Opinion
No. CV-08-5003212-S
July 12, 2010
RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This is an action brought by the plaintiff under the Connecticut Fair Employment Practices Act (the "CFEPA"), Conn. Gen. Stat. § 46-60, et seq. In his First Count the plaintiff claims that the defendant discriminated when making decisions regarding the plaintiff's employment status. The Second Count incorporates the allegations of the First Count and alleges that the discrimination was intentional. It appears that the sole purpose of the Second Count is for the plaintiff to make a claim for punitive damages over and above his legal fees and other costs of pursuing this action.
The plaintiff's claims arise out of his employment as a police officer with the defendant. The plaintiff claims that the defendant's decisions to first place him on paid administrative leave and then on unpaid administrative leave were substantially motivated by the plaintiff's history of mental disability, record of mental disorder and/or being regarded as having a mental disorder. The plaintiff claims that such actions violate the CFEPA.
The defendant has denied the plaintiff's allegations. It claims that its actions were based on its reasonable conclusion, supported by the opinion of a licensed psychologist, that the plaintiff was unfit for duty. In particular, the defendant claims that the plaintiff's disclosure in discovery responses in a federal lawsuit between the plaintiff and the defendant and various Town officials (the "federal litigation") disclosed that the plaintiff was suffering from a multitude of symptoms that made him unfit for duty as a police officer. These symptoms included "insomnia, weight loss, short term memory problems, short temper, crying for no reason, feeling physically ill, headaches, loss of appetite, difficulty thinking and concentrating, high blood pressure." Affidavit of Edward J. DeMarco ("DeMarco Aff."), ¶ 4. The defendant claims that there is no evidence to support the plaintiff's claims of discrimination, and, therefore moves for summary judgment.
II. SUMMARY JUDGMENT STANDARD
"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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009). Furthermore, on summary judgment all inferences from the facts must be construed in a light most favorable to the nonmoving party. Buell Industries, Inc. v. Greater New York Mutual Ins., 259 Conn. 527, 558, 791 A.2d 489 (2002). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Citations omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).
III. DISCUSSION A. First Count
Because both counts of the complaint state a claim for violation of the CFEPA, the court's analysis as to the whether the plaintiff has set forth sufficient evidence to create a triable issue of fact as to the First Count applies with equal force to the Second Count. Nevertheless, given the court's conclusion regarding the defendant's second argument directed solely to the Second Count, application of the defendant's argument for the First Count to the Second Count is moot.
As noted above, both of the plaintiff's two counts allege violation of the CFEPA. Conn.Gen. Stat. § 46-60(a) provides in relevant part that, "[i]t shall be a discriminatory practice in violation of this section: (1) For an employer . . . except in the case of a bona fide occupational qualification or need . . . to bar or discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of . . . present or past history of mental disability." "Mental disability" is defined in the statutes as "refer[ring] to an individual who has a record of, or is regarded as having one or more mental disorders." Conn.Gen. Stat. § 46a-51(20).
Courts in Connecticut will look to federal precedence for guidance in enforcing claims brought under the CFEPA. Levy v. Comm'n on Human Rights Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996). In fact, Connecticut has adopted the burden shifting framework set forth by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, CT Page 14206 93 S.Ct. 1817 (1973), for resolving discrimination claims brought under CFEPA. Craine v. Trinity College, 259 Conn. 625, 636, 791 A.2d 518 (2002). Under this approach, the plaintiff must first establish a prima facie case of discrimination. Vollemans v. Wallingford, 103 Conn.App. 188, 220, 928 A.2d 586 (2007). If the plaintiff does so, the burden of production then shifts to the defendant to articulate a nondiscriminatory reason for the employment action. Id. If the employer does so, the burden then shifts back to the employee to prove that the reason articulated by the employer is only pretext and that the employment action was in fact motivated by illegal discrimination. Id.
To establish a prima facie case of discrimination, the plaintiff must demonstrate: (1) that he is within the protected class; (2) that he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances that give rise to an inference of discrimination. Id. "The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff's favor." Craine, supra, 638.
