*1 The defendants, the city of New Haven, Alphonse Paolillo, Jr., and Salvatore DeCola, move for summary judgment on all counts of the plaintiff's complaint. The defendants argue that there is no evidence on which a fact finder could conclude that the plaintiff was reassigned as a patrol supervisor in September of 2016 due to his ethnicity. The defendants also argue that there is no evidence to conclude that the defendants, Alphonse Paolillo, Jr. or Salvatore DeCola, were negligent towards the plaintiff or conspired to engage in any unlawful conduct towards the plaintiff. The defendants, moreover, argue that the plaintiff's claims of negligence against the defendants, Paolillo and DeCola, in their official capacities, are barred by governmental immunity.

The plaintiff argues, in opposition, that the defendants have failed to carry their burden for summary judgment and argues further that the defendants' reliance on the special defense of governmental immunity is misplaced due to the plaintiff's allegations of the exceptions to governmental immunity. The plaintiff also argues that the defendants have failed to answer the operative revised complaint.

For the reasons set forth below, the defendant's motion is granted as to counts one, three, and five and denied as to counts two, four, and six.

On March 27, 2019, the plaintiff filed the operative revised complaint (operative complaint) against the defendants, the city of New Haven, Alphonse Paolillo, Jr., Salvatore DeCola, Dean Esserman, and Anthony Campbell.[1] The operative complaint alleges the following facts. The operative complaint was brought pursuant to the provisions of General Statutes § 46a-101 after the issuance of a release of jurisdiction by the Connecticut Commission on Human Rights and Opportunities (CHRO) on August 28, 2017. The plaintiff, a self-identified Hispanic male, was employed by the city of New Haven as a sergeant for the New Haven Police Department. At all relevant times, Paolillo and DeCola were elected members of the city of New Haven's Board of Aldermen, Esserman was the former Chief of the New Haven Police Department, and Campbell was the Chief of the New Haven Police Department. Paolillo and DeCola worked together on common issues affecting the East Shore geographic area of New Haven; Esserman and Campbell were responsible for effecting all assignments within the New Haven Police Department.

On February 22, 2015, Esserman appointed the plaintiff to the position of District Manager of District 9—East Shore/Morris Cove. The plaintiff was the first individual of Hispanic descent in the history of the New Haven Police Department to be appointed as a district manager. The plaintiff's district manager assignment was a supervisory position responsible for a geographic area of New Haven which included the represented geographic areas of Paolillo and DeCola.

*2 Upon the plaintiff's appointment to the position of district manager, the plaintiff was informed by Esserman that Paolillo was opposed to the appointment. The plaintiff attempted to communicate with Paolillo, who refused the plaintiff's attempts to meet with him. Paolillo also ignored telephone and e-mail communications from high ranking members of the New Haven Police Department. Within three months of serving as the District Manager of District 9, the plaintiff received a positive evaluation from Esserman before Esserman was replaced by Campbell. On September 11, 2016, a transfer/removal of the plaintiff was effected by Esserman and Esserman's replacement, Campbell, without a reason given for the transfer/removal. The plaintiff alleges that he was replaced by a self-identified Caucasian male with less experience and qualifications.

On March 27, 2019, the plaintiff filed the operative complaint. In count one, the plaintiff alleges discrimination on the basis of his ethnicity by the city of New Haven, acting by and through Paolillo, DeCola, Esserman, and Campbell, in violation of General Statutes § 46a-60.[2] In count two, the plaintiff alleges negligence per se against Paolillo in his individual capacity. In count three, the plaintiff alleges negligence per se against the city of New Haven, acting by and through Paolillo, in his official capacity. In count four, the plaintiff alleges negligence per se against DeCola in his individual capacity. In count five, the plaintiff alleges negligence per se against the city of New Haven, acting by and through DeCola in his official capacity. In count six, the plaintiff alleges civil conspiracy against Paolillo and DeCola in their individual capacities.

On July 12, 2019, the defendants, the city of New Haven, Paolillo, and DeCola, filed a motion for summary judgment as to all counts of the plaintiff's operative complaint. In support of their motion, the defendants submits the following exhibits: (1) the affidavit of Anthony Campbell, (2) the plaintiff's deposition testimony, (3) General Order 3.14 of the New Haven Department of Police Service, (4) the deposition testimony of Luiz A. Casanova, (5) memoranda/correspondence to the plaintiff from members of the New Haven Police Department, (6) the affidavit of Rose Turney, (7) the plaintiff's transfer letter, (8) the affidavit of Alphonse Paolillo with an attached exhibit of Vincent Anastasio's email correspondence to Alphonse Paolillo, (9) the affidavit of Elisa Tuozzoli, (10) the affidavit of Craig Miller, and (11) the plaintiff's reassignment letter. In their memorandum in support of their motion for summary judgment, the defendants argue that there is no evidence upon which a fact finder could conclude that the plaintiff was reassigned as a patrol supervisor in September of 2016 due to his ethnicity. Also, the defendants contend that there is no evidence to conclude that Paolillo or DeCola were negligent toward the plaintiff or conspired to engage in any unlawful conduct towards the plaintiff. Additionally, the defendants contend that the plaintiff's claims of negligence against Paolillo and DeCola in their official capacities are barred by governmental immunity. On August 15, 2019, the plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment on the grounds that the defendants have failed to carry their burden for summary judgment and that the defendants' reliance on the special defense of governmental immunity is misplaced due to the plaintiff's allegations of the exceptions to governmental immunity. The plaintiff also contends that the defendants have failed to answer the operative revised complaint.[3] The defendants, including Esserman and Campbell, filed a reply on September 10, 2019. On September 11, 2019, the plaintiff filed a request for leave to file a surreply to the defendants' reply memorandum. On September 16, 2019, the court heard the parties' arguments at short calendar.

