production, the

presumption raised by the plaintiff’s prima facie case

‘‘drops from the case’’; (internal quotation marks omitted) St. Mary’s Honor Center v. Hicks, supra, 509 U.S.

507; and the sole remaining issue becomes ‘‘discrimination vel non . . . .’’ (Citation omitted; internal quotation marks omitted.) Reeves v. Sanderson Plumbing

Products, Inc., supra, 530 U.S. 143. In other words, the

plaintiff must persuade the trier of fact, by a preponderance of the evidence, that the defendant’s justification

for her dismissal ‘‘is merely a pretext and that the decision actually was motivated by illegal discriminatory

bias.’’ Craine v. Trinity College, supra, 259 Conn. 637.

‘‘[The plaintiff] may succeed in this either directly by

persuading the [jury] that a discriminatory reason more

likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy

of credence.’’ Texas Dept. of Community Affairs v.

Burdine, supra, 450 U.S. 256.

Although the presumption created by the prima facie

case disappears after the defendant has produced evidence sufficient to establish a nondiscriminatory reason

for the adverse employment action, ‘‘the plaintiff may

rely upon the evidence used in establishing [her] prima

facie case to prove the ultimate issue of [pregnancy]

discrimination.’’ Craine v. Trinity College, supra, 259

Conn. 644. Furthermore, ‘‘[t]he factfinder’s disbelief of

the reasons put forward by the defendant (particularly

if disbelief is accompanied by a suspicion of mendacity)

may, together with the elements of the prima facie case,

suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit

the trier of fact to infer the ultimate fact of intentional

discrimination, and . . . upon such rejection, [n]o

additional proof of discrimination is required . . . .’’

(Internal quotation marks omitted.) Jackson v. Water

Pollution Control Authority, 278 Conn. 692, 706, 900

A.2d 498 (2006), quoting St. Mary’s Honor Center v.

Hicks, supra, 509 U.S. 511.

The following additional facts, viewed in the light

most favorable to the plaintiff, are relevant to our reso-
lution of the defendant’s claim. At trial, the defendant

contended that it terminated the plaintiff’s employment

because of her poor performance. Smith testified that,

after she had received feedback from Patel on the plaintiff’s first day of work that the plaintiff appeared disinterested and unengaged at orientation, Smith and Patel

frequently discussed among themselves Smith’s concerns about the plaintiff’s performance. Smith began

documenting the plaintiff’s performance issues when,

in Smith’s opinion, the plaintiff’s performance did not

improve following later discussions with the plaintiff

about her deficiencies.

The defendant placed into evidence a chart generated

by Smith that summarized the plaintiff’s performance

issues, as well as e-mails that purported to support

Smith’s observations. Among other things, Smith noted

that the plaintiff’s performance was deficient in the

following areas: communication, knowledge of the

defendant’s brand and products, organization, attention

to detail, being proactive, and adhering to the expected

work schedule. Significantly, all of the documents introduced into evidence by the defendant were dated on

or after March 29, 2013, the day that the plaintiff disclosed her pregnancy to Smith. Moreover, the plaintiff

produced evidence calling into question many of the

defendant’s claims about her deficient performance.

With respect to the defendant’s claims about the

plaintiff’s schedule, Smith testified that she did not

instruct the plaintiff to arrive for work by 8:30 a.m.

Instead, she testified that she told the plaintiff that she

generally arrived to work between 8 and 8:30 a.m. and

that she therefore had expected that the plaintiff would

arrive at approximately the same time. The plaintiff

routinely arrived at approximately 9 a.m. until Smith

e-mailed the plaintiff on April 5, 2013, to inform her

that she was expected to attend daily meetings with

the digital team at 8:30 a.m. The plaintiff regularly met

with Smith in the first few weeks of her employment,

often for many hours at a time, and it was only after

disclosing her pregnancy that Smith told her that she

was expected to attend the digital team’s morning meetings and that she must arrive to work by 8:30 a.m. The

plaintiff had assumed that her hours were that of a

‘‘regular job, nine to five,’’ and was never told otherwise

until after she informed Smith about her pregnancy.

