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*********************************************** 
STEPHANIE DANNER v. COMMISSION ON HUMAN

RIGHTS AND OPPORTUNITIES ET AL.

(AC 44194)

Alvord, Alexander and Vertefeuille, Js.

Syllabus

The plaintiff filed an affidavit of illegal discriminatory practice with the

defendant Commission on Human Rights and Opportunities, alleging

that the defendant A Co. wrongfully terminated her employment. Following an assignment of the matter to the commission’s Office of Public

Hearings, a human rights referee granted A Co.’s motion for summary

judgment, finding that there was no genuine issue of material fact. The

plaintiff and the commission separately appealed the referee’s decision

granting the motion for summary judgment to the Superior Court. The

plaintiff claimed that genuine issues of material fact existed. The trial

court consolidated the appeals, sustained the consolidated appeal and

remanded the matter for a trial before the Office of Public Hearings,

concluding that the referee improperly rendered summary judgment

because A Co. did not meet its burden of establishing that there were

no genuine issues of material fact. On A Co.’s appeal to this court,

held that the trial court properly sustained the consolidated appeal and

remanded the matter for a hearing: the court properly considered the

plaintiff’s affidavit as competent evidence in opposition to A Co.’s motion

for summary judgment as the plaintiff’s affidavit of discriminatory practice was sworn and was properly considered pursuant to the applicable

rule of practice (§ 17-49); moreover, the court properly conducted a

plenary review of the record in considering whether genuine issues

of material fact existed, as the deferential standard used to review

administrative fact-finding did not extend to the determination of

whether genuine issues of material fact existed in the summary judgment

context; furthermore, the court did not err in considering whether genuine issues of material fact existed, as the record contained contradictory

information, including a sworn statement by an employee of A Co. that

the plaintiff’s job duties required her to be physically present at the

workplace and the plaintiff’s sworn statement that she had received a

workplace accommodation to work from home, and the referee, rather

than identifying factual disputes raised by the competing affidavits,

improperly decided the factual question by crediting the statements

made in the affidavit of the A Co. employee and improperly determined

that there were no genuine issues of material fact.

Argued March 2—officially released October 12, 2021

Procedural History

Appeals from the decision by a human rights referee

for the named defendant rendering summary judgment

in favor of the defendant Atos IT Solutions and Services,

Inc., and denying the plaintiff’s motion for reconsideration, brought to the Superior Court in the judicial district of New Britain, where the court, Cordani, J., consolidated the appeals; thereafter, the court, Cordani,

J. rendered judgment sustaining the appeal and

remanding the matter to the named defendant for trial,

from which the defendant Atos IT Solutions and Services, Inc., appealed to this court. Affirmed.

Martin J. Regimbal, pro hac vice, with whom was

Elizabeth F. Flynn, for the appellant (defendant Atos

IT Solutions and Services, Inc.).
Zachary T. Gain, for the appellee (plaintiff).

Michael E. Roberts, for the appellee (named defendant).

William Tong, attorney general, Clare E. Kindall,

solicitor general, and Colleen B. Valentine and Matthew

F. Larock, assistant attorneys general, filed a brief for

the state of Connecticut as amicus curiae.
Opinion

ALVORD, J. This appeal arises out of an action by

the plaintiff, Stephanie Danner, in which a human rights

referee (referee) from the Office of Public Hearings

(office) of the defendant Commission on Human Rights

and Opportunities (commission) rendered summary

judgment in favor of the defendant Atos IT Solutions

and Services, Inc. (Atos). Thereafter, the plaintiff and

the commission appealed to the Superior Court,1 which

consolidated the appeals. The court, following oral

argument, sustained the appeal and remanded the matter to the office for trial. Atos appeals from the judgment

of the Superior Court sustaining the appeal and

remanding the matter to the office for trial. On appeal,

Atos claims that the Superior Court erred in considering

the plaintiff’s affidavit of illegal discriminatory practice

as evidence in opposition to Atos’ motion for summary

judgment and in relying on the averments contained in

the affidavit to determine that genuine issues of material

fact existed. Atos also claims that the Superior Court

erred in failing to afford deference to the referee’s decision.2 We affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to this appeal. On December 5, 2016, the plaintiff

filed an affidavit of illegal discriminatory practice with

the commission. In her affidavit, the plaintiff averred:

‘‘[Atos] has an office located at 7 McKee Place, Cheshire,

Connecticut 06410. . . . [Atos] employs [fifteen] or

more individuals. . . . [Atos] employed [the plaintiff].