*3 Before reaching the merits of the defendants' motion for summary judgment, this memorandum will first address the procedural objections that the plaintiff has raised to the defendants' motion. The plaintiff argues that the defendants have submitted exhibits and supporting documents that do not comply with the requirements set forth in Practice Book § 17-46, the Connecticut Code of Evidence, and relevant case law.[4] The plaintiff argues, inter alia, that the defendants have failed to provide any admissible evidence in support of their motion for summary judgment. “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.” Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). “[I]n considering a motion for summary judgment, [i]t is within the court's discretion whether to accept or decline [to accept] ... supplemental evidence.” Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 364, 143 A.3d 638 (2016).

The plaintiff first argues that the defendants' motion for summary judgment should be denied because the defendants' motion addresses the plaintiff's superseded amended complaint dated January 9, 2018. The defendants' motion for summary judgment is directed to the plaintiff's amended complaint dated January 9, 2018. The operative complaint, however, contains nearly identical allegations to the amended complaint.[5] Therefore, this memorandum will consider the motion as directed to the operative revised complaint filed on March 27, 2019.

Next, the plaintiff objects to the affidavit of the former Police Chief for the New Haven Police Department, Anthony Campbell. The plaintiff argues that Campbell's affidavit contains hearsay in paragraph 8, paragraphs 7 and 14 are contradictory and therefore unreliable, and the affidavit does not qualify as an affidavit pursuant to Practice Book § 17-46 because it does not contain an oath.

Practice Book § 17-45(a) provides: “A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents.” “[A]lthough containing the phrase including but not limited to, [Practice Book § 17-45] contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ... [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment. Therefore, before a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.” (Citation omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).

*4 Practice Book § 17-46 provides: “Supporting 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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”

First, the plaintiff argues that Campbell's affidavit asserts hearsay rather than facts based on personal knowledge. In the defendants' reply memorandum, the defendants argue that any hearsay statements contained in Campbell's affidavit are not offered for the truth of the matter, but rather to explain Campbell's motivation. Paragraph 8 of Campbell's affidavit provides: “After I had heard that Sergeant Wilfredo Cruz no longer wanted to serve as District Manager due to personal reasons, on September 14, 2016, I reassigned him from District Manager of District 9.” Defs.' Mem. Summ. J., Ex. 1.

“An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay.” (Internal quotation marks omitted.) Housing Authority v. Deleon, 79 Conn.App. 300, 307, 830 A.2d 298 (2003). “It is well settled that statements offered not for the truth of the matter asserted, but for the effect on the listener, are not testimonial hearsay statements.” State v. Nelson, 144 Conn.App. 678, 690, 73 A.3d 811, cert. denied, 310 Conn. 935, 79 A.3d 888 (2013), citing C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 8.8.1, p. 471 (“[s]tatements of others that show effect on the hearer or reader are not hearsay on such issues as notice, intent, reasonableness or good faith on the part of the hearer or reader”). Because the statement in paragraph 8 is being offered for the purpose of showing its effect on Campbell, it will be considered for purposes of this memorandum.

Next, the plaintiff objects to paragraphs 7 and 14 of Campbell's affidavit as contradictory and, therefore, unreliable. Outside of his conclusory assertion with regard to paragraphs 7 and 14, the plaintiff does not set forth a basis to support his contention. In Campbell's affidavit, paragraph 7 provides: “Historically, District Managers were lieutenants. However, when there was a shortage of lieutenants, some sergeants were assigned as District Managers.” Defs.' Mem. in Supp. Summ. J., Ex. 1. Paragraph 14 of Campbell's affidavit provides: “Accordingly, like Sergeant Roy [Davis], Sergeant Cruz was not eligible to serve as a District Manager.” Defs.' Mem. in Supp. Summ. J., Ex. 1. Campbell's affidavit also states that the assignment of district managers were made at the chief of police's discretion and that in July of 2017, Campbell decided that an officer had to have the rank of lieutenant in order to serve as a district manager. See Defs.' Mem. in Supp. Summ. J., Ex. 1. Additionally, Campbell states that this decision, which was made after the plaintiff's reassignment from district manager, caused the removal of Sergeant Roy Davis. See Defs.' Mem. in Supp. Summ. J., Ex. 1. Campbell's affidavit, when taken as a whole, does not set forth a basis to support the plaintiff's contention that paragraphs 7 and 14 are contradictory.

Last, the plaintiff argues that Campbell's affidavit does not qualify as an affidavit pursuant to Practice Book § 17-46 because it does not contain an oath. The final statement of Campbell's affidavit provides: “The above is stated by me to be true and accurate to the best of my information and belief under pains and penalties of perjury.” Campbell's statement is sufficient to meet the requirements of Practice Book § 17-46. See Practice Book § 17-46; Bank of America, N.A. v. Linkasamy, Superior Court, judicial district court of Fairfield, Docket No. CV-16-6061126-S (October 30, 2017, Truglia, J.) (“In Connecticut, the individual taking the oath need not expressly indicate that the affiant swore to the contents of the affidavit 'under penalty of perjury.' Rather, the affidavit need only be signed and sworn to ... In the present case, the affidavit submitted by the plaintiff is signed and sworn to in the usual customary manner and, thus, is legally sufficient” [citation omitted] ); Dixon v. Bridgeport & Port Jefferson Steamboat Co., Superior Court, judicial district of New Haven, Docket No. CV-08-6002891-S (October 15, 2010, Zoarski, J.T.R.) (“The failure to include statements regarding the obligation of an oath is also inapposite. While § 17-46 requires the affidavit affirmatively show that the affiant is competent to testify, it does not by its own terms require a specific statement regarding the ability to understand the nature of an oath”).

*5 The plaintiff objects to the exhibit of his deposition transcript because the plaintiff argues that it is unreliable; the plaintiff argues that the deposition transcript does not fully represent the plaintiff's case and positions of law and fact. The plaintiff does not provide any evidence in support of his opposition to the court's consideration of his own deposition testimony. Instead, the plaintiff cites to several cases which primarily stand for the proposition that the movant in a motion for summary judgment cannot rely solely upon deposition testimony to establish the nonexistence of any genuine issue of material fact because deposition testimony is not a judicial admission and may be contradicted at trial. See Pl's Mem. in Opp'n to Defs.' Mot. Summ. J., p. 12.

