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*********************************************** 
GLORIA FERNANDEZ v. MAC MOTORS, INC.

(AC 43618)

Bright, C. J., and Alvord and Devlin, Js.

Syllabus

The plaintiff sought to recover damages from the defendant, her former

employer, for alleged discrimination and the creation of a hostile work

environment on the basis of her gender in violation of the applicable

provision (§ 46a-60) of the Connecticut Fair Employment Practices Act.

The plaintiff, who had been a finance manager at the defendant’s car

dealership, claimed that she had been paid less than male employees

who performed the same job and that she had been subjected to mistreatment by four male managers, which included sporadic incidents of

yelling. She further alleged that male employees made remarks in the

workplace that were crude and demeaning to women. The plaintiff

initially brought an action in the United States District Court for the

District of Connecticut, in which she alleged that the defendant had

violated the federal Equal Pay Act of 1963 (29 U.S.C. § 206 et seq.).

While the federal action was pending, the plaintiff filed a complaint with

the Commission on Human Rights and Opportunities, in which she

alleged violations of § 46a-60. The commission thereafter issued to the

plaintiff a release of jurisdiction letter that authorized her to bring this

action in the Superior Court. During the pendency of that action, the

District Court rendered summary judgment for the defendant. The trial

court then granted the defendant’s motion for summary judgment on

the grounds that the plaintiff’s gender discrimination claim was barred

by the doctrine of res judicata and that the evidence she presented was

insufficient to raise a genuine issue of material fact as to her hostile

work environment claim. On the plaintiff’s appeal to this court, held:

1. The trial court correctly determined that res judicata barred the plaintiff’s

gender discrimination claim: contrary to the plaintiff’s assertion that

the statute of limitations for Equal Pay Act claims required her to litigate

that claim before her gender discrimination claim, there was no genuine

issue of material fact that she was not jurisdictionally barred from

bringing the gender discrimination claim in the District Court, as she

failed to take advantage of available options that included filing the

Equal Pay Act claim in the District Court, then seeking a stay of that

action until the proceeding before the commission concluded, amending

the Equal Pay Act complaint to add the gender discrimination claim after

the commission issued the release of jurisdiction letter, or exhausting

her administrative remedies before the commission, then filing both the

Equal Pay Act and gender discrimination claims in the District Court;

moreover, as the complaint before the trial court and the pleadings in

the District Court contained virtually identical allegations, and involved

the same parties and conduct that occurred during the same time period,

the combined facts of both actions constituted a single transaction that

would have formed a convenient trial unit for the District Court, which

would not have been unexpected by the parties; furthermore, the plaintiff

failed to present any evidence to suggest that the District Court would

have declined to exercise supplemental jurisdiction over her gender

discrimination claim, as federal courts routinely, and properly, exercise

supplemental jurisdiction over state law claims of that nature when

similar federal claims also have been alleged, and, although the plaintiff’s

Equal Pay Act and state law discrimination claims contained different

legal elements, such differences do not affect the application of res

judicata when the legal claims arise from the same transaction.

2. The trial court correctly determined that the defendant was entitled to

judgment as a matter of law on the plaintiff’s hostile work environment

claim: the conduct at issue was not sufficiently severe or pervasive to

give rise to a hostile work environment claim, as the plaintiff admitted

that the incidents and conduct at issue were sporadic and not pervasive,

she was unable to describe with specificity when the events occurred,

and she never alleged, and the record did not suggest, that the conduct

at issue altered the conditions of her employment; moreover, nothing
in the record suggested that yelling, the only conduct clearly directed

at the plaintiff, ever had anything to do with her gender, and the plaintiff

stated that the yelling was always related to issues in the workplace;

furthermore, there was no evidence as to when the comments and

conduct directed at other female employees occurred or that the plaintiff

ever took steps to report it, and she specifically stated that she was

never the target of language or conduct of a sexual nature.

