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*********************************************** 
THERESA D. S. HEYWARD ET AL. v. JUDICIAL

DEPARTMENT OF THE STATE

OF CONNECTICUT ET AL.

(AC 39232)

DiPentima, C. J., and Keller and Pellegrino, Js.

Syllabus

The plaintiff T, a clerk in a state courthouse, sought to recover damages from

her employer, the defendant Judicial Department, and her supervisor,

the defendant A, for their alleged employment discrimination in violation

of the applicable provision (§ 46a-60 [a]) of the Connecticut Fair Employment Practices Act. In an amended complaint, T claimed, inter alia,

that the defendants had created a hostile work environment and had

discriminated against her on the basis of her race. The trial court dismissed all counts of the complaint as against A and all but the hostile

work environment and race discrimination counts as against the state,

and T appealed to this court, which dismissed the appeal in part and

affirmed the judgment in part. Thereafter, the trial court granted the

state’s motion to strike the remaining two counts of the complaint,

concluding, inter alia, that the complaint failed to allege sufficient facts

to support her claims of hostile work environment and race discrimination. On T’s appeal to this court, held:

1. The trial court properly struck T’s hostile work environment claim; the

conduct alleged by T in her complaint was not sufficiently severe or

pervasive so as to alter the conditions of her employment and to create

a hostile work environment, as T alleged only two instances of racial

remarks, with one of those remarks having been made toward a third

person, and two instances of inappropriate conduct alleged to have

occurred within a one year span did not meet the high standard of

severe and pervasive, and the remainder of T’s allegations concerned

routine workplace matters, such as requests for time off, lunch breaks,

performance evaluations and favoritism, which were not unreasonable

conditions to be subjected to in the employment context.

2. The trial court properly struck T’s claim of race discrimination, T having

pleaded insufficient facts to establish a prima facie case of discrimination; T did not allege any facts demonstrating that she had been subjected

to an adverse employment action by her employer, as her allegations

that A had placed a disciplinary e-mail in her personnel file and had

yelled at her in front of coworkers and members of the public for having

given incorrect information did not constitute an adverse employment

action in the absence of evidence showing that T had been terminated,

demoted or given diminished responsibilities, or that she suffered a

decrease in salary or material loss in benefits.

Argued October 10—officially released December 19, 2017

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

Waterbury, where the court, Zemetis, J., granted in part

the defendants’ motion to dismiss, rendered judgment

thereon, and transferred the matter to the judicial district of Hartford; thereafter, the plaintiffs appealed to

this court, which dismissed the appeal in part and

affirmed the judgment in part; subsequently, the court,

Noble, J., granted the named defendant’s motion to

strike, and the plaintiffs appealed to this court; thereafter, the court, Noble, J., granted the named defendant’s motion for judgment and rendered judgment

thereon, and the plaintiffs filed an amended appeal.
Affirmed.

Eddie Z. Zyko, for the appellants (plaintiffs).

Ann E. Lynch, assistant attorney general, with whom,

on the brief, was George Jepsen, attorney general, for

the appellee (named defendant).
Opinion

PELLEGRINO, J. In this action arising out of alleged

workplace discrimination, the plaintiff Theresa D. S.

Heyward appeals from the judgment of the trial court

rendered in favor of the defendant Judicial Department

of the state of Connecticut.1 On appeal, the plaintiff

claims that the court erred in granting the defendant’s

motion to strike her hostile work environment and

racial discrimination claims. We disagree and, accordingly, affirm the judgment of the trial court.

In Heyward v. Judicial Department, 159 Conn. App.

794, 797–98, 124 A.3d 920 (2015), this court set forth

the following undisputed facts and procedural history:

‘‘[The plaintiff], who is African-American, was

employed as an administrative clerk in the clerk’s office

for the Superior Court in Meriden. At all relevant times,

she was the only nonwhite employee working in the

Meriden clerk’s office.

‘‘On July 18, 2012, [the plaintiff] filed a complaint with

the Commission on Human Rights and Opportunities

(CHRO), alleging that she had been subjected to harassment, discrimination and denied time off for medical

appointments due to her race and gender, and as retaliation for engaging in protected activities. In her CHRO

complaint, [the plaintiff] named the [defendant] as the

sole respondent. She alleged that her supervisor,

[Robert A.] Axelrod, had subjected her to a hostile work

environment on the basis of her sex and race . . . .

