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PAUL HARRIS v. DEPARTMENT OF CORRECTION

(AC 35971)

Gruendel, Sheldon, and Sullivan, Js.

Argued October 23—officially released December 23, 2014

(Appeal from Superior Court, judicial district of

Hartford, Peck, J.)

Paul Harris, self-represented, the appellant

(plaintiff).

Jennifer P. Bennett, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Ann E. Lynch, assistant attorney general, for

the appellee (defendant).
Opinion

PER CURIAM. The self-represented plaintiff, Paul

Harris, appeals from the trial court’s summary judgment

in favor of the defendant, the Department of Correction.

On appeal, the plaintiff claims that the court improperly

concluded that the evidence he presented did not raise

a genuine issue of material fact with respect to his

allegations thatthe defendant subjected him to discrimination on the basis of his race and color in violation

of the Fair Employment Practices Act,1 General Statutes

§ 46a–60 (a) (1).2 We affirm the judgment of the trial

court.

The following facts and procedural events from the

twelve year history of this case are relevant to this

appeal. The plaintiff, an African-American male, began

his employment as a correction officer with the defendant in October, 1994. On June 27, 2000, two lieutenants

employed by the defendant observed the plaintiff

watching television during his work shift.3 Upon being

questioned by the lieutenants, the plaintiff denied having watched television. As part of a subsequent administrative investigation, the defendant reviewed

surveillance camera footage from the prison that

showed the plaintiff watching television for approximately twenty-two minutes. The plaintiff has reviewed

this videotape footage, but does not possess a copy of

it. On December 28, 2000, after a hearing on this matter,

the plaintiffreceived a thirty day suspension for neglecting his duties and for ‘‘being less than truthful during

an Administrative Inquiry.’’ The letter advising the plaintiff of his suspension informed him that the defendant

takes its employees’ past disciplinary history into

account when issuing reprimands.

In July, 2001, the plaintiff filed administrative complaints with the Equal Employment Opportunity Commission (EEOC) and the Connecticut Commission on

Human Rights and Opportunities (CHRO), alleging that

the defendant discriminated against him on the basis

of his race and color. The CHRO reviewed the merits

of the plaintiff’s complaint and dismissed it on the basis

that there was no reasonable possibility that further

investigation would have resulted in a finding ofreasonable cause. In May, 2002, the CHRO denied the plaintiff’s

request for reconsideration of his case. After the CHRO

signed a release of jurisdiction, the plaintiff commenced

a civil action in the Superior Court, alleging that he had

been subjected to discrimination based upon his race

and color in violation of § 46a-60 (a) (1).

On February 3, 2009, the plaintiff filed a second

amended complaint, which included an additional allegation that his rights under Title VII of the Civil Rights

Act of 1964 (Title VII); 42 U.S.C. § 2000e et seq., had

been violated. The plaintiff then removed the case to

the United States District Court for the District of Con-
necticut. In April, 2009, the District Court granted the

defendant’s motion to remand the case back to the

Superior Court, reasoning that the plaintiff had not

obtained a right-to-sue letter from the EEOC, and, that

even if he had done so, ‘‘an amendment adding a Title

VII claim [to the plaintiff’s complaint] would be barred

as untimely.’’ Harris v.Connecticut Dept. ofCorrection,

United States District Court, Docket No. 3:09CV00265

(AWT) (D. Conn. April 7, 2009). The plaintiff did not

amend the complaint that he had filed in state court

to remove the Title VII allegations. In May, 2009, the

defendant filed an ‘‘Amended Answer and Special

Defense.’’ On February 24, 2012, the court issued a

scheduling order and ordered the parties to participate

in a trial management conference to be held on August

21, 2013.4 Trial was scheduled for August 28, 2013.