Argued April 14—officially released July 13, 2021

Procedural History

Action to recover damages for alleged employment

discrimination, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the

court, Hon. A. Susan Peck, judge trial referee, granted

the defendant’s motion for summary judgment and rendered judgment thereon, from which the plaintiff

appealed to this court. Affirmed.

Zachary T. Gain, with whom, on the brief, was James

V. Sabatini, for the appellant (plaintiff).

Sara R. Simeonidis, with whom, on the brief, was

James F. Shea, for the appellee (defendant).
Opinion

DEVLIN, J. In this employment discrimination case,

the plaintiff, Gloria Fernandez,1 appeals from the summary judgment rendered in favor of her former

employer, the defendant, Mac Motors, Inc., as to both

counts of her complaint, in which she alleged that the

defendant had subjected her to discrimination and a

hostile work environment on the basis of her gender.

On appeal, the plaintiff claims that the trial court erred

in granting the defendant’s motion for summary judgment in its entirety because (1) her gender discrimination claim was not barred by the doctrine of res judicata,

and (2) she submitted sufficient evidence to raise a

genuine issue of material fact as to her hostile work

environment claim. We affirm the judgment of the court.

The record before the court, viewed in the light most

favorable to the plaintiff as the nonmoving party,

reveals the following facts and procedural history. The

defendant is a corporation that does business as Hartford Toyota Superstore and operates a car dealership

in Hartford. On August 1, 2014, the defendant hired the

plaintiff as a finance manager. The defendant employed

one other finance manager, Marc Clemons, who is male.

Among the responsibilities of finance managers was

the sale of ‘‘back end’’ financial products2

to customers

who purchased vehicles. When the plaintiff was hired,

finance managers received as compensation 14 percent

of the gross profits from their own sales of back end

products to customers.

During the time of the plaintiff’s employment with

the defendant, Asad ‘‘Tony’’ Mumtaz served as finance

director, and he was responsible for overseeing the

finance managers and working with financial institutions to obtain financing for customers. James Webster

served as general manager, and he was responsible

for overseeing Mumtaz and managing the day-to-day

business of the defendant. Webster reported directly to

the defendant’s owner, Richard McAllister, whose son,

Richard McAllister, Jr. (McAllister), served as sales

manager.

In early 2016, the defendant revised the pay plan

for finance managers, such that they would receive as

compensation 4.6 percent of the gross profits of the

sales of back end products made by the entire sales

department. Approximately one month later, on February 12, 2016, the plaintiff tendered her resignation

because this constituted a ‘‘huge reduction in [her]

pay plan.’’

On July 15, 2016, the plaintiff, along with two other

female employees of the defendant, instituted an action

in the United States District Court for the District of

Connecticut (federal action), alleging that the defendant had ‘‘fail[ed] to pay [the] plaintiffs the same as

male employees performing the same job, in violation
of the Equal Pay Act of 1963 [EPA], 29 U.S.C. § 206 et

seq.’’ On July 25, 2016, the plaintiff filed a complaint with

the Commission on Human Rights and Opportunities

(commission), ‘‘charg[ing] [the defendant] with gender

discrimination and [having created a] hostile work environment . . . .’’ On April 21, 2017, the plaintiff received

a release of jurisdiction letter from the commission,

which authorized her to bring this action in the Superior

Court. On July 18, 2017, the plaintiff commenced the

present action, alleging that that she had been subjected

to discrimination and a hostile work environment on

the basis of her gender in violation of General Statutes

§ 46a-60 of the Connecticut Fair Employment Practices

Act, General Statutes § 46a-51 et seq. On April 30, 2018,

the District Court granted the defendant’s motion for

summary judgment and rendered judgment in favor of

the defendant.

On November 19, 2018, the defendant filed a motion

for summary judgment as to both counts of the plaintiff’s complaint on the grounds that her claim of gender

discrimination was barred by res judicata and that the

conduct she complained of did not create a hostile work

environment as a matter of law. On November 13, 2019,

the court rendered summary judgment in favor of the

defendant as to both counts. It is from this judgment

that the plaintiff appeals. Additional facts and procedural history will be set forth as necessary.