“While [a] plaintiff's deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.” Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996). The plaintiff's deposition testimony, therefore, will be considered for purposes of this memorandum.

The plaintiff objects to exhibits 3, 5, 7, and 11 because the plaintiff argues that the exhibits contain hearsay; the plaintiff also argues that the exhibits contain unauthenticated statements in violation of Practice Book § 17-46 and are without a proper foundation. Exhibit 3 is the General Order 3.14 of the New Haven Department of Police Service, exhibit 5 is the attached memoranda/correspondence to the plaintiff from members of the New Haven Police Department, exhibit 7 is the plaintiff's transfer letter to the assignment of district manager, and exhibit 11 is the plaintiff's reassignment letter from the assignment of district manager.

“[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be ... Additionally, in considering a motion for summary judgment, [i]t is within the court's discretion whether to accept or decline [to accept] ... supplemental evidence.” (Citations omitted; internal quotation marks omitted.) Bruno v. Geller, supra, 136 Conn.App. 714-15.

During the plaintiff's deposition, the plaintiff testified to his personal knowledge of exhibits 3, 5, 7, and 11. In response to the defense counsel's inquiry as to whether exhibit 3 was “an accurate description of the responsibilities as you understood it for district manager,” the plaintiff answered, “[y]es.” See Pl.'s Dep., p. 117-18. The plaintiff also testified that “I'm familiar with that they are all my assignments throughout the years” in response to the defense counsel's inquiry as to the plaintiff's familiarity with exhibit 5. See Pl.'s Dep., p. 110-11. Furthermore, the plaintiff testified to the accuracy of the transfer and reassignment letters upon their presentation to the plaintiff. See Pl.'s Dep., p. 120-21. Thus, exhibits 3, 5, 7, and 11 of the defendants' motion for summary judgment are authenticated by the plaintiff's testimony at his deposition testimony. See Targonski v. Clebowicz, 142 Conn.App. 97, 112-13, 63 A.3d 1001 (2013) (holding that a defendant's testimony at his deposition operated to authenticate documentary evidence). Exhibits 3, 5, 7, and 11, however, contain inadmissible hearsay. Absent any attempt by the defendants to satisfy any hearsay exception that would render the aforementioned documentary evidence admissible, exhibits 3, 5, 7, and 11 shall not be considered for purposes of this memorandum.

*6 The plaintiff also objects to the affidavits of Rose Turney, Eliza Tuozzoli, and Craig Miller on the grounds that the affidavits contain hearsay and assert opinions/belief rather than facts based upon personal knowledge. The affidavits of Turney, Tuozzoli, and Miller each purport separately that they “have personal knowledge of the matters stated herein.” See Defs.' Mem. in Supp. Summ. J., Ex. 6; Defs.' Mem. in Supp. Summ. J., Ex. 9; Defs.' Mem. in Supp. Summ. J., Ex. 10. To the extent that the affidavits of Turney, Tuozzoli, and Miller contain statements made by the plaintiff, that evidence is admissible as statements by a party opponent under an exception to the hearsay rule. See Conn. Code Evid. § 8-3(1).[6]

The plaintiff also argues that the affidavits of Turney, Tuozzoli, and Miller do not contain an oath and, accordingly, do not qualify as an affidavit pursuant to Practice Book § 17-46. The affidavits of Turney, Tuozzoli, and Miller each state that “[t]he above is stated by me to be true and accurate to the best of my information and belief under pains and penalties of perjury.” See Defs.' Mem. in Supp. Summ. J., Ex. 6; Defs.' Mem. in Supp. Summ. J., Ex. 9; Defs.' Mem. in Supp. Summ. J., Ex. 10. The statements of Turney, Tuozzoli, and Miller testifying to the accuracy of their statements are sufficient to meet the requirements of Practice Book § 17-46. See Practice Book § 17-46; Bank of America, N.A. v. Linkasamys, supra, Superior Court, Docket No. CV-16-6061126-S; Dixon v. Bridgeport & Port Jefferson Steamboat Co., supra, Superior Court, Docket No. CV-08-6002891-S.

Additionally, the plaintiff objects to the affidavit of the defendant Paolillo and its attached e-mail on the grounds that the affidavit contains irrelevant and immaterial statements by Paolillo. In his affidavit, Paolillo testified that he served on the New Haven Board of Aldermen until 2017 and that he did not have any authority over the selection of the district manager as an alderman. Paolillo also testified that Lieutenant Vincent Anastasio sent an e-mail to Paolillo expressing concerns about the plaintiff's assignment as District Manager for District 9.

Paolillo's statements with regard to his authority over the selection of the district manager and his recitation of the e-mail sent from Lieutenant Anastasio are relevant and material to the plaintiff's claims of discrimination, negligence per se, and civil conspiracy against Paolillo.

The plaintiff also objects on the grounds that the attached e-mail is an unauthenticated document and contains inadmissible double hearsay. “The requirement of authentication applies to all types of evidence, including writings, sound recordings, electronically stored information ...” Conn. Code Evid. § 9-1(a), commentary. “Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.” New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). “[T]he showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege ... Rather, there need only be a prima facie showing of authenticity to the court ... Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the [finder of fact], which will ultimately determine its authenticity.” (Internal quotation marks omitted.) State v. Smith, 179 Conn.App. 734, 762, 181 A.3d 118, cert. denied, 328 Conn. 927, 182 A.3d 637 (2018).