. . . [Atos] hired [the plaintiff] in May, 2001. . . . [The

plaintiff’s] original job position was technical services

manager. . . . On or about August 8, 2016, [Atos] transferred [the plaintiff] to help desk agent. . . . [Atos]

employs David Hamilton. . . . Hamilton is a supervisory employee. . . . Hamilton supervised [the plaintiff]. . . . [The plaintiff] has a disability. . . . Specifically, [the plaintiff] suffers from bipolar disorder and

anxiety disorder. . . . [Atos] was aware of the mental

disability. . . . [The plaintiff] had workplace accommodations for her disability. . . . The workplace

accommodation was working from home. . . . The

workplace accommodation was finite leaves of

absences (continuous and intermittent). . . . In June,

2016, [the plaintiff] took a continuous leave of absence.

The leave of absence went from June 14, 2016 through

August 19, 2016. . . . The leave of absence was disability related. . . . The 2016 leave of absence was . . .

protected [by the Family and Medical Leave Act of 1993

(FMLA), 29 U.S.C. § 2601 et seq. (2012)]. . . . Following her return from the FMLA protected 2016 leave of

absence, [Atos] asked [the plaintiff] to submit documentation in support of her ongoing work from home

accommodation. . . . [The plaintiff] complied with

[Atos’] request and supplied documentation from her

physician. . . . On October 17, 2016, [Atos] terminated
[the plaintiff’s] employment. . . . [Atos] told [the plaintiff] that the termination was due to a reorganization

and that her ‘job was no longer available’. . . . In October, 2016, [Atos] employed about [forty] help desk

employees. . . . [The plaintiff] is unaware of any other

help desk employee terminated at the time [the plaintiff]

was terminated. . . . There were two new help desk

employees training for the position prior to [Atos] terminating [the plaintiff’s] employment. . . . [Atos’] website had the help desk agent II job posted as being open

in Cheshire, Connecticut at around the same time that

it terminated [the plaintiff’s] employment. . . . [The

plaintiff] can perform the essential functions of the job

with or without a reasonable accommodation. . . .

Any and all excuses to be offered by [Atos] to explain

the termination decision would be a pretext to mask

discrimination and/or retaliation. . . . [The plaintiff]

charges [Atos] with disability discrimination, failure to

accommodate and retaliation.’’

On October 3, 2017, the matter was sent to the office

for a public hearing through the early legal intervention

program. On December 26, 2018, Atos filed a motion for

summary judgment, in which it argued that the plaintiff

could not establish a prima facie case of disability discrimination. Specifically, Atos argued that the plaintiff

was not qualified to perform the functions of her position and that her employment was not terminated

because of her disability. It further argued that, even

if she could establish a prima facie case of discrimination, it had articulated a legitimate, nondiscriminatory

reason for terminating her employment and that she

could not demonstrate that such reason was pretextual.

With respect to the plaintiff’s claim of failure to provide

reasonable accommodations for her disability, Atos

argued that the plaintiff’s only request, to work from

home, was not a reasonable accommodation because

being present in the office was an essential function

that Atos was not required to waive. With respect to

the plaintiff’s claim of retaliation, Atos argued that there

was no evidence indicating a causal connection

between her requests for leave and to work from home

and the termination of her employment.

In support of its motion, Atos submitted affidavits of

Laurie Onderick, who was employed by Atos as a human

resource specialist responsible for leave administration,3 and Hamilton, who was employed by Atos as

service desk manager and was the plaintiff’s manager

throughout her employment, along with evidentiary

exhibits attached to both affidavits. In his affidavit,

Hamilton averred, inter alia, the following: ‘‘I managed

[the plaintiff] for her entire employment with Atos

beginning in 2001, when she became an employee of

Atos as a service desk manager level I. In this position,

she supervised service desk employees. . . . Due to

the loss of numerous Atos clients and due to the fact

that many of Atos’ IT help desk positions, including
those who reported to [the plaintiff], were being offshored to the Philippines in a cost saving effort, [the

plaintiff’s] managerial position was eliminated in

August, 2016, as her supervisory role was no longer

necessary. . . . The offshoring efforts began approximately seven years ago. . . . In order to avoid terminating her altogether, I reassigned [the plaintiff] as a

service desk technician tasked with providing computer

support services to Cooper University Health Center

(‘Cooper Hospital’), an Atos client. . . . In this role

[the plaintiff] was expected to answer the helpline telephones, receive, analyze, and resolve client issues, and

escalate issues when necessary. The problem solving

aspects of her position required her to learn new things

every day and to retain that knowledge. . . . I assumed

the duty of supervision over any remaining U.S. based

service desk technicians working out of the Cheshire,

Connecticut office. . . . While [the plaintiff] was on

FMLA leave in the summer of 2016, she and I communicated via instant messages. It was then that she

informed me that her alleged bipolar and anxiety disorders had severely impacted her short term memory.