‘‘We set forth our well established standard of review

on appeal following a trial court’s granting of a 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 at to any material

fact and that the moving party is entitled to judgment

as a matter of law. As an appellate tribunal, [w]e must

decide whether the trial court erred in determining that

there was 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 test

is whether a party would be entitled to a directed verdict

on the same facts. . . . A material fact is a fact which

will make a difference in the result of the case. . . .

[I]ssue-finding, 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.) Mariano v. Hartland Building & Restoration Co.,

168 Conn. App. 768, 776–77, 148 A.3d 229 (2016).

I

The plaintiff first claims that the trial court erred in

concluding that her gender discrimination claim was
barred by res judicata. Specifically, the plaintiff claims

that res judicata does not apply because ‘‘there was a

jurisdictional bar preventing [her] from bringing [the]

claim before the federal court,’’ and because her ‘‘[EPA]

claims litigated in federal court are fundamentally different from her gender discrimination claim brought

under [§ 46a-51 et seq.].’’ We are not persuaded.

‘‘Res judicata, or claim preclusion, express[es] no

more than the fundamental principle that once a matter

has been fully and fairly litigated, and finally decided,

it comes to rest. . . . Res judicata bars the relitigation

of claims actually made in [a] prior action as well as

any claims that might have been made there. . . . Public policy supports the principle that a party should not

be allowed to relitigate a matter which it already has had

an opportunity to litigate.’’ (Citations omitted; footnote

omitted; internal quotation marks omitted.) Wheeler v.

Beechcroft, LLC, 320 Conn. 146, 156–57, 129 A.3d 677

(2016). It is well established that ‘‘a federal court has

jurisdiction over an entire action, including state-law

claims, whenever the federal-law claims and state-law

claims in the case derive from a common nucleus of

operative fact and are such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding. . . . The [United States Supreme] Court

intended this standard not only to clarify, but also to

broaden, the scope of federal pendent jurisdiction. . . .

According to [the United States Supreme Court], considerations of judicial economy, convenience and fairness to litigants support a wide-ranging power in the

federal courts to decide state-law claims in cases that

also present federal questions.’’ (Citation omitted; internal quotation marks omitted.) Connecticut National

Bank v. Rytman, 241 Conn. 24, 47, 694 A.2d 1246 (1997).

Therefore, the first question before this court is whether

there was a jurisdictional bar to the plaintiff’s bringing

her gender discrimination claim in the federal action.

According to the plaintiff, she ‘‘was obligated to litigate her EPA claim before her gender discrimination

claim due to the statute of limitations [because] [t]he

filing of the gender discrimination claim with the [commission] [did] not extend/toll the two year statute of

limitations for filing an EPA lawsuit.’’ Although the

plaintiff is technically correct, there existed several

opportunities that were available to her that she could

have employed in order to bring her gender discrimination claim before the District Court. See generally V.

Hooper, note, ‘‘Avoiding the Trap of Res Judicata: A

Practitioner’s Guide to Litigating Multiple Employment

Discrimination Claims in the Third Circuit,’’ 45 Vill. L.

Rev. 743 (2000). Under one such option, the plaintiff

could have filed her EPA claim in federal court and

then sought a stay of that action until the conclusion

of her proceeding before the commission. This option

was viable because the United States Court of Appeals

for the Second Circuit is ‘‘of the firm opinion that a
[D]istrict [C]ourt faced with a stay request in this type

of situation . . . should grant the stay absent a compelling reason to the contrary.’’ Woods v. Dunlop Tire

Corp., 972 F.2d 36, 41 (2d Cir. 1992), cert. denied, 506

U.S. 1053, 113 S. Ct. 977, 122 L. Ed. 2d 131 (1993). The

plaintiff also could have filed her EPA claim in federal

court and then amended that complaint to add her gender discrimination claim after the commission issued

its release of jurisdiction letter. This option was also

viable because the federal action was not disposed of

until nine months after the plaintiff commenced the

present action. Finally, the plaintiff could have first

exhausted her administrative remedies before the commission, and then filed both her EPA and gender discrimination claims in federal court. Because these

options were clearly available, and the plaintiff simply

failed to take advantage of them, we conclude that she

was not jurisdictionally barred from bringing her gender

discrimination claim in the District Court.