The defendant claims that the plaintiff cannot meet two of the elements necessary for a prima facie case of discrimination. First, it claims that the plaintiff was not qualified for the position at the time that the defendant took the actions at issue. Second, the defendant argues that there is no evidence that gives rise to an inference of discrimination. The defendant does not dispute that the plaintiff is within the protected class and that he suffered an adverse employment action.
To be "qualified" a person "must be able to perform the essential functions of the job, either with or without a reasonable accommodation." Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995). The defendant claims that the undisputed evidence shows that the plaintiff was unfit to perform the essential functions of a police officer when he was placed on leave. In support of this claim the defendant points to the plaintiff's allegation in the federal litigation that he has "suffered and will continue to suffer mental, physical and emotional distress." Defendant's Substitute Memorandum of Law (Def. Mem.), p. 14. When asked in discovery to describe the symptoms of his emotional distress the plaintiff responded that he suffered from, "insomnia, weight loss, short term memory problems, short temper, crying for no reason, feeling physically ill, headaches, loss of appetite, difficulty thinking and concentrating, high blood pressure." DeMarco Aff., ¶ 4. Based on these symptoms the Town's chief of police, Edward J. DeMarco, Jr., sent the plaintiff to Stephen A. Sarfaty. Psy.D. for a fitness for duty examination. Dr. Sarfaty met with the plaintiff on three separate occasions, after which Dr. Sarfaty issued a written report to the defendant. Sarfaty Aff., ¶¶ 8-9. In that report, he concluded that "with a reasonable degree of neuropsychological probability, it was judged to be unwise for Mr. Drolett, his family, the department, or the community for him to return to work as a police officer." Pltf. Ex. 6, p. 10. It was Dr. Sarfaty's professional judgment that the plaintiff was not fit for duty as a police officer, and further his opinion that Chief DeMarco was reasonable in questioning the plaintiffs fitness. Sarfaty Aff., ¶¶ 9-10. Relying on the plaintiff's disclosure of symptoms he was suffering and Dr. Sarfaty's opinion, the defendant argues that the plaintiff was unfit for duty when placed on administrative leave. Consequently, the plaintiff cannot make out a prima facie case and summary judgment must enter.
Dr. Sarfaty, although not a medical doctor, has a doctorate in psychology, and will therefore be referred to as Dr. Sarfaty throughout this memorandum.
The defendant has ignored though the substantial evidence put forth by the plaintiff that he was in fact fit for duty. This evidence includes: (1) the plaintiff's most recent performance evaluation by the defendant in October 2005, which took place approximately three months after he filed his federal lawsuit and approximately four months before Chief DeMarco sent him to Dr. Sarfaty, in which the defendant rated the plaintiff's performance as "satisfactory" and meeting standards. Pltf. Ex. 3; (2) the disclosure by the plaintiff that he was receiving treatment from two doctors for any emotional distress and had been prescribed medication to address those issues. Pltf. Ex. 2; (3) the written report of one of the plaintiff's treating physicians, Dr. Vincent, issued on July 14, 2006, opining that the plaintiff was currently fit for duty and had been fit since Dr. Vincent started seeing him in September 2005. Pltf. Ex. 7; (4) the fitness for duty report of Dr. C.A. Morgan, a neuropsychologist to whom the plaintiff was referred by Dr. Vincent, issued on October 30, 2006, finding the plaintiff fit for duty as a police officer. Pltf. Ex. 8; (5) the report of Dr. Kenneth Selig, a third doctor agreed upon by Drs. Sarfaty and Morgan to break the tie as to the plaintiff's fitness for duty, which found that the plaintiff was fit, and which was very critical of Dr. Sarfaty's analysis and conclusion. Pltf. Ex. 9.
Viewing the evidence in a light most favorable to the nonmoving party, as the court must at this stage, there is clearly enough evidence from which the finder of fact could conclude that the plaintiff was qualified for the position when he suffered an adverse employment action.