Specifically, one of her messages to me read, ‘Honestly

I don’t know what you guys are going to do with me.

I have nobody to manage and I’d do a shitty job if I

did.’ She further told me that she ‘was trying to cut

down on the Klonopin but it’s at a why bother now. [Her]

short term memory is really bad and [it’s] permanent.’

Exhibit I to this affidavit is a true and accurate copy

of my text conversation with [the plaintiff]. . . .

‘‘As a service desk technician on the Cooper Hospital

account, it was critical that [the plaintiff] physically

present to Atos’ Cheshire, Connecticut office where the

account was managed. Onsite attendance was required

as problems had to be quickly resolved among the technicians and the managers to minimize impact to the

client’s services. Managers, like myself, had to be able to

immediately and directly communicate with the service

desk technicians assigned to us in case of failures to

critical hospital systems. Delays in resolving such IT

issues can literally have life or death implications. . . .

For example, Atos was responsible for the computers

located [in] Cooper Hospital’s operating rooms. If these

computers went down during surgery or for an

extended period of time, the results could be dire. The

urgent and fast pace[d] nature of the services the service

desk technicians had to provide in conjunction with

the managers required service desk technicians to physically be in the office. Thus, it was an essential job

function for service desk technicians assigned to the

Cooper Hospital account to work out of the Cheshire

office as opposed to remotely. All of the U.S. based

service desk technicians assigned to the account did

so. . . . Similarly, all of the Philippines based service

desk technicians assigned to the Cooper Hospital

account also worked together out of a local office as
opposed to individuals working remotely from home.

For the same reasons, none of these foreign based service desk technicians assigned to the Cooper Hospital

[account] worked from home. . . . However, after

September 14, 2016, [the plaintiff] only physically

appeared for less than a single shift at the Cheshire

office. . . .

‘‘On October 9, 2016, I was informed that [the plaintiff’s] physician had ordered that she work from home

on a permanent basis. . . . Because such restriction

could not be accommodated due to the fact that [the

plaintiff’s] position required that she present for work,

l made the decision to terminate her. . . . Her last day

of employment with Atos was October 17, 2016. . . .

My decision to terminate [the plaintiff] was not based

on her alleged bipolar disorder and anxiety, nor her

requests to work from home or requests for leave.

Instead, it was based solely on the fact that she could

not perform an essential function of her job—physically

presenting for work and she conceded she could not

perform her duties. . . . On or around the day I terminated [the plaintiff], there was an online posting for a

help desk analyst II position. However, the posting was

in error and was unposted approximately one week

later as the service desk was no longer hiring full time

employees at this time. Thus, the position ultimately

went unfilled by a full time employee. . . . I was laid

off on November 7, 2017, as part of the same costs

saving initiative that resulted in the elimination of [the

plaintiff’s] original managerial position.’’

On January 4 and 29, 2019, respectively, the commission and the plaintiff filed separate objections to Atos’

motion for summary judgment, in which they both

argued that the referee is not authorized to render summary judgment in the administrative proceedings before

the office. The plaintiff also objected on the ground

that the early legal intervention decision to send the

matter directly to public hearing necessarily meant that

there had been established the existence of genuine

issues of material fact. Atos filed replies to both objections.

On February 22, 2019, the referee granted Atos’

motion for summary judgment. The referee first determined that she had the authority to render summary

judgment in the administrative proceedings before the

office. The referee next rejected the plaintiff’s argument

that the fact that her complaint had been transferred

to the office for a public hearing necessarily established

the existence of genuine issues of material fact.