‘‘On March 7, 2013, [the plaintiff] received a release

of jurisdiction letter from the CHRO, authorizing her

to bring an action in the Superior Court for the claims

alleged in her CHRO complaint. On August 8, 2013, [the

plaintiff and her husband]2

filed a six count amended

complaint [in the Superior Court] against the [defendant

and Axelrod]. The first five counts were brought by

[the plaintiff] against [the defendant and Axelrod], and

alleged, respectively, creation of a hostile work environment, race based discrimination, disability discrimination, negligent infliction of emotional distress, and

defamation. . . .

‘‘The [defendant] moved to dismiss the amended complaint on August 14, 2013, arguing that the court lacked

subject matter jurisdiction to hear the case for a number

of reasons. With respect to the [defendant], the court

granted the motion to dismiss . . . [as to] counts

[three] four, five, and six . . . .’’ (Footnotes added

and omitted.)

On February 21, 2014, the plaintiff appealed from

the court’s dismissal of the latter four counts of her

amended complaint. On September 15, 2015, this court

dismissed the appeal as to the defendant for lack of

subject matter jurisdiction, concluding that the plaintiff

had not appealed from a final judgment. See id., 805.

While that appeal was pending, the defendant moved
to strike the remaining two counts of the plaintiff’s

amended complaint, alleging hostile work environment

and race discrimination. On December 10, 2015, the

plaintiff filed her memorandum in opposition to the

defendant’s motion to strike. On April 12, 2016, the

court issued a memorandum of decision granting the

defendant’s motion to strike on the ground that the

plaintiff’s amended complaint did not allege sufficient

facts to support claims of hostile work environment or

race discrimination, and, in the alternative, that the

plaintiff’s memorandum in opposition was inadequately

briefed.3 This appeal followed.4 Additional facts will be

set forth as necessary.

The plaintiff claims that the court improperly struck

her hostile work environment and race discrimination

claims and contends that she is ‘‘entitled to the broadest

construction of the allegations of the amended complaint without [formulaic words] being required.’’ We

disagree and conclude that the plaintiff has pleaded

insufficient facts to state a claim of hostile work environment or race discrimination.

We first set forth the appropriate standard of review

in an appeal from the granting of a motion to strike.

‘‘Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no

factual findings by the trial court, our review of the

court’s ruling . . . is plenary.’’ (Internal quotation

marks omitted.) Amato v. Hearst Corp., 149 Conn. App.

774, 777, 89 A.3d 977 (2014). ‘‘The role of the trial court

[is] to examine the [complaint], construed in favor of

the [plaintiff], to determine whether the [pleading party

has] stated a legally sufficient cause of action.’’ (Internal

quotation marks omitted.) Szczapa v. United Parcel

Service, Inc., 56 Conn. App. 325, 328, 743 A.2d 622,

cert. denied, 252 Conn. 951, 748 A.2d 299 (2000). ‘‘It is

fundamental that in determining the sufficiency of a

complaint challenged by a defendant’s motion to strike,

all well-pleaded facts and those facts necessarily

implied from the allegations are taken as admitted. . . .

For the purpose of ruling upon a motion to strike, the

facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. . . .

A motion to strike is properly granted if the complaint

alleges mere conclusions of law that are unsupported by

the facts alleged.’’ (Internal quotation marks omitted.)

Amato v. Hearst Corp., supra, 777–78.

The following additional facts are necessary for our

discussion. Our decision in the plaintiff’s prior appeal

summarizes the well-pleaded facts set forth in paragraphs nine and ten of the amended complaint as follows: ‘‘Axelrod allegedly told an African-American

police officer that he ‘must be working hard’ because he

was ‘black.’ Margaret Malia, [the plaintiff’s] coworker,

allegedly stated that she ‘did not believe in interracial

relationships . . . .’ [The plaintiff] was also denied
vacation time and medical leave because of ‘operational

need,’ even though Axelrod routinely granted other

employees requests for time off. Axelrod yelled at [the

plaintiff] in front of coworkers and members of the

public, and interrupted [the plaintiff’s] conversations,

both during work and while she was on breaks, to

discuss work-related matters. [The plaintiff] felt that

Axelrod showed Malia ‘preferential treatment’ at her

expense. Axelrod placed a ‘defamatory, accusatory and

baseless’ e-mail in [the plaintiff’s] personnel file. [The

plaintiff] believed that the state did not do enough to

protect her from the favoritism that Axelrod showed

other employees.’’ Heyward v. Judicial Department,

supra, 159 Conn. App. 798 n.3.