The plaintiff started attending the digital team’s daily

morning meetings after receiving Smith’s e-mail about

her expected work hours.

With respect to the defendant’s claim concerning the

plaintiff’s communication issues, Smith noted that the

plaintiff did not effectively communicate with her when

she had childcare obligations requiring her to arrive

late or leave early. In her April 5, 2013 e-mail to the

plaintiff, Smith asked the plaintiff for the first time to

communicate her schedule. The plaintiff subsequently
provided Smith with her schedule for the following two

weeks and adhered to that schedule. Smith testified

that she did not receive any further communications

from the plaintiff about any scheduling conflicts. Smith,

however, could not say definitively whether the plaintiff

continued to have childcare related scheduling issues

or whether any such issues were resolved, which, if

resolved, would obviate any need for the plaintiff to

keep Smith apprised of any such issues.

Smith also documented the plaintiff’s lack of organizational skills, proactivity, and attention to detail. Specifically, she testified that, on March 29, 2013, the plaintiff hastily responded to a request for marketing

materials from another department within the company

and, in so doing, did not send all of the marketing images

or file sizes requested. On April 22, 2013, Smith also

received feedback from the director of the digital team,

Brad Stamulis, that the plaintiff had not been proactive

in providing his team with information about when they

could expect certain marketing materials. The plaintiff

testified, however, that she was unable to provide that

information because, after e-mailing Smith to express

that she urgently needed Smith to respond about the

outstanding materials, Smith had failed to reply.

The defendant also produced evidence that, on April

10, 2013, the plaintiff gave approval to an external

agency to publish an advertisement with the wrong

hyperlink. Smith testified that, had Smith not recognized and rectified the advertisement the plaintiff had

approved, it would have directed consumers to a product that was unavailable in the market segment where

the advertisement was to be published. According to

Smith, such an error potentially could have exposed

the defendant to legal action. The plaintiff acknowledged that she made a ‘‘ ‘huge mistake,’ ’’ but also testified that the error was partly due to a problem with

the notification feature in the defendant’s project management system that had caused her to overlook a communication from someone seeking to confirm that the

hyperlink was correct.

With respect to the plaintiff’s knowledge of the defendant’s brand and products, Smith testified that, on April

12, 2013, the plaintiff provided incorrect information to

an external marketing agency, which demonstrated a

fundamental lack of understanding about the defendant’s rate plans. The plaintiff testified, however, that

the defendant did not provide her with official training

on the defendant’s pricing policies until April 18, 2013.

In sum, Smith asserted that the plaintiff was in probationary status throughout her employment and that, per

the defendant’s policy, Smith was not required to notify

the plaintiff that her performance was deficient or warn

her that she was in jeopardy of her employment being

terminated. Smith testified that, although she did not

document the exact dates or details regarding the dis-
cussions she had with the plaintiff and did not provide

the plaintiff with any written documentation of her concerns with the plaintiff’s performance, she frequently

had talked with the plaintiff about her performance

issues over the course of her employment and had fairly

apprised the plaintiff of her deficiencies. Additionally,

Smith and Patel testified that they reviewed the chart

that Smith generated and made the decision to terminate the plaintiff’s employment because her performance had not improved. Smith and Patel further testified that the plaintiff’s employment was terminated

because she had made basic errors and did not satisfactorily meet the expectations of the senior manager position.

The plaintiff did not dispute that she had made some

mistakes during her employment with the defendant.

The plaintiff, however, testified that Smith never had

expressed dissatisfaction with her performance or otherwise indicated that she was not meeting Smith’s

expectations. Rather, Smith told the plaintiff that she

understood that the plaintiff was still learning and occasionally would make mistakes. According to the plaintiff, it was not until she disclosed her pregnancy that

Smith began to critique and micromanage her work

on every project that she was assigned. The plaintiff

testified that her dismissal came as a ‘‘complete shock’’

and that she never had been shown the documents

regarding her performance deficiencies until after she

filed a complaint with the commission.

Having set forth the relevant facts, we first review

whether the plaintiff adduced evidence from which the

jury could have found that the defendant’s nondiscriminatory reason for terminating the plaintiff’s employment was pretextual. ‘‘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 reasons.’’ (Internal quotation marks omitted.) Stubbs v.