Ultimately, the referee concluded that Atos had met

its initial burden of demonstrating the absence of any

genuine issues of material fact. Specifically, she stated

that Atos ‘‘ha[d] made an affirmative evidentiary showing that there is not a factual dispute that the [plaintiff’s]

position as a service desk technician required her to
be able to ‘learn new things daily and to maintain such

knowledge in order to receive, analyze, and resolve

client issues, and determine to escalate issues when

necessary.’ ’’ Referencing the plaintiff’s text message to

Hamilton, the referee found that, by the plaintiff’s own

admission, the plaintiff’s ‘‘ability to perform her job

duties was impaired as a result of her short-term memory loss due to the medications she was taking for

bipolar disorder and anxiety.’’ The referee further concluded that Atos had made an evidentiary showing that

there was no factual dispute that the plaintiff’s job

duties required her to be present at Atos’ Cheshire office

and that her presence at the office was essential to her

position. The referee concluded that Atos had met its

initial burden of demonstrating the absence of any genuine issues of material fact both that the plaintiff was

unable to perform the essential functions of her position

and that an indefinite work from home accommodation

was not a reasonable accommodation to which the

plaintiff was entitled. Lastly, the referee concluded that

Atos had met its initial burden of demonstrating that

it had a legitimate, nondiscriminatory reason for terminating the plaintiff’s employment.

The referee determined that ‘‘the [plaintiff] failed to

present any concrete evidence demonstrating the existence of a disputed issue of material fact as to whether

the [plaintiff] was able to perform the essential functions of the position, with or without a reasonable

accommodation, to wit, that she was qualified for the

job; whether the requested accommodation was a reasonable one and did not present an undue hardship on

[Atos]; or whether the articulated business reasons for

[Atos’] employment decisions were merely a pretext

for discrimination.’’ Accordingly, the referee concluded

that Atos was entitled to judgment as a matter of law.

As to the plaintiff’s retaliation claim, the referee

determined that Atos was entitled to judgment as a

matter of law after determining that the plaintiff had

not ‘‘countered [Atos’] evidence by calling the tribunal’s

attention to other evidentiary items demonstrating that

the [plaintiff’s] participation in a statutorily protected

activity was a motivating factor in her termination under

the causal connection standard . . . or that [Atos’]

proffered reasons for the [plaintiff’s] termination were

pretextual.’’ (Citations omitted.) Accordingly, the referee granted Atos’ motion for summary judgment as to

all of the plaintiff’s claims.

The plaintiff filed a motion for reconsideration, and

Atos filed an opposition thereto. The motion was denied

on March 20, 2019. Thereafter, the plaintiff appealed

the decision of the referee to the Superior Court, and

the parties briefed their positions. The court heard oral

argument on July 9, 2020.

On July 13, 2020, the court, Cordani, J., issued its

memorandum of decision, in which it concluded that
the referee improperly rendered summary judgment

because Atos had not met its burden of establishing

that there were no genuine issues of material fact. The

court first noted that the plaintiff’s complaint is in the

form of an affidavit and constitutes competent counter

evidence in considering the motion for summary judgment. The court considered the affidavits of the plaintiff

and of Hamilton and identified the following genuine

issues of material fact: whether (1) ‘‘the [plaintiff’s]

employment [was] terminated because of a reorganization and her job [was] no longer . . . available as she

reported that she was told, or because she could not

perform an essential function of the job by being physically present in the office as . . . Hamilton stated’’; (2)

the job posting for the plaintiff’s position was actually

a mistake; (3) two new employees were training for the

plaintiff’s position at the time she was terminated; (4)

the plaintiff already had been granted an accommodation for working from home as she had claimed, and,

if yes, Atos was retracting a previously granted accommodation; (5) being physically present was an essential

job function given that the same job was performed by

people in the United States and in the Philippines, who

presumably coordinate with each other; (6) working

at home was a reasonable accommodation given the

requirements of the position; (7) the plaintiff could perform the essential job functions as she had asserted;

(8) it was a coincidence that the plaintiff’s managerial

position was allegedly eliminated in August, 2016, at

the same time she was making her accommodation

request, given that the offshoring of service desk positions had been ongoing for seven years; and (9) alleged

comments made by the plaintiff in text messages meant

that the plaintiff could not ‘‘ ‘learn new things daily and

maintain such knowledge.’ ’’ The court also identified

as a genuine issue of material fact what the essential

job functions were for the plaintiff’s position.

The court concluded that the referee’s decision contained factual findings that were inappropriate in the

context of a motion for summary judgment. Specifically,

the court stated: ‘‘For instance, the [referee] found that

the [plaintiff] could not perform the essential functions

of her job in the face of the [plaintiff’s] sworn assertion

that she could and in the face of the fact that the [plaintiff] had already been performing her job from home

for some time. Each of the issues of material fact noted

by the court above have been either explicitly or implicitly decided against the [plaintiff] by the [referee] in

arriving at her final decision. The [referee] appears not

to have given any evidentiary weight to the [plaintiff’s]

affidavit/complaint, which is inappropriate in this summary judgment context.’’ Accordingly, the court sustained the appeal and remanded the matter to the office

for a hearing. Thereafter, Atos filed the present appeal.