On December 13, 2012, the defendant timely filed a

motion for summary judgment and an accompanying

memorandum of law. On August 1, 2013, the court,

Peck, J., granted the defendant’s motion pursuant to

Practice Book § 17-49. In ruling on the summary judgment motion, the court considered the affidavit of Tracy

Butler, the defendant’s human resources director. Butler stated in her affidavit that the plaintiff had received

a suspension of thirty days ‘‘[a]s a result of [his] conduct

on June 27, 2000 and for his subsequent untruthfulness

during the investigation that followed . . . .’’ During

the subsequent investigation of the plaintiff’s conduct,

he ‘‘denied having watched television’’ when questioned

on two separate occasions. Butler also stated that ‘‘[i]n

disciplining employees [pursuant to its progressive discipline guidelines], their past discipline is taken into

account.’’ The plaintiff’s disciplinary history during the

course of his employment with the defendant included

the following incidents: (1) in 1995, leaving his post

prior to the end of his shift; (2) in 1997, failing to report

an arrest and the suspension of his driver’s license; and

(3) in 2000, bringing contraband into the defendant’s

facility. Further, Butler stated that, in the past, employees similarly situated to the defendant ‘‘have received

the same, and harsher punishment, including termination,’’ for engaging in the same misconduct. The court

found that the plaintiff failed (1) to ‘‘present properly

authenticated evidence to refute the defendant’s claim

that its decision to suspend [the] plaintiff for thirty days

was anything otherthan a legitimate business decision,’’

or (2) to ‘‘come forward with evidence of disparate

treatment of similarly situated employees or . . . otherwise [demonstrate] that the defendant is not entitled

to summary judgment in its favor on his claim of race

discrimination.’’ On August 20, 2013, the plaintiff filed

the present appeal.

On appeal, the plaintiff argues that he was subjected

to a punishment that was more severe than those

received by similarly situated white coworkers who

have previously been accused of the same misconduct.
The plaintiff specifically argues that the court improperly (1) violated the terms of its scheduling order by

granting summary judgment in favor of the defendant

before the parties had participated in the trial management conference, and (2) declined to consider whether

the defendant’s refusal to produce an allegedly ‘‘doctored’’ videotape of the incident pursuant to his subpoena request, filed after the parties had briefed and

argued the defendant’s motion for summary judgment,

violated his constitutional rights. We disagree with the

plaintiff’s contentions and conclude that the court properly granted the defendant’s motion for summary

judgment.

‘‘Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

. . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to

the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish

that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents

establishing the existence of such an issue. . . . Once

the moving party has met its burden, however, the

opposing party must present evidence that demonstrates the existence of some disputed factual issue.

. . . It is not enough, however, for the opposing party

merely to assert the existence of such a disputed issue.

Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court

under Practice Book § [17-45]. . . . Our review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn.

297, 305, 999 A.2d 700 (2010).

In granting the defendant’s motion for summary judgment, the court identified the proper framework for the

burden of production of evidence and the burden of

persuasion in an employment discrimination case.

‘‘First, the [plaintiff] must establish a prima facie case

of discrimination. . . . In order to establish a prima

facie case, the [plaintiff] must prove that: (1) he is in

the protected class;(2) he was qualified forthe position;

(3) he suffered an adverse employment action; and (4)

. . . the adverse action occurred under circumstances

giving rise to an inference of discrimination. . . . Once

the [plaintiff] establishes a prima facie case, the [defendant] then must produce legitimate, nondiscriminatory

reasons for its adverse employment action. . . . This

burden is one of production, not persuasion; it can

involve no credibility assessment. . . .

‘‘After the plaintiff has established a prima facie case,
and the defendant has produced evidence of a legitimate, nondiscriminatory reason for the employment

action, [t]he plaintiff retains the burden of persuasion.

[The plaintiff] now must have the opportunity to demonstrate that the [defendant’s] proffered reason was not

the true reason for the employment decision. This burden now merges with the ultimate burden of persuading

the court that [the plaintiff] has been the victim of

intentional discrimination. [The plaintiff] may succeed

in this either directly by persuading the court that a

discriminatory reason more likely motivated the [defendant] or indirectly by showing that the [defendant’s]

proffered explanation is unworthy of credence. . . .

Employment discrimination therefore can be proven

either directly, with evidence that the [defendant] was

motivated by a discriminatory reason, or indirectly, by

proving that the reason given by the [defendant] was

pretextual.’’ (Citations omitted; emphasis omitted;

internal quotation marks omitted.) Jacobs v. General

Electric Co., 275 Conn. 395, 400–401, 880 A.2d 151

(2005); see also McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). With

this background in mind, we turn to the plaintiff’s claim

in the present case.