ICare Management, LLC, 198 Conn. App. 511, 523, 233

A.3d 1170 (2020).

Having reviewed the record, we conclude that there

was sufficient evidence for the jury to have concluded

that the defendant’s stated reason for the plaintiff’s

dismissal was pretextual. To wit, the plaintiff established that Smith did not begin documenting her allegedly deficient performance until after she informed

Smith that she was pregnant. Although Smith testified

that she had numerous conversations with the plaintiff

about her performance before the plaintiff disclosed

that she was pregnant, none of the documents admitted

into evidence supports that claim. Moreover, the plaintiff testified that, prior to disclosing her pregnancy,
Smith never expressed dissatisfaction with her performance and that Smith began to micromanage and criticize her work only after learning that the plaintiff was

pregnant. As the trial court observed in its memorandum of decision denying the defendant’s motion for

judgment notwithstanding the verdict, the jury was not

required to assume that the rather abrupt identification

of performance problems, as evidenced by the defendant’s documents and the plaintiff’s testimony, was a

mere coincidence. The jury reasonably could infer from

the timing of Smith’s marked dissatisfaction with the

plaintiff’s performance, which coincided with the plaintiff’s disclosure of her pregnancy, that the termination

of the plaintiff’s employment was more likely motivated

by discriminatory bias than by her alleged performance

deficiencies.

The defendant contends that its uncontroverted proof

of a performance issue identified on the same day the

plaintiff disclosed her pregnancy, by someone without

knowledge of the plaintiff’s pregnancy, contradicts any

inference that the defendant’s nondiscriminatory reason for terminating her employment was pretextual.

Specifically, the defendant asserts that the March 29,

2013 e-mail indicating that the plaintiff did not provide

all of the marketing materials requested by another

department within the company conflicts with the plaintiff’s claim that she did not receive any feedback about

her performance until after she disclosed her pregnancy

and, consequently, that the plaintiff’s evidence was

insufficient to prove that the defendant’s justification

for terminating her employment was false. Evidence,

however, is not insufficient simply because it is conflicting or inconsistent. State v. Douglas F., 145 Conn. App.

238, 244, 73 A.3d 915, cert. denied, 310 Conn. 955, 81

A.3d 1181 (2013). Moreover, it is well established that

‘‘[i]t is the jury’s right to accept some, none or all of

the evidence presented. . . . It is the [jury’s] exclusive

province to weigh the conflicting evidence and to determine the credibility of witnesses.’’ (Internal quotation

marks omitted.) Cusano v. Lajoie, 178 Conn. App. 605,

609, 176 A.3d 1228 (2017). Accordingly, the jury reasonably could have determined that the March 29, 2013

e-mail was of little to no consequence, especially when

juxtaposed against the considerable evidence supporting the plaintiff’s contention that her pregnancy disclosure marked a dramatic shift in the work environment.

There was also evidence that, although not directly

refuting the alleged performance issues, may have nevertheless persuaded the jury that the defendant’s nondiscriminatory justification was not the real reason

underlying the plaintiff’s dismissal. The plaintiff’s evidence, if believed, cast doubt on some of the defendant’s

claims about her performance issues. With respect to

the plaintiff’s failure to adhere to the required work

schedule, for example, the plaintiff testified that she

was never informed that she was to report to work at
8:30 a.m. prior to disclosing her pregnancy. The plaintiff’s testimony that she and Smith spent many hours

collaborating in the first few weeks of the plaintiff’s

employment and, according to the plaintiff, Smith never

discussed with the plaintiff that she was reporting late

to work until after learning the plaintiff was pregnant,

supports a reasonable inference that the plaintiff’s timeliness was not a legitimate concern. See Board of Education v. Commission on Human Rights & Opportunities, supra, 266 Conn. 513–14 (there is distinction

between fact finder second-guessing employer’s business judgment, which would be improper, and fact

finder concluding that employer’s justifications are not

credible). Although Smith disputed the plaintiff’s

account, the jury was not required to accept Smith’s

testimony. See State v. Brown, 198 Conn. App. 630, 637,

233 A.3d 1258, cert. denied, 335 Conn. 942, 237 A.3d

730 (2020). The plaintiff also testified that Stamulis’

feedback about her lack of proactivity at a morning

meeting resulted from Smith’s failure to respond to the

plaintiff’s questions about certain marketing materials.