The defendant also claims that the undisputed facts establish that there can be no inference of discrimination in the defendant's decision to place the plaintiff on leave. The defendant argues that the undisputed facts show that Chief DeMarco acted reasonably when placing the plaintiff on paid leave, given the symptoms the plaintiff was experiencing. As to placing the plaintiff on unpaid leave, the defendant argues that it was reasonable for it to do so, relying on Dr. Sarfaty, an unbiased evaluator who had no relationship with the defendant and who was not influenced by the defendant to reach the conclusion that he did. In support of this claim the defendant relies on the affidavits of Chief DeMarco and Dr. Sarfaty. In particular, Chief DeMarco avers that in his "professional judgment" the symptoms the plaintiff was experiencing were "areas of concern" for someone making life and death decisions while working with limited supervision. DeMarco Aff., ¶ 9. Chief DeMarco also did not know Dr. Sarfaty or anything about him. Id., ¶ 11. According to Chief DeMarco, at no time did he ever discuss the plaintiff's fitness for duty examination with Dr. Sarfaty. His only contact with Dr. Sarfaty was delivering "copies of Drolett's records" to him. Id. ¶ 12. The defendant claims that it did no more than accept Dr. Sarfaty's opinion when it placed the plaintiff on unpaid leave.
The defendant spends considerable time arguing that the decision to request that the plaintiff undergo a fitness for duty examination cannot, in and of itself, form the basis for a claim of discrimination. The court agrees, and the plaintiff has not argued to the contrary. Instead, the plaintiff's claim is that the discriminatory adverse employment actions occurred when the plaintiff was first placed on paid leave and then placed on unpaid leave.
In his affidavit, Dr. Sarfaty avers that he was contacted by Chief DeMarco in February 2006. Sarfaty Aff., ¶ 4. Chief DeMarco stated that he had been referred to Dr. Sarfaty by a representative of CIRMA. Sarfaty Aff., ¶ 5. Dr. Sarfaty avers that his contacts with the Town "were limited to scheduling, transmittal of Mr. Drolett's records and financial arrangements for the examination." Id., ¶ 7. He did request, pursuant to his standard practice, records relating to the plaintiff. Id., ¶ 6.
CIRMA is an acronym for Connecticut Interlocal Risk Management Agency. Chief DeMarco identified the person who referred him to Dr. Sarfaty as "the workers' compensation claims representative for the Town's insurance carrier." DeMarco Aff., ¶ 11.
Based on this evidence, the defendant claims that there can be no inference of discrimination in its actions. It claims that it acted reasonably, and properly relied on Dr. Sarfaty's opinion.
In response, the plaintiff has offered the following evidence from which he argues a jury could infer a discriminatory motive. First, correspondence from the defendant's counsel suggests that the defendant concluded that the plaintiff was unfit for duty before it retained Dr. Sarfaty. In response to the plaintiff's discovery responses in the federal litigation in which he disclosed the symptoms from which he was suffering, the defendant's counsel replied that the plaintiff's condition "would seem to pose a great threat to himself and others . . . The town finds these disclosures to be very problematic." He went on to ask, one could infer rhetorically, "[h]ow can Mr. Drolett continue to serve as a police officer for the town when he is suffering from these severe conditions that could impact his ability to work and/or work safely. [sic]" Defendant's Ex. C. The plaintiff argues that this correspondence is even more significant because the Town gave it to Dr. Sarfaty. Thus, according to the plaintiff, at the time he evaluated the plaintiff, Dr. Sarfaty knew the Town's position and its desired outcome.
The defendant's counsel confirmed at oral argument that Dr. Sarfaty received the letter as part of the record for the plaintiff. However, because he had not yet been deposed, there was no evidence regarding what impact, if any, the letter had on him.
The plaintiff further argues that the defendant's reliance on Dr. Sarfaty's opinion as being neutral and unbiased was misplaced because Dr. Sarfaty had been referred to the Town by their insurance carrier, CIRMA, and Dr. Sarfaty knew that was where the referral came from. According to the plaintiff, one could infer that the Town knew, given the referral source, that Dr. Sarfaty would be predisposed to find the plaintiff unfit for service and that Dr. Sarfaty knew that was the opinion that Chief DeMarco expected.
