Marasco v. Connecticut Regional Vocational-Technical School System

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PHILIP A. MARASCO v. CONNECTICUT REGIONAL

VOCATIONAL-TECHNICAL SCHOOL SYSTEM

(AC 35169)

Beach, Sheldon and Bishop, Js.

Argued April 21—officially released September 30, 2014

(Appeal from Superior Court, judicial district of

Waterbury, Dooley, J.)

Philip A. Marasco, self-represented, the appellant

(plaintiff).

Colleen B. Valentine, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney gen-

eral, and Ann E. Lynch, assistant attorney general, for

the appellee (defendant).

Opinion

BISHOP, J. In this employment related case, the plain-

tiff, Philip A. Marasco, appeals from the summary judg-

ment rendered in favor of the defendant, the

Connecticut Regional Vocational-Technical School Sys-

tem (school system). On appeal, the plaintiff claims

that the trial court improperly determined that there

were no genuine issues of material fact as to whether

the school system had discriminated against him in

violation of General Statutes § 46a-601 or in violation

of the Age Discrimination in Employment Act of 19672

(ADEA). The plaintiff claims, as well, that the court

incorrectly rendered summary judgment in favor of the

school system on his claim for retaliation on the ground

that were there no genuine issues of material fact in

support of this claim.3

In response, the school system makes two conten-

tions. First, the school system claims that summary

judgment was appropriate on the state law discrimina-

tion and retaliation claims because there were no genu-

ine issues of material fact regarding these claims. The

school system asserts, as well, that although the court

correctly rendered summary judgment in its favor as

to the plaintiff’s federal ADEA claim, the court should

have done so on the ground of sovereign immunity and

not because of the absence of any genuine issue of

material fact. In furtherance of this argument, the

school system claims that neither the ADEA nor any

state statute operates to denude the state of its tradi-

tional immunity from suit or liability. We agree with

the school system.

The court’s memorandum of decision and the record

reveal the following undisputed facts and procedural

history. The school system is a state regional vocational

and technical school system that provides students with

the opportunity to learn a technology or trade while

completing their academic education. At some point in

2003, after the federal No Child Left Behind legislation4

had passed, the school system took under consideration

whether it should change its curriculum with regard to

classes on reading blueprints in an effort to increase

its focus on math, reading, and language arts classes.

Thereafter, Abigail L. Hughes, the superintendent of the

school system, approved of a curriculum change that

incorporated blueprint reading into trade specific

classes to significantly reduce the number of separate

classes dedicated solely to blueprint reading. The imple-

mentation of the curriculum change occurred on a

school-by-school basis. Each school principal was

asked to determine the best method for teaching blue-

print reading, given the school system’s curriculum

change as well as the federal and state educational

mandates, the individual school’s available resources,

and the students’ interest in the course. Teachers who

taught blueprint reading classes were counseled to

apply for other teaching positions within the school

system or, alternatively, to seek certification in other

subject areas so that they could teach different subjects

within the school system.

The plaintiff, who at all relevant times was older than

fifty, was employed as a blueprint reading teacher at

Eli Whitney Technical High School in Hamden (Eli Whit-

ney). Although he had not yet been directly affected by

the curriculum change, the plaintiff filed administrative

complaints in February, 2005, with the Commission on

Human Rights and Opportunities (commission) as well

as the United States Equal Employment Opportunity

Commission (EEOC), alleging age discrimination on the

basis of the school system’s decision to reduce the

number of blueprint reading courses. While the plain-

tiff’s administrative complaints were pending, Eli Whit-

ney decided to eliminate its blueprint reading class for

the 2005–2006 academic year.5 The plaintiff was thus

notified that the blueprint reading course he taught

would be eliminated, and that if he did not find an

alternative position for which he was qualified within

the school system, he would serve as a permanent sub-

stitute teacher. The plaintiff elected to accept a perma-

nent substitute position at Horace C. Wilcox Technical

High School in Meriden (Wilcox) beginning on August

25, 2005. On June 29, 2005, however, the plaintiff was

notified that Wilcox could no longer accommodate his

position and that he would, alternatively, be transferred

to W. F. Kaynor Technical High School in Waterbury

(Kaynor).