Additionally, Smith’s own testimony appeared to undermine her assertion that the plaintiff failed to keep her

apprised of scheduling conflicts. Smith could not state

definitively whether the plaintiff’s childcare obligations

had been resolved, which would have made it unnecessary to keep Smith apprised of any such conflicts.

We conclude that the evidence at trial was sufficient

for a rational jury to reject the defendant’s proffered

explanation and find that the plaintiff’s dismissal was

actually motivated by discrimination. The jury reasonably could have found that, prior to the plaintiff’s disclosure of her pregnancy to Smith, the plaintiff and Smith

often worked collaboratively for many hours and had

developed a good relationship; Smith was cordial when

interacting with the plaintiff; and Smith never indicated

to the plaintiff that she was not meeting expectations

or criticized the plaintiff’s work. Within a few days of

disclosing her pregnancy to Smith and informing Patel,

who met regularly with Smith to discuss the plaintiff’s

alleged performance issues, that she would almost certainly require an extended leave of absence because of

potential pregnancy complications, Smith began to treat

the plaintiff differently. After informing Smith that she

was pregnant, Smith was curt and unfriendly toward

the plaintiff, no longer invited the plaintiff into her office

to collaborate on projects, micromanaged the plaintiff,

became critical of the plaintiff’s work performance and

terminated the plaintiff’s employment fewer than five

weeks later. On the basis of this evidence, the jury

reasonably could have found that the timing of Smith’s

abrupt dissatisfaction with the plaintiff’s performance

was suspicious and that there was a nexus between

the plaintiff’s pregnancy and the termination of her

employment. This inference is further buttressed by the

fact that Smith extensively documented the plaintiff’s
alleged performance deficiencies only after the plaintiff

disclosed her pregnancy.

Although there may well be other reasonable inferences that can be drawn from the plaintiff’s evidence,

we do not agree that the jury must have resorted to

speculation and conjecture in reaching its verdict. As

our Supreme Court has observed, ‘‘[p]roof of a material

fact by inference from circumstantial evidence need not

be so conclusive as to exclude every other hypothesis.

It is sufficient if the evidence produces in the mind of

the trier a reasonable belief in the probability of the

existence of the material fact. . . . [A]n inference need

not be compelled by the evidence; rather, the evidence

need only be reasonably susceptible of such an inference.’’ (Internal quotation marks omitted.) Curran v.

Kroll, supra, 303 Conn. 857. We find these principles

particularly compelling in the context of a discrimination claim where a plaintiff is often constrained to rely

on circumstantial evidence to prove intent. See, e.g.,

Chambers v. TRM Copy Centers Corp., supra, 43 F.3d

37 (‘‘[e]mployers are rarely so cooperative as to include

a notation in the personnel file that their actions are

motivated by factors expressly forbidden by law’’ (internal quotation marks omitted)).

At oral argument before this court, the defendant

contended that, assuming, arguendo, there was sufficient evidence to establish that the defendant’s proffered justification was pretextual, pursuant to Craine

v. Trinity College, supra, 259 Conn. 625, and PerezDickson v. Bridgeport, 304 Conn. 483, 43 A.3d 69 (2012),

the plaintiff was also required to adduce additional evidence beyond the inferences relied on in support of

her prima facie case in order to prevail. We are not

persuaded by the defendant’s reading of Craine or

Perez-Dickson. Neither of those decisions stands for

the broad proposition that, if a plaintiff successfully

rebuts the defendant’s nondiscriminatory reason for the

adverse employment action, a plaintiff must produce

additional evidence of discriminatory intent beyond

that which may be inferred from the plaintiff’s prima

facie case in order to prevail in an employment discrimination action. Rather, our Supreme Court’s conclusions

in Craine and in Perez-Dickson turned on the specific

facts and circumstances of those cases.