Having reached this conclusion, we turn now to the

facts underlying the plaintiff’s claims to determine

whether the trial court correctly concluded that the

plaintiff’s gender discrimination claim was barred by

res judicata. ‘‘We have adopted a transactional test as

a guide to determining whether an action involves the

same claim as an earlier action so as to trigger operation

of the doctrine of res judicata. [T]he claim [that is]

extinguished [by the judgment in the first action]

includes all rights of the plaintiff to remedies against

the defendant with respect to all or any part of the

transaction, or series of connected transactions, out of

which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a

series, are to be determined pragmatically, giving

weight to such considerations as whether the facts are

related in time, space, origin, or motivation, whether

they form a convenient trial unit, and whether their

treatment as a unit conforms to the parties’ expectations or business understanding or usage. . . . In

applying the transactional test, we compare the complaint in the second action with the pleadings and the

judgment in the earlier action.’’ (Citations omitted;

internal quotation marks omitted.) Powell v. Infinity

Ins. Co., 282 Conn. 594, 604, 922 A.2d 1073 (2007).

The operative complaint in the present case and the

pleadings in the plaintiff’s federal action contain virtually identical allegations regarding (1) the status of the

plaintiff as a female citizen of Connecticut, (2) the

defendant’s status as a corporation operating a car dealership, Hartford Toyota Superstore, in Hartford, (3) the

plaintiff’s employment with the defendant, which began

August 1, 2014, and (4) the plaintiff’s satisfactory job

performance. Moreover, both actions involve the same

parties—Webster, McAllister, Mumtaz, and Clemons—

and involve conduct that occurred during the same

eighteen month period of time. Furthermore, a central
allegation in each action is that the defendant did not

pay the plaintiff the equivalent of what it paid similarly

situated male employees due to her gender. After considering these factors, we conclude that the combined

facts of both actions constituted a single transaction

that would have formed a convenient trial unit for the

District Court and that their treatment as a unit would

not have been unexpected by the parties. Accordingly,

we conclude that the trial court properly found that no

genuine issue of material fact existed as to whether

the plaintiff had the opportunity to bring her gender

discrimination claim before the District Court.

Because the plaintiff had the opportunity to bring

her gender discrimination claim in the prior federal

action, we next ‘‘apply the test set forth in . . . [1]

Restatement (Second) of Judgments, § 25, comment (e)

[1982]. Under [the relevant part of] this test . . . [i]f

. . . the court in the first action . . . having jurisdiction, would clearly have declined to exercise it as a

matter of discretion . . . then a second action in a

competent court presenting the omitted theory or

ground should [not be] precluded.’’ (Emphasis in original; internal quotation marks omitted.) Connecticut

National Bank v. Rytman, supra, 241 Conn. 44. Accordingly, for the plaintiff’s gender discrimination claim to

survive summary judgment on the ground of res judicata, she must show that the District Court would

clearly have declined to exercise jurisdiction over it as

a matter of discretion. The plaintiff has failed to make

such a showing.

It is clear that federal courts routinely, and properly,

exercise supplemental jurisdiction over state law claims

of this nature when similar federal claims also have

been alleged. See Eng v. New York, 715 Fed. Appx. 49,

54 (2d Cir. 2017) (holding that District Court did not

abuse its discretion in exercising supplemental jurisdiction over plaintiff’s state law discrimination claims

because they arose out of same common nucleus of

operative facts as her federal claims); Treglia v. Manlius, 313 F.3d 713, 723 (2d Cir. 2002) (holding that supplemental jurisdiction over plaintiff’s state law discrimination claim was proper because it ‘‘[arose] out of

approximately the same set of events as his federal

retaliation claim’’); see also Considine v. Brookdale

Senior Living, Inc., 124 F. Supp. 3d 83 (D. Conn. 2015);

Schlafer v. Wackenhut Corp., 837 F. Supp. 2d 20, 24 (D.