In granting the defendant’s motion to strike, the court

stated: ‘‘[The plaintiff] has not asserted in her objection

that in fact the conduct alleged in her complaint created

a workplace ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of [her] employment

and create an abusive working environment.’ Brittel v.

Dept. of Correction, [247 Conn. 148, 166–67, 717 A.2d

1254 (1998)]. The court does not find that such has

been alleged. Similarly, the plaintiff has not objected

to the defendant’s motion to strike on the ground that

her complaint in fact alleges an adverse employment

action as a consequence of the state’s conduct as is

required to state a claim for [race] discrimination.

Buster v. Wallingford, [557 F. Supp. 2d 294 (D. Conn.

2008)]. A review of the complaint indicates no such

pleading.’’

With these factual allegations and legal principles

in mind, we address the sufficiency of the plaintiff’s

pleadings with respect to her hostile work environment

and race discrimination claims.

I

We first address the plaintiff’s hostile work environment claim. The plaintiff, in count one of her amended

complaint, alleges the following: ‘‘The conduct of the

[defendant and Axelrod] created a hostile work environment for [the plaintiff] in violation of the Connecticut

Fair Employment Practices Act, [General Statutes

§ 46a-51 et seq.] insofar as the conduct was sufficiently

severe and pervasive so as to alter the terms and conditions of her employment and . . . Axelrod’s conduct

was egregiously not in compliance with the pertinent

law/regulations/policies he was charged with abiding

by/enforcing that the defendant . . . did not, or

improperly so, train him to do/oversee him.’’ The plaintiff contends that the court improperly struck this count

because she pleaded in accordance with Brittel v. Dept.

of Correction, supra, 247 Conn. 166–67. We disagree

and conclude that the facts alleged by the plaintiff are

not sufficiently severe or pervasive so as to alter the

conditions of her employment and to create a hostile
work environment.

We begin by setting forth the applicable legal framework. General Statutes § 46a-60 (a) (1) provides in relevant part: ‘‘It shall be a discriminatory practice . . .

[f]or an employer, by the employer or the employer’s

agent . . . to discriminate against such individual in

compensation or terms, conditions or privileges of

employment because of the individual’s race . . . .’’ In

order for the plaintiff ‘‘[t]o establish a claim of hostile

work environment, [under § 46a-60 (a) (1)] the workplace [must be] permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe

or pervasive to alter the conditions of the [plaintiff’s]

employment and create an abusive working environment . . . . In order to be actionable . . . [the working] environment must be both objectively and

subjectively offensive, one that a reasonable person

would find hostile or abusive, and one that the [plaintiff]

in fact did perceive to be so. . . . [W]hether an environment is sufficiently hostile or abusive [is determined]

by looking at all the circumstances . . . .’’ (Citations

omitted; internal quotation marks omitted.) Brittell v.

Dept. of Correction, supra, 247 Conn. 166–67; see also

Patino v. Birken Mfg. Co., 304 Conn. 679, 699, 41 A.3d

1013 (2012). ‘‘[T]here must be more than a few isolated

incidents of racial enmity . . . meaning that [i]nstead

of sporadic racial slurs, there must be a steady barrage

of opprobrious racial comments . . . . Thus, whether

racial slurs constitute a hostile work environment typically depends on the quantity, frequency, and severity

of those slurs . . . considered cumulatively in order to

obtain a realistic view of the work environment . . . .’’

(Internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453 (2015).