Furthermore, in Craine, the court was guided by

the United States Supreme Court’s holding in Reeves v.

Sanderson Plumbing Products, Inc., supra, 530 U.S.

148. In Reeves, the court held that a plaintiff’s prima

facie case, combined with sufficient evidence for a reasonable fact finder to reject the employer’s nondiscriminatory explanation for the adverse employment action,

permits the trier of fact to conclude that the employer

unlawfully discriminated. Id.; see also Craine v. Trinity

College, supra, 259 Conn. 645. Stated differently, on

establishing that the employer’s asserted reason for its
action is pretextual, the plaintiff is not required to put

forth additional evidence of discrimination to prevail.8

The defendant has not directed us to any legal authority

that would make Reeves inapplicable to the present

appeal. The jury, therefore, on rejecting the defendant’s

reason, was permitted to infer the ultimate fact of intentional discrimination on the basis of the inferences reasonably drawn from the evidence rebutting the defendant’s explanation and establishing the plaintiff’s prima

facie case.

The defendant additionally claims that the plaintiff

relied solely on evidence of ‘‘temporal proximity’’ to

prove her discrimination claim, without bringing forth

any additional evidence that the defendant’s proffered

legitimate reason for its action was pretextual, which

it argues is insufficient as matter of law. The defendant

cites Govori v. Goat Fifty, L.L.C., supra, 519 Fed. Appx.

734, for the proposition that, although proximity

between protected activity and an adverse employment

action may be sufficient to establish a prima facie case

of discrimination, such evidence is, by itself, insufficient

to establish that an employer’s nondiscriminatory reasons for dismissing an employee are pretextual.

In contending that the plaintiff relied solely on evidence of temporal proximity to establish her pregnancy

discrimination claim, the defendant mistakenly conflates the concept of temporal proximity evidence with

evidence establishing a sequence of events that transpired following the plaintiff’s disclosure of her protected status. Evidence contrasting the plaintiff’s working environment prior to and after she disclosed her

pregnancy, however, is more than evidence merely

establishing temporal proximity between the plaintiff’s

disclosure and her subsequent dismissal. Whereas temporal proximity between two events alone may be sufficient to establish a prima facie case, the broader

sequence of events leading up to and including an

adverse employment decision provides important context that may establish whether there exists a nexus

between those two events. In other words, the close

proximity between when Smith learned about the plaintiff’s pregnancy and the plaintiff’s subsequent dismissal

raises a permissible inference that there exists a relationship between those events. The stark contrast

between the working environment prior to and after the

plaintiff disclosed her pregnancy constitutes evidence

beyond mere ‘‘temporal proximity’’ and supports the

inference of unlawful discrimination.

Although, as the trial court noted, the plaintiff’s evidence was not particularly overwhelming, viewed in

the light most favorable to sustaining the verdict, we

conclude that there was sufficient evidence from which

the jury could have inferred that the defendant’s nondiscriminatory reason for terminating the plaintiff’s

employment was pretextual and that the plaintiff’s dis-
missal was actually motivated by intentional discrimination. In so concluding, we are mindful of the well recognized principles that compel our deference to the

historical function of the jury. See, e.g., Jackson v. Water

Pollution Control Authority, supra, 278 Conn. 704 (‘‘[i]f

the jury could reasonably have reached its conclusion,

the verdict must stand, even if this court disagrees with

it’’ (internal quotation marks omitted)); Elliott v. Larson, supra, 81 Conn. App. 475 (‘‘[w]e test the propriety

of a motion for a judgment notwithstanding the verdict

in accordance with the principle that we give the evidence at trial the most favorable reasonable construction in support of the verdict to which it is entitled’’

(internal quotation marks omitted)).

Because ‘‘it is apparent that there was some evidence

upon which the jury might reasonably [have] reach[ed]

[its] conclusion’’; (internal quotation marks omitted)

Salaman v. Waterbury, 246 Conn. 298, 304, 717 A.2d 161

(1998); the trial court properly denied the defendant’s

motion for judgment notwithstanding the verdict.