*7 “The category of evidence known as electronically stored information can take various forms. It includes, by way of example only, e-mails, Internet website postings, text messages and chat room content, computer stored records and data, and computer generated or enhanced animations and simulations.” State v. Papineau, 182 Conn.App. 756, 788, 190 A.3d 913, cert. denied, 330 Conn. 916, 193 A.3d 1212 (2018). “[T]he emergence of social media such as email, text messaging and networking sites like Facebook may not require the creation of new rules of authentication with respect to authorship. An electronic document may continue to be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of distinctive characteristics in the document that identify the author.” Id., 790.

In the present matter, Paolillo's affidavit attests to his personal knowledge of the matters stated in his affidavit and the true and accurate representation of the statements in his affidavit, which includes Paolillo's statement that “[o]n or about February 11, 2015, Lieutenant Vincent Anastasio sent me an email expressing concerns he had regarding the assignment of Wilfredo Cruz as District manager for District 9, which includes in part the ward I represented. A copy of that email is attached hereto as Exhibit A,” See Defs.' Mem. in Supp. Summ. J., Ex. 8. Furthermore, a prima facie showing of the authenticity of the e-mail bears distinctive characteristics that support its authenticity. The copy of the e-mail bears the traditional indicia of an e-mail header that details the sender, recipient, time of delivery, and subject of the e-mail. In the “To:” and “From” header, Lieutenant Anastasio is identified as the sender of the e-mail. Additionally, the e-mail addresses of the sender and the recipient contain an abbreviation of Lieutenant Anastasio and Paolillo's names, respectively, with the distinctive “@” symbol that is widely known to be a part of an email address. The defendants, here, have presented sufficient evidence to demonstrate that the copy of the e-mail is what the defendants claim it to be.

The plaintiff also argues that the e-mail contains inadmissible double hearsay for which no exceptions have been claimed by the defendants. The defendants argue that the statements made by others do not constitute hearsay because it is being offered for its effect on the hearer or reader.

“Statements admitted to show the effect on the hearer are not hearsay, but they should not be admitted for that purpose unless it is clear that the hearer's state of mind or subsequent conduct is relevant.” (Internal quotation marks omitted.) O'Shea v. Mignone, 35 Conn.App. 828, 833, 647 A.2d 37, cert. denied, 231 Conn. 938, 651 A.2d 263 (1994). “Trial courts have broad discretion in determining the relevancy of evidence ... Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.” (Citation omitted; internal quotation marks omitted.) Id., 834.

Here, Paolillo testified in his affidavit that Lieutenant Anastasio sent the attached e-mail expressing concerns to the assignment of the plaintiff as District Manager for District 9. The attached e-mail consists of Lieutenant Anastasio's statements expressing his concern about the plaintiff's assignment. The e-mail also includes a statement from the plaintiff where the plaintiff acknowledged that “there should be some time spent supervising officers.” See Defs.' Mem. in Supp. Summ. J., Ex. 8, Ex. A. The plaintiff's statement is admissible as a statement by a party opponent under an exception to the hearsay rule. See Conn. Code Evid. § 8-3(1). Lieutenant Anastasio's statements do not constitute hearsay to the extent that the statements are being offered to show its effect on Paolillo's state of mind or subsequent conduct. Paolillo's state of mind or subsequent conduct in response to Lieutenant Anastasio's statement expressing his concern about the plaintiff's assignment is relevant to potential issues in this case.

*8 Lastly, the plaintiff argues that the e-mail appears to have been altered because the name of the defense counsel appears on the document and because of the absence of the sender policy framework, domain keys identified mail, and domain-based message authentication data from the e-mail. The plaintiff's argument is more appropriately directed to the weight that the finder of fact, which will ultimately determine the e-mail's authenticity, should give to the evidence. See Rosa v. Lawrence & Memorial Hospital, 145 Conn.App. 275, 293, 74 A.3d 534 (2013) (“[T]here need only be a prima facie showing of authenticity to the court ... Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which will ultimately determine its authenticity” [internal quotation marks omitted] ).

Turning to the substance of the defendants' motion, the defendants move for summary judgment on all counts of the plaintiff's complaint. The defendants contend that there is no evidence on which a fact finder could conclude that the plaintiff was reassigned as patrol supervisor in September of 2016 due to his ethnicity. The defendants also contend that there is no evidence to conclude that Paolillo and DeCola were negligent toward the plaintiff or conspired to engage in any unlawful conduct toward the plaintiff. Lastly, the defendants argue that the plaintiff's claims of negligence against Paolillo and DeCola, in their official capacities, are barred by governmental immunity. Each of the defendants' arguments will be addressed in turn.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).

“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 ... A material fact ... [is] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).

“Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment.” (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).

“[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).

*9 “[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated ... The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.” (Internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn.App. 778, 793, 57 A.3d 794 (2012).

The defendants move for summary judgment as to count one of the plaintiff's operative complaint on the ground that the plaintiff cannot establish a prima facie case of discrimination because the plaintiff did not suffer an adverse employment action. The defendants argue that the plaintiff's reassignment from district manager to patrol supervisor did not constitute an adverse employment action.

The plaintiff's claim of discrimination in employment arises under the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. Our Supreme Court previously has determined that “Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws.” (Internal quotation marks omitted.) Patino v. Birken Manufacturing Co., 304 Conn. 679, 689, 41 A.3d 1013 (2012). Therefore, “[i]n interpreting our antidiscrimination and antiretaliation statutes, we look to federal law for guidance.” (Internal quotation marks omitted.) Amato v. Hearst Corp., 149 Conn.App. 774, 779, 89 A.3d 977 (2014).

“The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny ... We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both ... Under this analysis, the employee must first make a prima facie case of discrimination ... In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question ... The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias.” (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73-74, 111 A.3d 453 (2015).

“A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment ... An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities ... Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” (Citations omitted; internal quotation marks omitted.) Vega v. Hempstead Union Free School District, 801 F.3d 72, 85 (2d Cir. 2015).