In addition, despite the claims by Chief DeMarco and Dr. Sarfaty that their communications were limited to logistics, Dr. Sarfaty's notes reflect some level of substantive discussions regarding the plaintiff. Pltf. Ex. 5. Those notes could reasonably be read to indicate that Chief DeMarco told Dr. Sarfaty that the plaintiff was suffering from depression, among other things, and that the Town had already placed him on an administrative medical leave. Furthermore, the notes reflect that Dr. Sarfaty also spoke with the Town's attorney before Dr. Sarfaty ever met the plaintiff. Id. Those notes can reasonably be read that the Town's attorney told Dr. Sarfaty that the plaintiff had suffered a brain injury years ago, had a history of "issues," and had a history of "serious back injury." The plaintiff argues that these notes prove that the Town had already made up its mind regarding the plaintiff's fitness for duty and sufficiently communicated that view to Dr. Sarfaty to encourage him to issue an opinion that supported its conclusion.
The plaintiff further argues that the facts relied upon by Dr. Sarfaty show that his opinion is unreliable and that the Town should have seen it as such. In particular, the plaintiff points to the fact that Dr. Sarfaty's opinion that it would be "unwise" for the plaintiff to return to work was based, in part, on the fact that the plaintiff had suffered a brain injury and a psychotic break. Pltf. Ex. 6, p. 10. According to the plaintiff, this injury, and the resultant "psychotic break" occurred in 1985. Drolett Aff., ¶ 27. Thus, the plaintiff had worked, as a police officer, for over 20 years thereafter without incident. The plaintiff suggests that a fact finder could infer that Dr. Sarfaty was issuing a result-oriented opinion by relying on such outdated information that, in reality, had no impact on the plaintiff's fitness for duty for over two decades. Further supporting such an inference is the testimony of Dr. Selig, the neutral medical doctor selected by Dr. Sarfaty and Dr. Morgan to resolve their split on the plaintiff's fitness for duty, that any reliance on such dated information would be "highly professionally questionable" and "borders on incomprehensible as I understand psychiatry." Pltf. Ex. 16, Selig Depo., pp. 77-78.
Viewing this evidence in a light most favorable to the plaintiff, construing all inferences in his favor, and considering the minimal burden the plaintiff has to state a prima facie case, the court finds that the plaintiff has submitted sufficient evidence of a prima facie case at the summary judgment stage.
The plaintiff having presented a prima facie case, the burden shifts to the defendant to articulate a nondiscriminatory reason for the adverse employment actions. "The defendant does not have to prove the absence of discrimination." Craine, supra, 643. It merely must state a basis for its decision, other than the alleged discriminatory one. Id. There is no dispute that the defendant has articulated such a basis, namely it had concerns about the plaintiff's fitness for duty in light of his reported symptoms and Dr. Sarfaty's opinion that the plaintiff was not fit for duty. Consequently, the burden then shifts to the plaintiff to prove by a preponderance of the evidence that this stated reason was a pretext for discrimination.
The defendant claims that there is no evidence that would support a finding that its stated reason for its decisions regarding the plaintiff were a pretext for discrimination. In making this argument, the Town relies upon the same evidence it used to argue that the plaintiff has not presented evidence of an inference of discrimination. In particular, the Town points to the fact that it reasonably relied on the independent, uninfluenced opinion of Dr. Sarfaty. Def. Mem., pp. 27-28.
Not surprisingly, the plaintiff also relies on the same evidence it claims supports an inference of discrimination. In particular, he points to the evidence discussed above from which one could infer that Dr. Sarfaty was not independent and was influenced by the Town and its attorney. Based on this evidence, the plaintiff argues that one could infer that the Town knew that it was not reasonable to rely on Dr. Sarfaty, proving that its stated reason for its actions was a pretext. The law is clear that a plaintiff may rely on the same evidence used to establish his prima facie case to prove pretext. Craine, supra, 644. In addition, the plaintiff points to the fact that the defendant decided to pursue termination of the plaintiff before considering treatment options or reviewing the situation with the plaintiff's doctors. Def. Ex. G. Finally, the plaintiff points to the fact that there is evidence that Chief DeMarco improperly attempted to influence Dr. Selig to issue a report consistent with Dr. Sarfaty's by telling Dr. Selig additional negative information about the defendant. Pltf. Ex. 16, Selig Depo., pp. 34-35, 37. The plaintiff claims that this is further evidence that the Town knew that its stated reasons for its actions were without merit, and that it needed to make additional allegations to justify them.