II

The defendant’s final claim is that the court miscalculated the plaintiff’s damages because it improperly

failed to exclude from the plaintiff’s award ten months

of back pay for which the plaintiff did not produce

documents to prove her efforts to obtain employment.

The defendant’s claim is predicated on its belief that the

court based its decision to exclude seventeen months

of back pay entirely on the plaintiff’s failure to produce

documents supporting her request for damages for

those months. The defendant therefore argues that the

court similarly should not have awarded back pay for

any month in which the plaintiff failed to produce documentary evidence that she attempted to mitigate her

damages by actively seeking employment. We disagree

with the defendant’s interpretation of the court’s decision and conclude that the court’s assessment of damages was not clearly erroneous.

Before addressing the merits of the defendant’s claim,

we set forth the relevant legal principles and standard

of review that guide our analysis. It is axiomatic that

a plaintiff has a duty to make reasonable efforts to

mitigate damages. Cweklinsky v. Mobil Chemical Co.,

267 Conn. 210, 223, 837 A.2d 759 (2004). An employer

seeking to reduce or avoid a back pay award ‘‘bears

the burden of demonstrating that a plaintiff has failed to

satisfy the duty to mitigate.’’ (Internal quotation marks

omitted.) Gaither v. Stop & Shop Supermarket Co.,

LLC, 84 F. Supp. 3d 113, 123 (D. Conn. 2015); see also

Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209,

229, 676 A.2d 844 (1996). The employer must therefore

demonstrate that ‘‘suitable work existed, and that the

employee did not make reasonable efforts to obtain it.’’

Clarke v. Frank, 960 F.2d 1146, 1152 (2d Cir. 1992).
Whether a plaintiff made a reasonable effort to mitigate her damages under the circumstances of a particular case is a question of fact. Dunleavey v. Paris Ceramics USA, Inc., 97 Conn. App. 579, 582, 905 A.2d 703

(2006). ‘‘In a case tried before a court, the trial judge

is the sole arbiter of the credibility of the witnesses

and the weight to be given specific testimony.’’ (Internal

quotation marks omitted.) Aldin Associates Ltd. Partnership v. Hess Corp., 176 Conn. App. 461, 484, 170

A.3d 682 (2017). ‘‘[W]e will upset a factual determination

of the trial court only if it is clearly erroneous. The trial

court’s findings are binding upon this court unless they

are clearly erroneous in light of the evidence and the

pleadings in the record as a whole. . . . We cannot

retry the facts or pass on the credibility of the witnesses.

A finding of fact is clearly erroneous when there is no

evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’’

(Internal quotation marks omitted.) Dunleavey v. Paris

Ceramics USA, Inc., supra, 583.

The following additional facts and procedural history

are relevant to our resolution of the defendant’s claim.

Following her dismissal, the plaintiff was unable to

obtain employment until September, 2017. During the

damages portion of the trial, which was tried to the

court, the plaintiff sought approximately fifty-two

months of back pay.9 For twenty-seven of the approximately fifty-two months that she was unemployed, the

plaintiff did not produce documents supporting her

claim that she made efforts to mitigate her damages.

The plaintiff worked with several recruiters, utilized

employment websites, regularly spoke with acquaintances about potential opportunities, and networked

with former coworkers approximately once a week to

learn of available jobs. She failed, however, to maintain

a complete set of records of her search efforts. Instead,

she attempted to document her efforts to find employment by combining information from her e-mails, networking websites, employer websites, the contact list

on her cell phone, and memory. The plaintiff also

acknowledged that she inadvertently may have failed

to produce some documents that would further demonstrate her mitigation efforts due to the volume of e-mails

that were in her inbox.10

A vocational expert, Rona Wexler, testified on behalf

of the defendant. Wexler opined that the plaintiff’s

search for employment was ineffective, inconsistent,

and evidenced minimal effort. According to Wexler,

the marketing industry was still recovering from the

recession in 2013 when the plaintiff was seeking

employment, but the demand for employees with digital

marketing experience increased in the following few

years. She was unaware of how many opportunities
actually existed in the geographical area where the

plaintiff sought employment during the time the plaintiff

was unemployed.