On appeal, Atos claims that the Superior Court erred

in sustaining the consolidated appeal. First, it argues
that the court erred in considering the plaintiff’s affidavit as competent counter evidence to Atos’ motion for

summary judgment. The plaintiff responds that ‘‘[a]ffidavits are competent counter evidence that a nonmoving party may submit in opposition to a motion for

summary judgment.’’ We agree with the plaintiff.

We first set forth our standard of review. Our review

of the question of whether the Superior Court considered properly the plaintiff’s affidavit as competent evidence in opposition to the motion for summary judgment involves a question of law over which our review

is plenary. See Teodoro v. Bristol, 184 Conn. App. 363,

374–75, 195 A.3d 1 (2018) (issue of whether excerpt

from certified deposition transcript must be separately

certified as such, apart from certification of original

transcript from which it was excerpted, in order to

make it admissible in support of or in opposition to

motion for summary judgment is entitled to plenary

review).

Atos argues that the Superior Court’s determination

that the plaintiff’s affidavit, as a sworn statement, constitutes competent counter evidence in considering a

motion for summary judgment is ‘‘devoid of any supporting authority and is counter to controlling case

law.’’ The only authority cited by Atos, however, discusses the role of the pleadings in framing the issues

for summary judgment. See White v. Mazda Motor of

America, Inc., 313 Conn. 610, 621, 99 A.3d 1079 (2014)

(‘‘[t]he pleadings determine which facts are relevant and

frame the issues for summary judgment proceedings or

for trial’’); TD Bank, N.A. v. Salce, 175 Conn. App. 757,

768–69, 169 A.3d 317 (2017) (‘‘[I]t is not enough . . .

merely to assert the existence of such a disputed issue

. . . [instead] the genuine issue aspect requires the

party to bring forward before trial evidentiary facts,

or substantial evidence outside of the pleadings, from

which the material facts alleged in the pleadings can

warrantably be inferred. . . . Mere statements of legal

conclusions or that an issue of fact does exist are not

sufficient to raise the issue.’’ (Internal quotation marks

omitted.)).

The affidavit of discriminatory practice filed by the

plaintiff is unlike a civil complaint, in that it is sworn

and in the form of an affidavit. Affidavits are properly

considered pursuant to the rule of practice governing

summary judgment motions, Practice Book § 17-49,

which rule the referee expressly identified as governing

her adjudication of Atos’ motion. See Practice Book

§ 17-49 (‘‘[t]he judgment sought shall be rendered 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’’ (emphasis added)); see

also Practice Book § 17-46 (‘‘[s]upporting and opposing

affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the matters stated therein’’). Atos has

provided this court with no authority prohibiting consideration, during summary judgment proceedings, of

attestations contained in a signed and notarized affidavit of illegal discriminatory practice. Accordingly, we

are not persuaded by Atos’ claim.

In the alternative, Atos argues that, even if the attestations of the plaintiff properly were considered, they

were insufficient to create genuine issues of material

fact. Specifically, it contends that the plaintiff’s affidavit

‘‘is conclusory, supported by nothing other than [the

plaintiff’s] rank speculation, and replete with irrelevant

and unsupported allegations.’’

Before addressing whether the record reveals genuine issues of material fact, we turn to the interrelated

argument of Atos that the Superior Court erred in failing

to afford deference to the referee’s decision. It argues

that, ‘‘[i]n finding the complaint created genuine issues

of material fact warranting denial of Atos’ motion for

summary judgment, the Superior Court failed to provide

substantial deference to the [referee’s] findings as to

the impact of the complaint on the motion and merely

substituted its own judgment for that of the [referee].’’

It contends that the Superior Court ‘‘strayed well

beyond its ‘strictly limited’ and ‘very restricted’ role of

simply determining whether the [referee] acted ‘unreasonably, arbitrarily, illegally or in abuse of [her] discretion.’ ’’ We disagree with Atos’ claim.

We first set forth our own standard of review.

‘‘Determining the appropriate standard of review is a

question of law, and as a result, it is subject to plenary

review.’’ Crews v. Crews, 295 Conn. 153, 161, 989 A.2d

1060 (2010).

In rendering her decision, the referee cited the well

established standard for summary judgment set forth

in Practice Book § 17-49. ‘‘[Section] 17-49 provides that

summary judgment shall be rendered forthwith if the

pleadings, affidavits and any other proof submitted

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law. In deciding a motion for summary

judgment, the trial court must view the evidence in the

light most favorable to the nonmoving party. . . . The

party moving for summary judgment has the burden of

showing the absence of any genuine issue of material

fact and that the party is, therefore, entitled to judgment

as a matter of law. . . .