Chief DeMarco denies ever making any such statements to Dr. Selig. Nevertheless, at this stage of the proceedings, the court must accept the account of the conversation most favorable to the plaintiff, which is Dr. Selig's.
Again, viewing the evidence in a light most favorable to the plaintiff, the court finds that he has submitted enough evidence to create a triable issue of fact as to whether the defendant's articulated reason for its actions was pretextual. The Sixth Circuit Court of Appeals reached a similar conclusion in Denhof v. City of Grand Rapids, 494 F.3d 534 (6th Cir. 2007), a case cited by both parties here. In that case, the plaintiff's, two police officers, sued the City of Grand Rapids for sexual discrimination and harassment. During the course of the litigation evidence suggested that they were suffering from emotional distress. Consequently, the City sent them for fitness for duty examinations and placed them on paid leave. Following the examinations and a finding that they were unfit for duty, both plaintiffs were placed on unpaid leave pending treatment and a finding that they were fit for duty. Both claimed that the City's articulated reasons for placing the plaintiffs on leave was a pretext for the discrimination they claimed. The case was tried before a jury which returned a verdict for both plaintiffs. After trial, the district court granted the City's motion for judgment as a matter of law and set aside the verdict. The court held that the evidence could only support a finding that it was reasonable for the chief of police to rely on the psychologist who found the plaintiffs unfit for duty.
The Sixth Circuit reversed the trial court and reinstated the jury's verdict, holding that there was sufficient evidence from which the jury could reach its verdict. In reaching its conclusion the court employed the same McDonnell-Douglas burden shifting framework at issue here. Id., 542. The focus of the court's analysis was the issue of pretext, in particular, whether there was sufficient evidence from which a jury could conclude that the City's claimed reliance on the conclusion of the psychologist who conducted the fitness for duty examinations was unreasonable. The court held that there was enough evidence for the jury to reach such a conclusion and pointed to evidence similar to that relied upon by the plaintiff here.
The standard for ruling on motion for judgment as a matter of law under Fed.R.Civ.P. 50(a), is for all practical purposes, the same as the summary judgment standard employed here. The jury's verdict may only be set aside if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Denhof, supra, 543. In conducting its analysis, the court must view the evidence in a light most favorable to the nonmoving party. Id.
For example, the court noted that the psychologist used by the City, before ever examining Denhof, sent a letter to the City questioning how Denhof could continue to work for the police department given the tension between her and others in the department. Id., 544. The court held that a jury could conclude that the psychologist reached his conclusion regarding Denhof's fitness before any examination, and the City's reliance on his subsequent opinion was therefore not reasonable. Id. Similarly here, the Town stated its conclusion that the plaintiff was unfit for duty before ever sending him for an examination. In addition, the plaintiff has averred that at his first meeting with Dr. Sarfaty, the plaintiff was asked, in reference to the federal litigation, "how do you expect to be able to work [for the Town] at this point, since you will not be accepted or be able to do your job because of the damage you have caused?" Drolett Aff., ¶ 20. A reasonable jury could conclude that both the Town and Dr. Sarfaty had made up their minds regarding the plaintiff's fitness for duty long before Dr. Sarfaty completed his examination of the plaintiff and his subsequent report. Such a conclusion would support a finding, as in Denhof that any reliance on Dr. Sarfaty was unreasonable and merely a pretext for discrimination.
In Denhof, the court also found that the timing of the City's employment actions raised questions as to its stated reasons. Id., 545. Similarly here, the timing of the Town's action in placing the plaintiff on unpaid leave raises questions as to its motives. The plaintiff was placed on paid leave on February 17, 2006, ten days after the plaintiff described, in the federal litigation, the emotional symptoms he was experiencing. On June 5, 2006, Dr. Sarfaty issued his report expressing his view that it was "unwise" for the plaintiff to return to work. The plaintiff remained on paid leave at that time. It was not until after the Town received the report of Dr. Vincent on July 14, 2006, opining that the plaintiff was fit for duty, that the Town placed him on unpaid leave. A fact finder might reasonably ask why the Town would only place the plaintiff on unpaid leave after receiving a report from his doctor that he was fit for duty. One could conclude that if the Town was truly relying on Dr. Sarfaty's report the time to place the plaintiff on unpaid leave was immediately after receiving that report, not five weeks later after receiving a report stating a contradictory opinion.