In its memorandum of decision, the court found that

the plaintiff had failed to record and preserve documents relating to her mitigation efforts, which it

weighed in its determination of damages. As to Wexler’s

testimony, the court found that it lacked specificity with

regard to the number and types of comparable positions

that were available in the marketing industry when the

plaintiff was searching for employment, thus diminishing the persuasiveness of Wexler’s conclusions about

the plaintiff’s search efforts. Because the plaintiff had

provided no documents and ‘‘no satisfactory explanation’’ regarding the absence of tangible proof concerning her search during significant periods of time, the

court found that the defendant had proven that the

plaintiff failed to satisfy her duty to mitigate damages

during certain months when she was unemployed. Specifically, the court found that the plaintiff did not

actively participate in the job market from May to

December, 2013, when she was on bed rest and postpartum. The court also found that there was a pattern of

minimal to no activity during the summer months in

2014, 2015, and 2016. Accordingly, the court awarded

the plaintiff approximately thirty-five months of back

pay, not the fifty-two months of back pay that she was

seeking.11

On appeal, the defendant claims that the court

improperly awarded the plaintiff ten months of back

pay because the plaintiff did not provide any tangible

proof of her efforts to obtain employment during those

months. The defendant argues that the trial court’s decision awarding the plaintiff back pay for those ten

months is inconsistent with, and contrary to, the court’s

decision to exclude seventeen months of back pay

based on the plaintiff’s failure to produce physical evidence supporting her mitigation efforts during those

months. The defendant mischaracterizes the court’s

findings.

The court’s memorandum of decision makes clear

that it did not determine that the plaintiff had failed to

mitigate her damages for a total of seventeen months

on the basis of the plaintiff’s failure to produce physical

evidence alone. The court took into account the plaintiff’s failure to adequately document or preserve evidence of her efforts with respect to her job search,

stating that it goes ‘‘to the weight of the evidence presented and at least in some measure to the credibility

of the plaintiff.’’ Accordingly, although the plaintiff testified that she consistently searched for employment, the

court concluded, on the basis of all of the evidence it

heard concerning her damages, not just the documentary evidence or lack thereof, that the plaintiff did not

make a reasonable effort to mitigate her damages for
seventeen months while she was unemployed.

We therefore conclude that the court’s decision to

award back pay for some months in which the plaintiff

did not corroborate her mitigation efforts with tangible

proof was not clearly erroneous. It was for the court,

as the finder of fact, to weigh the plaintiff’s testimony

with respect to her overall efforts to obtain employment

against the lack of tangible evidence of those efforts.

See Llera v. Commissioner of Correction, 156 Conn.

App. 421, 440, 114 A.3d 178, cert. denied, 317 Conn. 907,

114 A.3d 1222 (2015). Moreover, it was the defendant’s

burden to prove that suitable work existed and that the

plaintiff did not exercise reasonable diligence to obtain

employment. The court found that Wexler’s testimony

on each of those points was entitled to little weight.

On the basis of our review of the record, we conclude

that the court’s finding that the defendant had proven

that the plaintiff had failed to mitigate her damages for

only seventeen of the fifty-two months that she was

unemployed was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The plaintiff also asserted a claim of negligent infliction of emotional

distress, which was resolved on a motion for summary judgment rendered in

favor of the defendant. The plaintiff does not challenge that ruling on appeal.

2 General Statutes § 46a-60 (b) provides in relevant part: ‘‘It shall be a

discriminatory practice in violation of this section . . . (7) [f]or an

employer, by the employer or the employer’s agent: (A) [t]o terminate a

woman’s employment because of her pregnancy . . . .’’

3 Practice Book § 16-37 provides in relevant part: ‘‘Whenever a motion for

a directed verdict made at any time after the close of the plaintiff’s casein-chief is denied or 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. . . .’’