‘‘In ruling on a motion for summary judgment, the

court’s function is not to decide issues of material fact

. . . but rather to determine whether any such issues

exist. . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a
showing that it is quite clear what the truth is, and that

excludes any real doubt as to the existence of any

genuine issue of material fact. . . . Once the moving

party has met its burden [of production] . . . the

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

. . . [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from

which it can be determined, as a matter of law, that a

genuine issue of material fact exists. . . . The presence

. . . of an alleged adverse claim is not sufficient to

defeat a motion for summary judgment.’’ (Citations

omitted; internal quotation marks omitted.) Episcopal

Church in the Diocese of Connecticut v. Gauss, 302

Conn. 408, 421–22, 28 A.3d 302 (2011), cert. denied, 567

U.S. 924, 132 S. Ct. 2773, 183 L. Ed. 2d 653 (2012).

Atos’ contention is that the Superior Court was obligated to afford ‘‘considerable deference’’ to the referee’s

determination that there were no genuine issues of

material fact. In making this argument, Atos relies on

the substantial evidence rule governing judicial review

of administrative fact-finding under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-

166 et seq. It asserts that the referee had ‘‘a ‘substantial

basis of fact’ on which to make her ruling’’ and cites

Rajasekhar v. Commission on Human Rights & Opportunities, Superior Court, judicial district of New Britain,

Docket No. CV-18-5024428-S (January 14, 2020), for the

proposition that ‘‘[a] plaintiff who challenges an agency

decision has the heavy burden of demonstrating that

the department’s factual conclusion lacks substantial

support on the whole record.’’ (Emphasis added; internal quotation marks omitted.) In contrast with the present summary judgment procedure, the factual findings

in Rajasekhar were made by an investigator following

a fact-finding hearing that involved sworn testimony

from the plaintiff and three representatives of the plaintiff’s former employer.4

Id.

We are not persuaded by Atos’ argument that the

deferential standard employed to review administrative

fact-finding extends to the determination of whether

genuine issues of material fact existed in the summary

judgment context. First, we note that, even with respect

to judicial review of administrative agency actions,

‘‘[c]ases that present pure questions of law . . . invoke

a broader standard of review than is . . . involved in

deciding whether, in light of the evidence, the agency

has acted unreasonably, arbitrarily, illegally or in abuse

of its discretion.’’ (Internal quotation marks omitted.)

Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). Second,

with respect to summary judgment in general, ‘‘[i]ssuefinding, rather than issue-determination, is the key to

the procedure. . . . [T]he trial court does not sit as

the trier of fact when ruling on a motion for summary

judgment. . . . [Its] function is not to decide issues of
material fact, but rather to determine whether any such

issues exist.’’ (Internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn. App. 778, 783, 57 A.3d 794 (2012);

see also Teodoro v. Bristol, supra, 184 Conn. App. 374

(‘‘[t]he court’s task in reviewing the parties’ submissions

is not to decide any factual issues they raise, but only

to decide if, in fact, they raise any such factual issues,

as by demonstrating a potential inconsistency or conflict in the admissible evidence concerning one or more

facts upon which the movant’s right to judgment

depends’’ (emphasis in original)).

Finally, it is axiomatic that a reviewing court conducts a plenary review of the record, viewing the evidence in the light most favorable to the nonmoving

party, to determine whether a genuine issue of material

fact exists such that summary judgment was improperly

rendered. See Windsor Federal Savings & Loan Assn.

v. Reliable Mechanical Contractors, LLC, 175 Conn.

App. 651, 660, 168 A.3d 586 (2017); Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn. App. 70, 76, 154

A.3d 55 (2017); Mott v. Wal-Mart Stores East, LP, 139

Conn. App. 618, 625, 57 A.3d 391 (2012). On the basis

of the foregoing legal principles, we conclude that the

deferential standard advocated by Atos does not apply

to the present case and that the Superior Court properly

conducted a plenary review of the record in considering

whether genuine issues of material fact existed.

Having resolved the issue of the Superior Court’s standardof review, we next consider Atos’ argument that

the Superior Court improperly determined that genuine

issues of material fact exist with respect to the plaintiff’s

claims. In accordance with the standard of review previously set forth, we conduct a plenary review of the

record. See Rivera v. CR Summer Hill, Ltd. Partnership, supra, 170 Conn. App. 76.