Finally, the court in Denhof noted that the City made no effort to confer with the plaintiffs' doctors before taking action. Id., 546-47. Similarly, here the Town placed the plaintiff on unpaid leave despite receiving information from Dr. Vincent, who had seen the plaintiff for job related anxiety and depression on eleven occasions between September 19, 2005 and March 14, 2006, with two additional follow-ups in April and June of 2006. Pltf. Ex. 7. Dr. Vincent noted that "throughout all sessions there was never any indication that he was unfit for duty or presented any risk of harm to self or others." Id. In fact, Dr. Vincent noted that the plaintiff was placed on paid leave "after most of his symptoms had remitted." Id. There is no evidence to suggest that either the Town or Dr. Sarfaty attempted to engage Dr. Vincent in a discussion regarding his treatment of the plaintiff or his opinion. Instead, in response to Dr. Vincent the town placed the plaintiff on unpaid leave and Dr. Sarfaty communicated with Dr. Vincent only for the purpose of selecting a "tie-breaker" doctor. Sarfaty Aff., ¶ 11. These facts could cause a fact finder to reasonably question the Town's motive for placing the plaintiff on unpaid leave.
For much the same reasons that the Sixth Circuit reversed the district court in Denhof and for the other reasons stated above, the court finds that the evidence presented, viewed in a light most favorable to the plaintiff, could support a finding that the defendant's articulated reason for its actions was merely pretextual to cover up its discriminatory intent. Consequently, the defendant's motion for summary judgment as to the First Count is denied.
B. Second Count
The defendant has also moved for summary judgment as to the Second Count for a second reason. It argues that the Second Count is duplicative of the First Count. As compared to the First Count, the Second Count merely adds an allegation that the defendant's conduct was intentional and seeks common law punitive damages as an additional remedy. The defendant claims that any claim for discrimination must prove intentional conduct, making the Second Count superfluous; and further argues that the Town cannot be held liable for punitive damages because: (1) the CFEPA does not provide for such damages; and (2) a municipality cannot be subject to punitive damages on public policy grounds.
The plaintiff conceded at oral argument that the only thing the Second Count adds to the First Count is a claim for common law punitive damages. The plaintiff also conceded that the Appellate Court has recently addressed the question of whether the state can be liable for punitive damages in a CFEPA case. In Ware v. State, 118 Conn.App. 65, 983 A.2d 853 (2009), the Appellate Court was asked whether the remedies available to a plaintiff under the CFEPA included punitive damages. The defendant there made the same two arguments made by the defendant here. The Appellate Court did not reach the issue of whether the CFEPA generally provides for punitive damages as a remedy because it concluded that the doctrine of sovereign immunity precluded an award of punitive damages against the state. Id., 89. It held that while the state has waived its sovereign immunity to permit it to be sued under the CFEPA, that waiver does not extend to punitive damages. Id., 88-89. The Appellate Court's resolution of this question in Ware controls the resolution of the issue here. The defendant may not be held liable for punitive damages. Because there is no other purpose for the Second Count other than to state a claim for punitive damages the defendant's motion for summary judgment as to that count is granted.
The defendant also makes an argument that the plaintiff is barred from recovering back pay as damages. Such an argument is not properly raised in a motion for summary judgment. What damages, if any, the plaintiff may recover depends on the evidence presented at trial and may be considered by the jury if they conclude that the plaintiff has proved liability under the CFEPA. The defendant may very well be correct that the plaintiff will not be able to prove an entitlement to back pay. Even if he cannot though, there may be other elements of compensatory damages as to which he might present evidence. Further, it is unclear from the parties' filings whether the union grievance proceeding is resolved or when it will be resolved and how that resolution might affect this case.
IV. CONCLUSION CT Page 14214
The defendant's motion for summary judgment is DENIED as to the First Count. It is GRANTED as to the Second Count.