*10 “Whether an employment action is adverse is an objective determination. [I]f a transfer is truly lateral and involves no significant changes in an employee's condition of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of a transfer adverse employment action ... Changes in duties or working conditions that cause no material disadvantage, such as plaintiff's reassignment will not establish the adverse conduct required to make a prima facie case.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) Bright v. Le Moyne College, 306 F.Sup.2d 244, 253 (N.D.N.Y. 2004).

“[A] transfer is an adverse employment action if it results in a change of responsibilities so significant as to constitute a setback to the plaintiff's career ... The key ... is that the plaintiff must show that the transfer created a materially significant disadvantage.” (Citations omitted; internal quotation marks omitted.) Galabya v. New York City Board of Education, 202 F.3d 636, 641 (2d Cir. 2000). In demonstrating a materially significant disadvantage, the “plaintiff [must] proffer objective indicia of material disadvantage; subjective, personal disappointment is not enough.” (Internal quotation marks omitted.) Beyer v. Nassau, 524 F.3d 160, 164 (2d Cir. 2008). “Although a transfer from an elite unit to a less prestigious unit could constitute an adverse employment action, a plaintiff cannot rely on her own opinion of the difference in prestige levels to withstand a motion for summary judgment.” (Internal quotation marks omitted.) Flynn v. New York State Division of Parole, 620 F.Sup.2d 463, 485-86 (S.D.N.Y. 2009), citing Dillon v. Morano, 497 F.3d 247, 254-55 (2d Cir. 2007).

In the present case, the defendants argue that the assignment of district manager is not a promotion, but merely an assignment that is made at the discretion of the police chief. Additionally, the defendants argue that assignments do not require an exam and do not result in any change in pay or benefits. In opposition to the defendants' contention, the plaintiff contends that the plaintiff's prima facie case of discrimination has already been determined by findings of fact through the CHRO and argues that the defendants have not challenged the findings of the CHRO.[7] As support, the plaintiff has attached an exhibit of the CHRO's investigation of the plaintiff's CHRO complaint and cites to several Connecticut Supreme Court cases for the proposition that “the determination of factual issues is a matter within the province of the administrative agency.” The cases cited by the plaintiff are inapposite. All of the cited cases arise out of final decisions by various administrative agencies.[8] To the contrary, the CHRO's investigation prior to the present proceeding before the court was not a final decision of the CHRO, but a processing of the CHRO complaint.[9] See General Statutes § 46a-84(b).

*11 In this present matter, the defendant has presented evidence of the plaintiff's deposition testimony, whereupon the plaintiff stated that the requirements for being promoted was based strictly on an exam. See Pl.'s Dep., p. 39-40. The plaintiff stated in his deposition that he was reassigned to the patrol supervisor position and that the reassignment lacked any change in the plaintiff's pay rate. See Pl.'s Dep., p. 75-76. The plaintiff has not presented any evidence contradicting the defendant's evidence or filed a contradictory competent affidavit or any other evidence that would raise a genuine issue of material fact as to whether the plaintiff's reassignment created a materially significant disadvantage. Accordingly, the defendants are entitled to summary judgment as to the first count of the plaintiff's operative complaint.

In counts two and four, the plaintiff alleges negligence per se against Paolillo and DeCola in their individual capacities. In counts three and five, the plaintiff alleges negligence per se against the city of New Haven, acting by and through Paolillo and DeCola in their official capacities, respectively. The defendants make several arguments in favor of the court granting their motion for summary judgment on counts two, three, four, and five. The defendants argue that there is an absence of legal authority which provides that a provision of a city charter, such as the New Haven City Charter, establishes a standard of care for a negligence per se action. The defendants argue that the provisions at issue do not proscribe a standard by which to evaluate conduct. The defendants have failed to put forth controlling authority that a provision of a city charter does not establish a standard of care for a negligence per se action.

The defendants also argue that the New Haven City Charter does not apply to Paolillo and DeCola in their individual capacities because the language of the provisions only pertain to public officials. In response, the plaintiff argues that the plain language of the provisions does not distinguish between public officials acting in their individual or official capacities. The defendants have not provided the court with evidence that negates the plaintiff's contention that the plain language of the provisions does not distinguish between public officials acting in their individual or official capacities.

The defendants also assert that the plaintiff has not produced any admissible evidence that Paolillo or DeCola had any conflict of interest or any evidence that they interfered or sought to interfere with the plaintiff's duties while he served as District Manager of District 9. The defendants' assertions, here, are misplaced. With regard to a claim of negligence per se, “a violation of a statute or regulation will establish a breach of duty necessary to maintain an action for negligence per se only if (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent.” (Internal quotation marks omitted.) Plainville v. Almost Home Animal Rescue and Shelter, Inc., 182 Conn.App. 55, 66, 187 A.3d 1174 (2018). “A plaintiff must satisfy both conditions to establish liability as a result of a statutory violation.” Id., 66. The defendants have not established that the plaintiff has not met either of the conditions.

Last, the defendants argue that General Statutes § 52-557n applies to the extent that there is any evidence of either Paolillo or DeCola acting negligently toward the plaintiff in their capacities as aldermen. General Statutes § 52-557n(a) provides in relevant part: “(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

*12 “Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ... Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006).

“[F]or the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.” Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010). “[T]he determination of whether a governmental or ministerial duty exists gives rise to a question of law for resolution by the court.” Ventura v. East Haven, 330 Conn. 613, 634, 199 A.3d 1 (2019).