With respect to the plaintiff’s discrimination and reasonable accommodation claims, the referee concluded

that there were no genuine issues of material fact that

the plaintiff was unable to perform the essential duties

of her position and that a work from home accommodation was not reasonable. Specifically, the referee determined that Atos had made an affirmative evidentiary

showing that there was no factual dispute that the plaintiff’s essential job duties required her to be physically

present at the Cheshire office.5 Although Hamilton

averred as much, the plaintiff averred that she had

received the workplace accommodation of working

from home and that she had, shortly before her employment was terminated, provided additional documentation, at Atos’ request, in support of her ongoing work

from home accommodation. The plaintiff further

averred that she can perform the essential functions

of the job. On appeal, Atos states that permitting the

plaintiff to work from home permanently would be an
unreasonable accommodation. It states that it ‘‘should

not be punished, for exceeding its legal obligations by

permitting [the plaintiff] to initially work from home

in her new role.’’ (Emphasis added.) Thus, Atos appears

to acknowledge that the plaintiff worked from home

in her new role.

‘‘When the evidence in a summary judgment record

reasonably is susceptible to competing inferences, it is

improper for a trial court, in ruling on the summary

judgment motion, to choose among those inferences.’’

Doe v. West Hartford, 328 Conn. 172, 197–98, 177 A.3d

1128 (2018). Faced with competing affidavits, the referee improperly credited the statements contained in

Hamilton’s affidavit. See id., 197 (‘‘[w]hen deciding a

summary judgment motion, a trial court may not resolve

credibility questions raised by affidavits or deposition

testimony submitted by the parties’’). Thus, we agree

with the Superior Court that genuine issues of material

fact existed.

Moreover, we agree with the Superior Court that

there exists a genuine issue of material fact with respect

to the stated reasons for terminating the plaintiff’s

employment. The plaintiff averred that she was told

that her employment was terminated due to a reorganization, while Hamilton averred that he terminated her

employment because she could not perform the essential functions of the position. Rather than merely identifying the factual dispute raised by the competing affidavits, the referee improperly decided the factual question

by crediting the statements made in Hamilton’s affidavit. See id.

Additionally, we note that the record lends support

to the plaintiff’s argument that Atos ‘‘has proffered two

different and contradictory explanations at different

times to explain its termination decision.’’ Atos contends in its appellate brief that ‘‘[i]t has never been

alleged that [the plaintiff’s] termination was because

the service desk technician position was being eliminated.’’ It argues that ‘‘[i]t was her prior managerial

position that was eliminated.’’ Our review of the record

reveals that, in the plaintiff’s affidavit, she averred that

Atos terminated her employment on October 17, 2016.

In its answer, Atos denied this averment as stated and

alleged that, ‘‘[o]n or about October 17, 2016, [the plaintiff’s] position was eliminated.’’ The plaintiff further

averred that Atos ‘‘told [her] that the termination was

due to a ‘reorganization’ and that her ‘job was no longer

available.’ ’’ Notably, in its answer, Atos admitted this

averment and further alleged that ‘‘[the plaintiff’s] position was no longer needed in the [United States] due

to offshore activity.’’ Thus, Atos admitted having told

the plaintiff that her termination was due to a reorganization and that her job was no longer available. In support of Atos’ motion for summary judgment, however,

Hamilton averred that he terminated the plaintiff’s
employment because ‘‘she could not perform an essential function of her job—physically presenting for work

and she conceded she could not perform her duties.’’

The Superior Court concluded that the foregoing

issues, among others,6 constituted ‘‘genuine issues of

material fact that arise directly from the competing

affidavits of the [plaintiff] and . . . Hamilton. These

issues go to the very heart of the discrimination and

retaliation claims. The [referee’s] decision clearly contains factual findings by the [referee] that are not appropriate in the context of a motion for summary judgment.’’ We agree with the Superior Court. Faced with

competing averments on the issues of the essential functions of the job, reasonable accommodations, and the

reason for the termination of the plaintiff’s employment,

the referee erred in determining that there were no

genuine issues of material fact. Thus, summary judgment was not properly rendered.