Our examination of the record and the briefs of the

parties persuades us that the judgment of the court

should be affirmed. Viewing the evidence in the light

most favorable to the plaintiff; see Bonington v. Westport, supra, 297 Conn. 305; we conclude that the court

properly granted the defendant’s motion for summary

judgment because the plaintiff did not establish a prima

facie case of discrimination in violation of § 46a-60 (a)

(1). Specifically, there is no genuine issue of material

fact as to the fourth prong required for a prima facie

claim of discrimination. The plaintiff did not offer evidence adequate to support his allegation that his suspension occurred under circumstances giving rise to

an inference of discrimination. See Jacobs v. General

Electric Co., supra, 275 Conn. 400. The plaintiff failed to

demonstrate that George Anderson, a white correction

officer who received a five day suspension for watching

television while on duty, was ‘‘similarly situated’’ to

him.5 Unlike the plaintiff, Anderson admitted to committing the offense in question. The plaintiff did not proffer

any evidence to attempt to demonstrate that Anderson

had a disciplinary history that was comparable to his

own. The plaintiff, accordingly, fails to raise a genuine

issue of material fact as to the existence of circumstances surrounding his suspension that give rise to an

inference of discrimination. We conclude that the court

properly rendered summary judgment in favor of the

defendant.

The judgment is affirmed.

1

In his second amended complaint, the plaintiff claimed that the defendant

discriminated against him based on his race and color in violation of General

Statutes § 46a-60 (a) (1) and Title VII of the Civil Rights Act of 1964 (Title

VII), 42 U.S.C. § 2000e et seq. The court’s summary judgment stated that
‘‘the plaintiff has failed to produce evidence that supports a prima facie

case of race discrimination’’ under § 46a-60 (a) (1) or Title VII. ‘‘[I]t is . . .

well established that [w]e look to federal law for guidance on interpreting

state employment discrimination law, and the analysis is the same under

both [the Fair Employment Practices Act and Title VII].’’ (Internal quotation

marks omitted.) Lyon v. Jones, 291 Conn. 384, 407, 968 A.2d 416 (2009).

The plaintiff, however, did not advance any arguments in his appellate brief

or during oral argument that his rights under Title VII were violated. ‘‘Where

the parties cite no law and provide no analysis of their claims, we do not

review such claims.’’ (Internal quotation marks omitted.) Jackson v. Water

Pollution Control Authority, 278 Conn. 692, 711, 900 A.2d 498 (2006).

‘‘Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of

procedural and substantive law.’’ (Internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn. 563, 570, 877 A.2d 761

(2005). This court, accordingly, declines to review the plaintiff’s Title VII

claim.

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

discriminatory practice in violation of this section: (1) For an employer, by

the employer or the employer’s agent, except in the case of a bona fide

occupational qualification or need, to refuse to hire or employ or to bar or

to discharge from employment any individual or to discriminate against

such individual in compensation or in terms, conditions or privileges of

employment because of the individual’s race, color, religious creed, age,

sex, gender identity or expression, marital status, national origin, ancestry,

present or past history of mental disability, intellectual disability, learning

disability or physical disability, including, but not limited to, blindness. . . .’’

3 Department of Correction Administrative Directive 2.17, effective March

15, 2000, strictly prohibits ‘‘[u]nauthorized distractions while on duty,’’

including the use of televisions.

4 At oral argument before this court, the plaintiff stated that ‘‘on August

13, 2013, there would be a hearing [to be held before Judge Domnarski]

where [he] would decide what evidence would be admissible and would

not be admissible; that never happened.’’ The plaintiff also stated that the

hearing would be held at ‘‘2:30 [p.m.] that day.’’ Our review of the record

does not reveal an evidentiary hearing that was scheduled to be held on

August 13, 2013. It appears that the plaintiff is referring to the trial management conference scheduled for August 21, 2013, which never occurred

because the court granted summary judgment in favor of the defendant on

August 1, 2013.

5 Anderson’s five day suspension was laterreduced to a one day suspension

pursuant to a stipulated agreement. The terms of this agreement also provided for the subsequent removal of all information pertaining to Anderson’s

suspension from his personnel file.