“In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling an employee of a political subdivision] to [act] in any prescribed manner.” (Internal quotation marks omitted.) Washburne v. Madison, 175 Conn.App. 613, 623, 167 A.3d 1029 (2017), cert. denied, 330 Conn. 971, 200 A.3d 1151 (2019). “Our case law also has made clear that a plaintiff bringing a cause of action against a municipality or government officials must allege and, thus, demonstrate the existence of a genuine issue of material fact, that the acts or omissions complained of are ministerial, rather than discretionary, in nature.” Lewis v. Newtown, 191 Conn.App. 213, 231, 214 A.3d 405, cert. denied, 333 Conn. 919, 216 A.3d 650 (2019). Furthermore, our Appellate Court held previously that evidence of a policy that merely states general responsibilities without “provisions that mandate the time or manner in which those responsibilities are to be executed, leaving such details to the discretion and judgment of the municipal employees,” is insufficient to show that the act is ministerial. See Northrup v. Witkowski, 175 Conn.App. 223, 238, 167 A.3d 443 (2017), aff'd, 332 Conn. 158, 210 A.3d 29 (2019). “Therefore, if there is no directive setting forth the manner in which a municipal official is to perform the act, then the act is not ministerial and is therefore discretionary in nature.” Kusy v. Norwich, 192 Conn.App. 171, 178, 217 A.3d 31, cert. denied, 333 Conn. 931, 218 A.3d 71 (2019).

In the present case, the plaintiff fails to demonstrate the existence of a genuine issue of material fact that the acts or omissions complained of are ministerial, rather than discretionary, in nature. The plaintiff alleges that Paolillo and DeCola, respectively, had a duty or duties pursuant to the New Haven City Charter, Section 125/8-4(g) and (h) which provides: “Public officials and municipal employees shall avoid any action or activity that constitutes or gives rise to a conflict of interest” and “Public officials shall not interfere or seek to interfere with the duties or responsibilities of other public officials or municipal employees over whom they do not have supervisory authority or responsibility.” It is clear that the provisions do not contain a directive compelling public officials to perform the acts in a prescribed manner.

In opposition, the plaintiff argues that the defendants are not entitled to governmental immunity as a defense. The plaintiff contends that he has alleged exceptions to governmental immunity and that the defendants have not offered any admissible evidence to negate these allegations.

*13 “Liability for a municipality's discretionary act is not precluded when (1) the alleged conduct involves malice, wantonness or intent to injury; (2) a statute provides for a cause of action against the municipality or municipal official for failure to enforce certain laws; or (3) the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject to an identifiable person to imminent harm ...” (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 434 n.13, 165 A.3d 148 (2017).

Concerning the counts alleging negligence per se, only the third exception has any applicability.[10] “[Our Supreme Court] has recognized an exception to discretionary act immunity that allows for liability when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... This identifiable person-imminent harm exception has three requirements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ... All three must be proven in order for the exception to apply ... [T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues ... properly left to the jury.” (Internal quotation marks omitted.) Kusy v. Norwich, supra, 192 Conn.App. 182-83.

“[T]he criteria of 'identifiable person' and 'imminent harm' must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.” (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 607. “The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims, as well as identifiable individuals.” Cotto v. Board of Education, 294 Conn. 265, 274, 984 A.2d 58 (2009). “[T]he only identifiable class of foreseeable victims that [our Supreme Court] [has] recognized for these purposes is that of schoolchildren attending public schools during school hours because ... they were legally required to attend school rather than being there voluntarily ... The rule has been narrowly applied outside of the public school context ... and the few cases in which a specific plaintiff has been held to be an identifiable victim are largely limited to their facts.” (Internal quotation marks omitted.) Texidor v. Thibedeau, 163 Conn.App. 847, 862, 137 A.3d 765, cert. denied, 321 Conn. 918, 136 A.3d 1276 (2016). “[T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.” Haynes v. Middletown, 314 Conn. 303, 322-23, 101 A.3d 249 (2014).

*14 Our Supreme Court has clarified that imminent harm is found “only in the clearest cases.” Cotto v. Board of Education, supra, 294 Conn. 276. In this present matter, the plaintiff has not raised a genuine issue of material fact as to whether the alleged harm that befell the plaintiff was an imminent harm within the meaning of the identifiable person-imminent harm exception. The plaintiff has failed to submit any evidence demonstrating that a dangerous condition was so likely to cause harm that the defendants had a clear and unequivocal duty to act immediately to prevent the harm. Accordingly, the identifiable person-imminent harm exception, here, does not apply because the exception requires that all three requirements be established in order for the exception to apply.

Thus, the defendants' motion for summary judgment is granted as to counts three and five. A genuine issue of material fact remains, however, as to whether the plaintiff's allegations of negligence per se applies to Paolillo and DeCola in their individual capacities, and therefore, the defendants' motion for summary judgment as to counts two and four are denied.

In count six, the plaintiff alleges a claim of civil conspiracy against Paolillo and DeCola each in their individual capacities. The defendants argue that there is no basis for a claim o conspiracy because the evidence demonstrates that Paolillo and DeCola did not engage in any unlawful activity towards the plaintiff. The defendants also argue that the plaintiff testified that he was not aware of any evidence suggesting that Paolillo and DeCola unlawfully conspired against him.

“[T]he purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor's conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing.” Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 636, 894 A.2d 240 (2006). “The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.” (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003). “[A] claim of civil conspiracy must be joined with an allegation of a substantive tort.” Id., 779 n.37.

In their memorandum in support of their motion to dismiss, the defendants cite to the plaintiff's deposition testimony in which the plaintiff stated that he did not have knowledge of any interaction between Paolillo and DeCola with regard to the plaintiff.[11] See Pl.'s Dep., p. 109. The plaintiff's deposition testimony, however, does not establish the absence of a genuine issue of material fact as to the plaintiff's claim for civil conspiracy. In his deposition testimony, the plaintiff also stated that he believed there was evidence of a civil conspiracy between Paolillo and DeCola because they would not communicate with the plaintiff. Moreover, the plaintiff repeatedly stated that Paolillo and DeCola would not communicate with him during the plaintiff's role as district manager. See Pl.'s Dep., p. 34-35, 137-39. Upon review of the submitted evidence, the defendants have not presented sufficient evidence establishing the absence of a genuine issue of material fact with regard to the plaintiff's claim of civil conspiracy. Thus, the defendants have failed to meet their burden in demonstrating the absence of any genuine issue of material fact and, therefore, summary judgment is denied as to count six.