Lastly, Atos argues that the Superior Court improperly ‘‘based its reversal on factual arguments neither

party raised . . . .’’ Specifically, it argues that the plaintiff and the commission both objected to summary judgment with ‘‘purely procedural arguments’’ and ‘‘neither

objection makes any reference whatsoever to the substance of [the plaintiff’s] complaint nor do the objections set forth any allegedly disputed facts.’’ We disagree that the court erred in determining whether

genuine issues of material fact should have precluded

summary judgment. Although the commission’s objection focused exclusively on the referee’s authority to

render summary judgment, the plaintiff’s objection

included an argument that the early legal intervention

decision to send the matter directly to a public hearing

necessarily meant that there had been established the

existence of genuine issues of material fact. Moreover,

it is undisputed that the referee considered the substance of the plaintiff’s affidavit in deciding the summary judgment motion. The referee expressly stated

that she had ‘‘view[ed] the complaint and the submitted

evidentiary materials in the light most favorable to the

[plaintiff] . . . .’’ Accordingly, the Superior Court did

not err in considering whether genuine issues of material fact existed.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In its memorandum of decision, the Superior Court stated: ‘‘Because the

court finds that [Atos] has clearly not met its burden of establishing that

no genuine issues of material fact exist and this finding is determinative of

the appeal, the court has not decided the general issue of whether or not

a [referee] in a public hearing context [before the commission] has the

ability to grant a motion for summary judgment in any circumstance.’’

The commission’s brief filed with this court is limited to arguing that

‘‘[t]his court should affirm the decision of the Superior Court on the alternat[ive] ground that the [referee] is not authorized to dispose of complaints

at [a] public hearing through summary judgment.’’ The commission states:

‘‘In doing so, the court need not reach the arguments raised by Atos on

appeal, or otherwise address the merits of the summary judgment motion
itself.’’

The state of Connecticut has, pursuant to Practice Book § 67-7, filed an

amicus curiae brief in the present matter arguing that the referee has the

authority to grant motions for summary judgment as a means of disposing

of meritless complaints at a public hearing. The state did not participate in

oral argument.

We conclude that the Superior Court correctly sustained the appeal on

the basis that the referee improperly rendered summary judgment because

there existed genuine issues of material fact. Accordingly, we decline to

reach the alternative ground for affirmance raised by the commission and

need not address the argument contained in the state’s amicus brief.

2 Because Atos’ claims are interrelated, we consider them together.

3 Onderick averred that she assisted the plaintiff with multiple requests

for FMLA leave and accommodations starting in 2015, and ending in late

2015. Onderick averred: ‘‘Specifically, in October, 2015, [the plaintiff]

requested and was granted intermittent FMLA leave. . . . From October,

2015 through June, 2016, Atos granted intermittent leave to [the plaintiff]

each time it was requested. . . . In June, 2016, [the plaintiff] requested

approximately three months of continuous FMLA leave from June 13 through

September 8, 2016. A true and correct copy of the record showing the request

for continuous leave is attached as [e]xhibit 1. . . . However, based on her

prior intermittent FMLA leave, [the plaintiff] was only eligible for FMLA

leave through August 9, 2016. Yet, as an accommodation, Atos approved

the entirety of the requested continuous leave through September 8, 2016,

despite the fact that she was not eligible for it after August 9, 2016. . . .

After her continuous FMLA leave from June 13 through September 8, 2016,

[the plaintiff] requested another year of intermittent FMLA leave, this time

requesting leave from September 20, 2016 through September 20, 2017. The

request was denied due to lack of paperwork from her physician. A true

and correct copy of the record showing the requested leave is attached as

[e]xhibit 2. . . . She additionally asked to be permitted to work from home

despite her physician advising that her only restriction was limited driving

distances. A true and correct copy of the record showing that requested

accommodation is attached as [e]xhibit 3. . . . After numerous communications between [the plaintiff] and Atos’ human resources department, [the

plaintiff] submitted revised physician paperwork on October 9, 2016, indicating a permanent [work from home] restriction. A true and correct copy of

the record showing that requested accommodation is attached as [e]xhibit 4.’’

4 Atos also cites Barnes v. Premier Education Group, LP, Superior Court,

judicial district of New Britain, Docket No. CV-15-5016997-S (April 7, 2017).

Unlike the present case, the decision in Barnes was rendered following

a fact-finding conference during which both parties presented evidence,

including witness testimony. Id.

5 The referee also concluded that, ‘‘[b]y her own admission, the [plaintiff’s]

ability to perform her job duties was impaired as a result of her short-term

memory loss due to the medications she was taking for bipolar disorder

and anxiety.’’ The only evidence the referee identified in support of this

conclusion consisted of the July, 2016 text messages. We agree with the

Superior Court that there existed a genuine issue of material fact in light

of the plaintiff’s sworn assertion that she could perform the essential functions of the job.

6 We need not consider the other issues the Superior Court identified as

genuine issues of material fact.