Conn. 2011); Osborn v. Home Depot U.S.A., Inc., 518

F. Supp. 2d 377, 388–89 (D. Conn. 2007). Because the

plaintiff failed to present any evidence to even suggest

that the District Court would have declined to exercise

supplemental jurisdiction over her gender discrimination claim, we conclude that the trial court correctly

determined that res judicata applies to this claim.

Having reached this conclusion, we finally address

the plaintiff’s assertion that res judicata should not
apply because her EPA and state law discrimination

claims contain different legal elements. Although this

is true, such differences do not affect the application

of res judicata when, as here, the legal claims arise

from the same transaction. ‘‘[W]hatever legal theory is

advanced, when the factual predicate upon which

claims are based [is] substantially identical, the claims

are deemed to be duplicative for purposes of res judicata.’’ Berlitz Schools of Languages of America, Inc.

v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980).

Accordingly, we conclude, with regard to the plaintiff’s

gender discrimination claim, that the defendant was

entitled to judgment as a matter of law under the doctrine of res judicata.3

II

The plaintiff’s second claim is that the court erred

in granting the defendant’s motion for summary judgment as to her hostile work environment claim because

she submitted sufficient evidence to raise a genuine

issue of material fact as to such a claim. We disagree.

‘‘It is clear that . . . individuals reasonably should

expect to be subject to [the] vicissitudes of employment, such as workplace gossip, rivalry, personality

conflicts and the like. Thus, it is clear that individuals in

the workplace reasonably should expect to experience

some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace.

. . . That is simply an unavoidable part of being

employed. We recognize, however, that does not mean

that persons in the workplace should expect to be subject to conduct that transgress[es] the bounds of

socially tolerable behavior . . . .’’ (Citation omitted;

internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002). Accordingly, ‘‘[t]o establish a hostile work environment claim,

a plaintiff must produce evidence sufficient to show

that the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment . . . . [I]n order to be actionable . . . a sexually

objectionable environment must be objectively and subjectively offensive, one that a reasonable person would

find hostile or abusive, and one that the victim in fact

did perceive to be so. . . . Whether an environment is

objectively hostile is determined by looking at the

record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.’’ (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453

(2015).

In Feliciano, our Supreme Court noted that, in the
context of a hostile work environment claim, summary

judgment is appropriate when, ‘‘on the basis of all of

[the] evidence, a reasonable juror could find that the

defendant’s workplace [was] 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 . . . .’’ (Internal quotation marks omitted.) Id., 89. Accordingly, in the present case, we must

review ‘‘all of the evidence . . . in the light most favorable to the nonmoving party . . . [to conclude

whether] the trial court improperly determined that the

plaintiff had not established a genuine issue of material

fact as to whether the defendant had subjected her to

a hostile work environment on the basis of her sex.’’

(Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 88–89.

The following additional facts, considered in the light

most favorable to the plaintiff, are relevant to our resolution of this claim. The plaintiff claimed that, during

her employment with the defendant, she was mistreated

by four persons: Webster, McAllister, Mumtaz, and

Clemons. This mistreatment may be summarized as follows.

Webster would sometimes yell at the plaintiff during

managers’ meetings. The plaintiff described these incidents as follows: ‘‘I have to physically show you,

because it wasn’t just yelling; it was verbally intimidating. . . . Webster stood like this, if I move a centimeter

I could touch his nose, got into my face, while yelling,

while spitting in my face . . . .’’ Webster’s conduct was

always related to issues in the workplace, but the plaintiff did not remember what exactly Webster said to her.