*15 For the reasons set forth herein summary judgment is granted as to counts one, three, and five and denied as to counts two, four, and six.

The city of New Haven, Alphonse Paolillo, Jr., Salvatore DeCola, Dean Esserman, and Anthony Campbell were all named as defendants to this action. The city of New Haven, Paolillo, and DeCola have filed this motion for summary judgment and will be referred to, collectively, as the defendants or, individually, by name for purposes of this memorandum. The other defendants, Esserman and Campbell, will be referred to by name as appropriate.

The plaintiff does not allege the section of General Statutes § 46a-60 that he is relying on as a basis for his cause of action. “Although a plaintiff generally is required to identify specifically any statute on which a particular action is grounded ... our courts repeatedly have recognized that [this rule] is directory and not mandatory ... The plaintiff is not barred from recovery thereby as long as the defendant sufficiently was apprised of the nature of the action.” (Citations omitted; internal quotation marks omitted.) Brewster Park, LLC v. Berger, 126 Conn.App. 630, 636, 14 A.3d 334 (2011). Here, the defendants were sufficiently apprised of the nature of the action. Accordingly, this court will analyze the plaintiff's claims as if he properly alleges violations of § 46a-60(b)(1). Section 46a-60(b)(1) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... [f]or an employer, by the employer or the employer's agent ... to discriminate against [an] individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry ...”

On July 19, 2019, the plaintiff filed a motion for default for defendants' failure to plead to the operative revised complaint (#151.00). The clerk denied the motion (#151.10) because the responsive pleading was filed.

The plaintiff also argues that his filing of a motion to strike (#155.00) the named defendants' special defenses would, if granted, deprive the defendants of the grounds for their assertion of governmental immunity within their motion for summary judgment. The court, Kamp, J., (#155.10) denied the plaintiff's motion to strike as to the named defendants' first special defense alleging that the plaintiff's claims in counts two, three, four, and five of the plaintiff's operative complaint are barred by General Statutes § 52-577n, but granted the plaintiff's motion to strike as to the second special defense alleging that the plaintiff failed to mitigate his damages.

In response to the court's order (#104.10) regarding the defendants' request to revise, the plaintiff's operative complaint contains the following revisions. The operative complaint separates the two counts of the amended complaint alleging negligence per se against Paolillo and DeCola in their individual and official capacities into two separate counts alleging negligence per se against Paolillo and DeCola in their individual capacities and, additionally, two separate counts alleging negligence per se against the city of New Haven, acting by and through Paolillo and DeCola, respectively, in their official capacities. The operative complaint also revised the amended complaint to include specific acts and/or omissions taken by DeCola that constituted a breach of DeCola's duty or duties pursuant to the New Haven City Charter.

Section 8-3(1) of the Connecticut Code of Evidence provides in relevant part: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... A statement that is being offered against a party and is (A) the party's own statement, in either an individual or a representative capacity ...”

The plaintiff also cites to Ledan v. Danbury, Superior Court, judicial district of Waterbury, Complex Litigation, Docket No. X01-CV-04-4001301-S (July 18, 2006, Sheedy, J.) [41 Conn. L. Rptr. 750]. Specifically, the plaintiff cites to the Ledan court's analysis on whether the plaintiff in Ledan could assert a claim for retaliation. See Pl.'s Mem. in Opp'n to Defs.' Mot. Summ. J., p. 22-23. Our Superior Court in Ledan addressed a defendant's motion for summary judgment on a plaintiff's sexual harassment/hostile work environment claim and retaliation claim. See id. Within its analysis of the issue of whether the plaintiff could establish a claim for retaliation, the Ledan court stated that “[t]he Court in [Burlington Northern & Santa Fe Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)] concluded the anti-retaliation provision of our federal law did not confine the prohibited actions and harms to those related to employment or occurring in the workplace but instead covered only those employer actions that would have been materially adverse to a reasonable employee ... Reference to reactions of a reasonable employee enunciates an objective standard for judging harm. What is materially adverse to a reasonable employee is a jury question.” (Citation omitted; internal quotation marks omitted.) See id. In this present matter, the plaintiff's reliance on Ledan is misplaced as the plaintiff, here, is not asserting a claim for retaliation. But see White v. Middletown, 45 F.Sup.3d 195, 217 (D.Conn. 2014) (“For purposes of a retaliation claim, an adverse action need not be an action that affects the terms and conditions of employment ... Rather, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” [citation omitted; internal quotation marks omitted] ). Nonetheless, Connecticut courts have granted summary judgment on the basis of the absence of an adverse employment action and the resulting failure to make out a prima facie case. See, e.g., Boucher v. Saint Francis GI Endoscopy, LLC, 187 Conn.App. 422, 430, 202 A.3d 1056 (2019) (“[w]e agree with the defendant that it is entitled to summary judgment because the plaintiff failed to allege facts that, if proven, would establish an adverse employment action”), cert. denied, 331 Conn. 905, 201 A.3d 1023; Fernandez v. Mac Motors, Inc., Superior Court, judicial district of Hartford, Docket No. CV-17-6080550-S (November 13, 2019, Peck, J.T.R.) (granting summary judgment as to count alleging gender discrimination due to plaintiff failing to demonstrate that she suffered an adverse employment action in order to establish a prima facie case for gender discrimination); Natale v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-186079090-S (October 29, 2019, Ozalis, J.) (granting summary judgment as to count alleging gender and sexual orientation discrimination upon finding that plaintiff's transfers were not adverse employment actions within the purview of McDonnell Douglas); Buonocore v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV-18-6077098-S (October 15, 2019, Wilson, J.) (granting summary judgment as to plaintiff's claim of race discrimination and retaliation due to plaintiff's failure to establish a genuine issue of material fact as to whether the alleged conduct constituted an adverse employment action).