In the present case, the plaintiff alleged only two

instances of racial remarks, with one of those remarks

being made toward a third person. ‘‘Although not bound

by it, we review federal precedent concerning employment discrimination for guidance in enforcing our own

antidiscrimination statutes.’’ (Internal quotation marks

omitted.) Thomson v. Dept. of Social Services, 176

Conn. App. 122, 131, 169 A.3d 256, cert. denied, 327

Conn. 962, A.3d (2017). The United States

Supreme Court has held that the ‘‘mere utterance of an

. . . epithet which endangers offensive feelings in an

employee . . . does not sufficiently affect the conditions of employment to implicate Title VII [of the Civil

Rights Act of 1964].’’ (Citation omitted; internal quotation marks omitted.) Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).

Furthermore, two instances of inappropriate conduct

within a one year span do not meet the high standard

of severe and pervasive. See, e.g., Quinn v. Green Tree

Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (holding

that two isolated incidents of inappropriate sexual conduct not sufficient to establish liability for hostile work
environment); Stembridge v. New York, 88 F. Supp. 2d

276, 286 (S.D.N.Y. 2000) (holding that seven instances

over three year span, which included indirect racial

remarks, direct racial slurs, and hanging of black doll

near plaintiff’s workstation, were insufficient to support

finding of hostile work environment); Carter v. Cornell

University, 976 F. Supp. 224, 232 (holding that six racial

remarks over three years did not constitute hostile work

environment), aff’d, 159 F.3d 1345 (2d Cir. 1998). Additionally, the remainder of the plaintiff’s allegations concern routine workplace matters, such as requests for

time off, lunch breaks, performance evaluations and

favoritism. These are not unreasonable conditions to

be subjected to in the employment context. See Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752

(2000) (‘‘individuals reasonably should expect to be

subject to other vicissitudes of employment, such as

workplace gossip, rivalry, personality conflicts and the

like’’). We therefore conclude that the conduct alleged

by the plaintiff is not sufficiently severe or pervasive

to establish a claim of hostile work environment, and,

accordingly, the trial court properly struck the plaintiff’s hostile work environment claim.

II

We next address the sufficiency of the plaintiff’s race

discrimination claim. The plaintiff, in count two of her

amended complaint, alleges the following: ‘‘The conduct of the defendants was race discrimination against

[the plaintiff] in violation of the Connecticut Fair

Employment Practices Act and . . . Axelrod’s conduct

was egregiously not in compliance with the pertinent

law/regulations/policies he was charged with abiding

by/enforcing that the defendant . . . did not, or

improperly so, train him to do/oversee him.’’ The plaintiff contends that this language, when read in conjunction with paragraphs nine and ten, ‘‘manifestly means

that an adverse employment action . . . has been

alleged . . . .’’ We disagree and conclude that the plaintiff did not allege any facts demonstrating that she was

subjected to an adverse employment action by the

defendant.

The following legal principles guide our analysis of

the plaintiff’s discrimination claim. ‘‘The [legal] framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was

adapted from the United States Supreme Court’s decision in McDonnell Douglass Corp. v. Green, 411 U.S.

792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its

progeny.’’5

(Internal quotation marks omitted.) Tomick

v. United Parcel Services, Inc., 157 Conn. App. 312,

325, 115 A.3d 1143 (2015), aff’d, 324 Conn. 470, 153 A.3d

615 (2016). Accordingly, under our state law, in order

for the plaintiff to prevail on her claim of race discrimination based on disparate treatment, she must first

establish a prima facie case of discrimination. ‘‘To
establish a prima facie case of discrimination . . . the

[plaintiff] must demonstrate that (1) [she] is in a protected class; (2) [she] was qualified for the position; (3)

[she] suffered an adverse employment action; and (4)

that the adverse action occurred under circumstances

giving rise to an inference of discrimination.’’ (Emphasis added; internal quotation marks omitted.) Jones v.

Dept. of Children & Families, 172 Conn. App. 14, 25,

158 A.3d 356 (2017). ‘‘A plaintiff sustains an adverse

employment action if he or she endures a materially

adverse change in the terms and conditions of employment. . . . To be materially adverse a change in working conditions must be more disruptive than a mere

inconvenience or an alteration of job responsibilities.

. . . [A]n adverse employment action [has been

defined] as a significant change in employment status,

such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a significant change in benefits.’’ (Citation

omitted; internal quotation marks omitted.) Amato v.