On one occasion, the plaintiff walked out of a managers’

meeting due to Webster’s yelling. Later that day, Webster told the plaintiff that she did the right thing by

leaving and that he should not have spoken to her that

way. According to the plaintiff, this was Webster ‘‘trying

to apologize the best he could . . . .’’ Webster also

yelled at other employees, including Luis Plaza, whom

he accused of doing ‘‘a terrible job with the used cars

. . . .’’ The plaintiff believed that Webster did not like

anybody in the workplace but that he particularly disliked her because she ‘‘would tell him to his face, no.’’

The plaintiff’s best characterization of how many incidents of this nature occurred was that, ‘‘[i]t was a few,

more than once.’’ The plaintiff also stated that Webster’s

conduct during these meetings did not indicate to her

that he was unhappy with her work.

During her employment with the defendant, the plaintiff took a vacation. There was a discrepancy between

the number of vacation days that the plaintiff requested

and the return to work date that she provided on the

vacation request form. Webster expected the plaintiff

to return to work on the date listed on the form, whereas
the plaintiff believed that she did not have to return

until the following day. As a result of this confusion,

the plaintiff did not return to work on the date listed

on the form. Webster told the plaintiff several times

that she was ‘‘in big trouble . . . .’’ According to the

plaintiff, she was ‘‘grounded’’ by Webster: ‘‘I lost my

day off, I felt I was back in a totalitarian regime, I

lost my early night. I was forced to work the next few

Sundays as my punishment.’’ Webster also yelled at

Andrew Lombardi, another employee, about this issue,

and ordered him to text the plaintiff. The plaintiff did

not recall Webster saying anything further about this

issue.

Because of her managerial position with the defendant, the plaintiff was given a dealer vehicle to drive.

There was an occasion when damage was discovered

on the vehicle, and Webster was convinced that the

plaintiff had caused the damage. The plaintiff denied

responsibility. This resulted in another yelling incident

in front of other employees: ‘‘Webster was convinced

that I had done it . . . and he was going to yell . . .

at me over [it], and it was horrific, same crap. . . . [I]n

his mind I had done it, and no matter what I said . . .

[h]e didn’t believe me. And then he said, next time I

damage the vehicle that I would pay for it.’’ The plaintiff

could not recall exactly what he said, ‘‘but it was to

the effect of, you damaged that car . . . [y]ou are going

to pay for it.’’ Ultimately, the plaintiff was not required

to pay for the damage.

While the plaintiff was employed by the defendant,

the dealership produced a Spanish language television

commercial that included several Spanish speaking

employees. The plaintiff, who speaks Spanish, was not

included. This embarrassed the plaintiff.

On one occasion, McAllister yelled at the plaintiff:

‘‘He came to my office . . . [which] was all glass [so]

everybody outside could see . . . . He got this close

to me and yell[ed] at me, while spitting in my face,

because it was that close.’’ This incident lasted for a

couple of minutes. The plaintiff could not recall why

McAllister yelled at her but believed that it was because

of a work related issue. McAllister did not use any

inappropriate language while yelling at the plaintiff.

There were no other incidents involving McAllister.

On one occasion, Mumtaz remarked to the plaintiff:

‘‘I’ll have to get up and choke you.’’ Mumtaz also used

the word ‘‘biatch,’’ a term he described as a ‘‘fancy way

of saying a bitch’’ to describe women in the workplace.

Additionally, Mumtaz constantly made comments in the

plaintiff’s presence to Lilia Browne, a female employee,

regarding Browne’s sex life.

Clemons was, according to the plaintiff, ‘‘very, very

nasty, very short, [and] very sarcastic.’’ Clemons would

direct sarcastic and offensive comments at the plaintiff,
and would not ‘‘answer [her] in the right way.’’ The

plaintiff, however, cannot recall the specifics of any

interactions she had with Clemons.