Nancy G. v. Dept. of Children and Families, 248 Conn. 672, 733 A.2d 136 (1999) (appeal from decision of the adoption subsidy review board); Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 679 A.2d 347 (1996) (appeal from judgment of the trial court which upheld decision of the employment security board of review); Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987) (appeal from judgment of the trial court with regard to inland wetlands and watercourses agency's denial of application for a permit); Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980) (appeal from judgment of trial court with regard to conservation commission's denial of application); O'Donnell v. Police Commission, 174 Conn. 422, 389 A.2d 739 (1978) (appeal arising out of decision of police trial board); Norwich v. Norwich Fire Fighters, 173 Conn. 210, 377 A.2d 290 (1977) (appeal arising out of decision of state board of labor relations); Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976) (appeal arising out of decision by the commissioner of motor vehicles), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 345 A.2d 520 (1973) (appeal arising out of decision by the commissioner of motor vehicles); Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 282 A.2d 890 (1971) (appeal arising out of decision of water resources commission).

With regard to the discriminatory practice complaint procedure, General Statutes § 46a-83 outlines the procedure that the CHRO must follow. “Not later than fifteen days after the date of filing of any discriminatory practice complaint pursuant to subsection (a) or (b) of section 46a-82 ... the commission shall serve the respondent as provided in section 46a-86a with the complaint and a notice advising of the procedural rights and obligations of a respondent under this chapter.” General Statutes § 46a-83(a). “Not later than fifteen days after the date of (1) a mandatory mediation conference that fails to resolve a complaint, or (2) an early legal intervention decision to investigate a complaint, the executive director or the executive director's designee shall assign an investigator to process the complaint.” General Statutes § 46a-83(f). Section 46a-83(i) provides in relevant part: “After finding that there is reasonable cause to believe that a discriminatory practice has been or is being committed as alleged in the complaint, an investigator shall attempt to eliminate the practice complained of by conference, conciliation and persuasion not later than fifty days after the date of the finding. The refusal to accept a settlement shall not be grounds for dismissal of any complaint.” “No commissioner or employee of the commission may disclose, except to the parties or their representatives, what has occurred in the course of the commission's processing of a complaint, provided the commission may publish the facts in the case and any complaint that has been dismissed and the terms of conciliation when a complaint has been adjusted. Each party and his or her representative shall have the right to inspect and copy documents, statements of witnesses and other evidence pertaining to the complaint, except as otherwise provided by federal law or the general statutes.” General Statutes § 46a-83(j). “If the investigator fails to eliminate a discriminatory practice complained of pursuant to subsection (a) or (b) of section 46a-82 within fifty days of a finding of reasonable cause, the investigator shall, within ten days, certify the complaint and the results of the investigation to the executive director of the commission and to the Attorney General. The investigator's conclusion that conciliation has failed shall be conclusive on the issue.” General Statutes § 46a-84(a). “Upon ... certification of a complaint filed pursuant to subsection (a) or (b) of section 46a-82 ... the Chief Human Rights Referee shall appoint a human rights referee to act as a presiding officer to hear the complaint ... A hearing on a complaint filed pursuant to subsection (a) or (b) of section 46a-82 shall be commenced by convening a hearing conference not later than forty-five days after the certification of the complaint. Such hearing shall be a de novo hearing on the merits of the complaint and not an appeal of the commission's processing of the complaint prior to its certification.” General Statutes § 46a-84(b). “The commission, any respondent or any complainant, aggrieved by a final order of a presiding officer, may appeal to the Superior Court in accordance with section 4-183.” General Statutes § 46a-94a(a).

In count two of the operative complaint, the plaintiff alleges the following against Paolillo in relevant part: “The plaintiff was an identifiable and foreseeable victim of the defendant Paolillo's acts and/or omissions ... The defendant Paolillo knew or should have known that his acts and/or omissions would subject the plaintiff to imminent harm ... [t]he defendant Paolillo's acts were not undertaken in good faith ... [t]he defendant Paolillo's omissions were not the result of good faith on his part.” Revised Operative Compl. The plaintiff repeats and realleges the same allegations against DeCola in count four of the operative complaint. See Revised Operative Compl. Count three alleges in relevant part: “The defendant City of New Haven, acting by and through its agent and/or employee, Alphonse Paolillo, Jr., who acted in his official capacity as a City Alderman, is liable for the plaintiff's injuries and damages as a result of the defendant City of New Haven's negligent breach of the aforementioned City ordinance.” See Revised Operative Compl. Count three also incorporates the allegations against Paolillo in count two, absent the allegations that Paolillo's acts were not undertaken in good faith and that Paolillo's omissions were not the result of good faith. See Revised Operative Compl. Count five alleges in relevant part: “The defendant City of New Haven, acting by and through its agent and/or employee, Salvatore DeCola, who acted in his official capacity as a City Alderman, is liable for the plaintiff's injuries and damages as a result of the defendant City of New Haven's negligent breach of the aforementioned City ordinance.” See Revised Operative Compl. Count five incorporates the allegations against DeCola in count four absent the allegations that DeCola's acts were not undertaken in good faith and that DeCola's omissions were not the result of good faith. See Revised Operative Compl.

The defendants' reply memorandum in support of their motion for summary judgment contains the additional exhibits of the deposition testimonies of Paolillo and DeCola, which the defendants cite to as evidence that Paolillo and DeCola did not engage in any coordinated actions to remove the plaintiff as district manager or discuss having the plaintiff removed. For purposes of this memorandum, the deposition testimonies of Paolillo and DeCola will not be considered because the evidence was improperly presented by the defendants in their reply memorandum. See Pacheco v. Corcoran, Superior Court, judicial district of New Haven, Docket No. CV-12-6030271-S (October 21, 2014, Wilson, J.) (“the court will not consider the evidence improperly presented by the plaintiff in her reply memorandum”); Haynes Construction Co. v. Newtown, Superior Court, judicial district of Danbury, Docket No. CV-04-0352007-S (October 14, 2005, Schuman, J.) (“it is improper to raise new issues or present new evidence in a reply brief, because the opponent has no fair opportunity to respond”).