4 The defendant also claimed that it was entitled to judgment notwithstanding the verdict because the plaintiff failed to prove that she was qualified

for her position, as is required to establish a prima facie case of employment

discrimination. But see Perez-Dickson v. Bridgeport, 304 Conn. 483, 514

n.34, 43 A.3d 69 (2012) (courts require showing that plaintiff is qualified

for position only when it is germane to issues involved). Additionally, the

defendant moved to set aside the verdict on the ground that, before the

court instructed the jury to reconcile the discrepancy, the jury’s initial

answer to an interrogatory was inconsistent with its verdict and, thus,

demonstrated that the jury was confused, warranting a new trial. The trial

court rejected both claims, and the defendant does not appeal from those rulings.

5

In its principal brief, the defendant specifically claimed that the court

improperly denied its motion for a directed verdict on the ground that the

plaintiff failed to establish a prima facie case of discrimination. As we

previously noted in this opinion, the court deferred its decision on the

defendant’s motion, which, pursuant to our rules of practice, was ‘‘the

equivalent of a denial of the motion for purposes of subsequent proceedings

. . . .’’ Riley v. Travelers Home & Marine Ins. Co., 333 Conn. 60, 72, 214

A.3d 345 (2019). The defendant renewed its motion for a directed verdict

in its posttrial motion for judgment notwithstanding the verdict, and, accordingly, the court’s ruling on the posttrial motion became the controlling

disposition for purposes of this appeal. See id., 73.

6 Relying on various appellate cases, the parties assert that the proper

standard of review of the defendant’s claim is the abuse of discretion standard. As this court recently has explained, however, although our opinions

sometimes have referred to the abuse of discretion standard in the context

of reviewing a trial court’s decision regarding a motion for judgment notwithstanding the verdict, where a party challenges a trial court’s ruling on a
motion for judgment notwithstanding the verdict on the basis of insufficient

evidence, our review is plenary. Cockayne v. Bristol Hospital, Inc., 210

Conn. App. 450, 457–59, A.3d (2022), petition for cert. filed (Conn.

February 28, 2022) (No. 210338); see also Pellet v. Keller Williams Realty

Corp., 177 Conn. App. 42, 50 n.9, 172 A.3d 283 (2017) (standard of review

governing claims that trial court improperly granted motion for directed

verdict became conflated with standard of review governing challenges to

trial court’s granting or denying motion to set aside verdict, but plenary

review applies when party moves for directed verdict on basis of insufficient

evidence).

7

In its principal brief, the defendant asserts that the ‘‘trial court erred in

denying [the defendant’s] motion to set aside the jury verdict on liability’’

and ‘‘should have . . . entered judgment in favor of [the defendant]’’ and

that the proper standard of review on appeal of the trial court’s denial of

a motion to set aside the verdict is abuse of discretion. (Emphasis added.)

We agree that the appropriate standard of appellate review with respect to

a trial court’s ruling on a motion to set aside a verdict is abuse of discretion.

See Madigan v. Housing Authority, supra, 156 Conn. App. 348. We interpret

the defendant’s claim on appeal, however, as seeking review of the court’s

denial of its motion for judgment notwithstanding the verdict on the basis

of insufficient evidence, which we review de novo.

8 The United States Supreme Court, however, also noted that the plaintiff

would not be entitled to judgment as a matter of law on putting forth

sufficient evidence to prove the defendant’s explanation was pretextual,

stating: ‘‘This is not to say that such a showing by the plaintiff will always

be adequate to sustain a jury’s finding of liability. Certainly there will be

instances where, although the plaintiff has established a prima facie case

and set forth sufficient evidence to reject the defendant’s explanation, no

rational factfinder could conclude that the action was discriminatory.’’

(Emphasis in original.) Reeves v. Sanderson Plumbing Products, Inc., supra,

530 U.S. 148; see also St. Mary’s Honor Center v. Hicks, supra, 509 U.S. 511

(fact finder’s rejection of employer’s legitimate nondiscriminatory reason

for its actions does not compel judgment for plaintiff).

9 The court calculated the plaintiff’s presumptive damages, net of unemployment compensation she had received, as $468,279.07.

10 There were approximately 40,000 e-mails in the plaintiff’s inbox. She

had conducted a keyword search to find documents to comply with the

defendant’s request for production.

11 The court found that the plaintiff was not entitled to back pay for eight

months in 2013 and three summer months in years 2014, 2015, and 2016.