A number of incidents also occurred in the workplace

that did not directly involve the plaintiff. The plaintiff

described the first incident as follows: ‘‘Browne was in

my office, and [Webster] came and he physically started

pushing her out. He said, ‘get this cockroach out of

my office.’ ’’ The plaintiff described another incident as

follows: ‘‘There was a Christmas party. They were all

drinking and stuff. . . . [Webster] grabbed [Browne]

by the waist, that kind of stuff.’’ The plaintiff also

observed Webster making ‘‘innuendos about [Browne’s]

breasts . . . .’’ The plaintiff also described an incident

involving Webster and another female employee, Jill

Bruno: ‘‘[Webster] walked up to [Bruno] and grabbed

her butt cheeks . . . either coming into . . . or leaving [a] managers’ meeting.’’ The plaintiff did not recall

when this incident occurred.

The plaintiff also recounted observations about the

conduct of male employees in the workplace generally.

According to the plaintiff, Webster made jokes in the

workplace that were demeaning to female employees,

made comments such as ‘‘woman driver[s],’’ and would

ask to ‘‘talk to the husband’’ when interacting with

women. Webster also, at times, used words such as

‘‘bitch,’’ ‘‘whore,’’ and ‘‘trashy’’ when discussing women

with other employees. Webster, however, never

directed any sexually explicit language at the plaintiff.

At no time did the plaintiff make a complaint of harassment or bullying to the owner, Richard McAllister, or

to the defendant’s controller, Nancy Johnson.

After reviewing these facts, the court found: ‘‘[T]he

plaintiff . . . fails to show that she was subjected to a

hostile work environment based on gender. The plaintiff

claims that her work environment was hostile because

she was occasionally yelled at, other male employees

used stereotypes and crude language when discussing

females, and she witnessed another Hispanic female

called a ‘cockroach.’ While this conduct is perhaps

unprofessional and vulgar, it does not rise to the level

of creating a hostile work environment. The yelling

incidents that the plaintiff complains about were fairly

infrequent, as she could only recall a few instances

where she was yelled at during her employment with

the defendant. . . . The stereotypes and crude language that the plaintiff witnessed others use also does

not appear to be severe and pervasive enough to create

a hostile work environment. . . . [T]he plaintiff failed

to submit any evidence concerning the frequency and

pervasiveness of such language, and could not specifically recall examples of any other colorful language

that her manager used. . . . This language, while tasteless and crude, does not appear to have been pervasive

or severe enough to alter the conditions of the plaintiff’s
employment. . . .

‘‘The foregoing is unlike the scenarios encountered

in cases where the court has found the conduct complained about to rise to the level of harassment required

to sustain a hostile work environment claim. . . .

Instead, the incidents that the plaintiff complains about

appear to have been isolated and sporadic, and they do

not constitute a hostile work environment as a matter

of law. . . . In light of the evidence before the court,

along with the plaintiff’s failure to submit any evidence

describing how the alleged conduct impacted her work

performance, the court cannot find that the plaintiff

was subjected to a hostile work environment. Accordingly, the defendant is entitled to summary judgment

on the plaintiff’s hostile work environment claim.’’

(Citations omitted.)

We agree with the analysis of the court. In order for

the plaintiff’s hostile work environment claim to survive

summary judgment, she must establish the existence

of a genuine issue of material fact as to whether, on

the basis of her gender, the defendant subjected her

to a ‘‘workplace . . . permeated with discriminatory

intimidation, ridicule, and insult that [was] sufficiently

severe or pervasive to alter the conditions of [her]

employment and create an abusive working environment . . . .’’ (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn. 85. The plaintiff has failed to do so in two ways: she has not shown

that the conduct at issue was sufficiently severe or

pervasive, nor has she shown that it was based on

her gender.

For purposes of summary judgment, the conduct at

issue is deemed to have occurred during the eighteen

month period when the plaintiff was employed by the

defendant. The plaintiff, however, has failed to describe

with any specificity the timing, duration, or frequency

of these incidents. This omission is critical because it

is well established that, for a hostile work environment

claim to succeed, the conduct at issue must not be

infrequent or isolated in time. This court has held that

‘‘two instances of inappropriate conduct within a one

year span do not meet the high standard of severe and

pervasive.’’ Heyward v. Judicial Dept., 178 Conn. App.