Hearst Corp., supra, 149 Conn. App. 781; id., 783 (holding that employee failed to allege adverse employment

action as result of being placed on performance

improvement plan because she did not additionally

allege that her salary or benefits had decreased, or that

there was change in employment status).

In the present case, the plaintiff alleges that Axelrod

placed a disciplinary e-mail in her personnel file and

also yelled at her in front of coworkers and members

of the public for giving incorrect information. Federal

courts, however, have held that a disciplinary letter

does not constitute a materially adverse employment

action.6 See, e.g., Chang v. Safe Horizons, 254 Fed.

Appx. 838, 839 (2d Cir. 2007) (holding that oral and

written warnings do not constitute adverse employment

actions); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.

2006) (‘‘[t]he application of the [employer’s] disciplinary

policies to [the employee], without more, does not constitute [an] adverse employment action’’); Mattern v.

Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997)

(holding that disciplinary filings and supervisor’s reprimands are not adverse employment actions), cert.

denied, 522 U.S. 932, 118 S. Ct. 336, 139 L. Ed. 2d 260

(1997).

The reprimands and admonishments alleged by the

plaintiff, in the absence of evidence showing that she

was terminated, demoted or given diminished responsibilities, or that she suffered a decrease in salary or

material loss in benefits, do not constitute an adverse

employment action. We therefore conclude that the trial

court properly struck the plaintiff’s race discrimination claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 On August 8, 2013, Theresa Heyward and her husband, the plaintiff Kevin
Heyward, filed a six count amended complaint against the defendants, the

Judicial Department of the state of Connecticut (state) and Robert A. Axelrod, the chief clerk for the judicial district of New Haven at Meriden. The

first five counts were brought by Theresa Heyward against the defendants,

and Kevin Heyward alleged a derivative cause of action for loss of consortium

in count six. Thereafter, the defendants filed a motion to dismiss the complaint. On February 4, 2014, the trial court dismissed all counts as to Axelrod,

and counts three through six as to the state. On appeal, this court dismissed

the appeal as to the state for lack of subject matter jurisdiction and affirmed

the judgment as to Axelrod. See Heyward v. Judicial Department, 159

Conn. App. 794, 805, 124 A.3d 920 (2015). Consequently, Axelrod is not a

party to this appeal, and, therefore, all references in this opinion to the

defendant are to the state. Furthermore, although initially raised in their

preliminary statement of the issues, the plaintiffs have not briefed any

claimed error regarding the trial court’s February 4, 2014 ruling on the

motion to dismiss. Therefore, the sole issue on appeal is whether the trial

court properly granted the state’s motion to strike the first and second counts

of the amended complaint. Accordingly, Kevin Heyward is not involved in

this appeal, and, therefore, all references in this opinion to the plaintiff are

to Theresa Heyward.

2 See footnote 1 of this opinion.

3 Because we conclude that the plaintiff’s amended complaint was legally

insufficient and this is an adequate basis on which to affirm the judgment

of the trial court, we need not address the court’s alternative basis for

granting the defendant’s motion to strike.

4 On May 19, 2016, the plaintiff filed her appeal. On May 25, 2016, the

defendant filed a motion for judgment. On June 6, 2016, the court granted

the defendant’s motion and rendered judgment in the defendant’s favor. On

June 16, 2016, the plaintiff amended her appeal to include the final judgment

rendered on the stricken counts, effectively curing the jurisdictional defect.

See Practice Book § 61-9 (‘‘[i]f the original appeal is dismissed for lack of

jurisdiction, the amended appeal shall remain pending if it was filed from

a judgment or order from which an original appeal properly could have

been filed’’).

5

‘‘[D]isparate treatment simply refers to those cases where certain individuals are treated differently than others. . . . The principal inquiry of a

disparate treatment case is whether the plaintiff was subjected to different

treatment because of his or her protected status.’’ (Citation omitted; footnote

omitted; internal quotation marks omitted.) Levy v. Commission on Human

Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996).

6 A review of our case law does not provide any controlling authority. We

therefore turn to federal precedent for guidance in reaching our conclusion.

See Thomson v. Dept. of Social Services, supra, 176 Conn. App. 131.