757, 765, 176 A.3d 1234 (2017). Additionally, in Feliciano, our Supreme Court discussed the facts of several

cases in which it properly was found that a plaintiff’s

hostile work environment claim was not actionable:

‘‘Quinn v. Green Tree Credit Corp., [159 F.3d 759, 768

(2d Cir. 1998)], involved only two isolated incidents. In

Bailey v. Synthes, [295 F. Supp. 2d 344, 358 (S.D.N.Y.

2003)], the supervisor’s actions were infrequent and

isolated, were not physically threatening and occurred

outside of the plaintiff’s daily work routine. In Lamar

v. NYNEX Service Co., [891 F. Supp. 184, 185 (S.D.N.Y.

1995)], the plaintiff did not object to her supervisor’s
behavior and that behavior was not directed specifically

at the plaintiff. In Babcock v. Frank, [783 F. Supp. 800,

808–809 (S.D.N.Y. 1992)], the incidents were isolated

and, in one instance, uncorroborated, and the employer

responded promptly to all of the plaintiff’s complaints.’’

Feliciano v. Autozone, Inc., supra, 316 Conn. 87–88.

The incidents and conduct discussed in the present

case were, by the plaintiff’s own admission, both sporadic and not pervasive; she was unable to describe

with any specificity when the events occurred, either

in time or in relation to one another. Additionally, the

plaintiff never alleged, and the record does not suggest,

that the conduct at issue ever altered the conditions of

her employment. To the contrary, the plaintiff stated

that the incidents involving Webster did not indicate to

her that he was unhappy with her work. Furthermore,

the conduct in the present case, as described by the

plaintiff, was not severe enough to give rise to a hostile

work environment claim. The only conduct that clearly

was directed at the plaintiff was yelling, and, although

yelling is surely conduct that workers consider unpleasant—and that we do not condone—there is nothing in

the record to indicate that this yelling was ever ‘‘sufficiently severe or pervasive to alter the conditions of the

[plaintiff’s] employment and create an abusive working

environment . . . .’’ (Internal quotation marks omitted.) Id., 85. In fact, the plaintiff’s own recollection

supports the conclusion that this yelling was nothing

more than one of the ‘‘vicissitudes of employment . . .

[from which] individuals in the workplace reasonably

should expect to experience some level of emotional

distress . . . .’’ Perodeau v. Hartford, supra, 259 Conn.

757. Finally, there is nothing in the record to suggest that

this yelling ever had anything to do with the plaintiff’s

gender; the plaintiff herself stated that it ‘‘was always

related to issues in the workplace.’’

As for the comments and conduct directed at other

female employees, there is again no evidence as to when

these incidents occurred. There is also no evidence that

the plaintiff ever took steps to report them. It should

also be noted that, although these incidents were gender

related, the plaintiff specifically stated that she was

never the target of language or conduct of a sexual

nature. Because the plaintiff has failed to show the

existence of a genuine issue of material fact as to

whether she was subjected to a hostile work environment, we conclude that the trial court correctly determined that the defendant was entitled to judgment as

a matter of law on the plaintiff’s hostile work environment claim.4

The judgment is affirmed.

In this opinion the other judges concurred.

1 Gloria Fernandez died during the pendency of this appeal. We thereafter

granted the motion filed by her appellate counsel to substitute her daughter,

Christina Gonzalez, the executor of her estate, as the plaintiff.

2

‘‘Back end’’ financial products include warranties, environmental protec-
tion packages, and tire and wheel packages.

3 Having reached this conclusion, we find it unnecessary to consider the

defendant’s alternative ground for affirmance, which is that, even if the

plaintiff’s claim was not barred by res judicata, it failed on its merits because,

as a matter of law, she did not suffer an adverse employment action and

was not constructively discharged.

4 We decline to address the defendant’s alternative ground for affirmance,

which is that the plaintiff’s hostile work environment claim should be

rejected on the ground of res judicata. This argument was not made before

the trial court and was only briefly addressed in the defendant’s appellate brief.