At some point after the plaintiff received notice of

his transfer to Kaynor, his union, the State Vocational

Federation of Teachers, filed a grievance on the basis of

the school system’s reassignment of blueprint reading

teachers to permanent substitute positions. In July,

2006, the school system and the union reached an

agreement providing for a recall of these permanent

substitute positions. The school system then offered

the plaintiff, and he accepted, a full-time position to

teach manufacturing technology at Kaynor, effective

August 25, 2006.6

During his tenure at Kaynor, the plaintiff was the

subject of numerous disciplinary actions. In response,

the plaintiff amended his administrative complaints to

include a claim for retaliation on the basis of these

disciplinary actions. On July 19, 2006, the commission

dismissed the complaint. The plaintiff, however,

received a release of jurisdiction from the commission7

as well as a right to sue letter from the EEOC, authoriz-

ing him to commence a separate civil action.

On May 24, 2007, the plaintiff filed a two count com-

plaint in the United States District Court for the District

of Connecticut, alleging that the school system had (1)

discriminated against him on the basis of his age in

violation of the ADEA and § 46a-60, and (2) retaliated

against him because he had filed administrative com-

plaints against the school system. After the school sys-

tem filed a motion for summary judgment, the court,

Underhill, J., first dismissed the plaintiff’s discrimina-

tion claims that were premised on the ADEA and § 46a-

60 without prejudice on the ground that they were

barred by sovereign immunity. The court then con-

cluded that there was no genuine issue of material fact

that would support the plaintiff’s claim that the school

system had retaliated against him and that, therefore,

the school system was entitled to summary judgment

on that claim.

The plaintiff filed the underlying complaint in Supe-

rior Court, dated June 19, 2009, in which he alleged

that the school system had (1) discriminated against

him on the basis of his age in violation of both § 46a-

60 and the ADEA, and (2) retaliated against him. In

support of his complaint, the plaintiff alleged that the

school system instituted its curriculum change in an

effort to eliminate older teachers, as blueprint reading

classes were taught predominantly by teachers older

than age forty. The plaintiff further alleged that the

school system then began a pattern of retaliation against

him as a result of his complaints with the commission

and the EEOC. Specifically, he claimed that the school

system monitored his classwork on a constant basis,

subjected him to numerous disciplinary actions, threat-

ened to terminate his employment, suspended him from

work without pay, required him to attend disciplinary

hearings, solicited students to make complaints against

him, and made false accusations of incompetence and

wrongdoing. The plaintiff asserted that the school sys-

tem’s actions constituted treatment different from that

experienced by other similarly situated teachers. The

plaintiff sought compensatory and punitive damages,

attorney’s fees, and an injunction requiring the school

system to cease all retaliatory actions against him.

On August 1, 2012, the school system filed a motion

for summary judgment, along with supporting docu-

ments, asserting that (1) the plaintiff’s claim under the

ADEA was barred by sovereign immunity, and (2) there

was no genuine issue of material fact that would support

the plaintiff’s claims that it had discriminated against

him regarding its curriculum decisions or that it had

retaliated against him because he had filed administra-

tive complaints against the school system. In response,

the plaintiff filed an objection to the motion but did

not attach any evidence in support of his claims or

that disputed any of the assertions made by the school

system in support of its motion. See Practice Book § 17-

45. In a memorandum of decision filed October 15,

2012, the court found that, although the plaintiff’s ADEA

claim was not barred by sovereign immunity, the evi-

dence submitted in conjunction with the school sys-

tem’s motion for summary judgment established that

there was no genuine issue of material fact that would

support the plaintiff’s claims that it had discriminated or

retaliated against him. Accordingly, the court rendered

summary judgment in favor of the school system on

both the state and federally based discrimination

claims, as well as the plaintiff’s retaliation claim. This

appeal followed.

On appeal, the plaintiff claims that the court improp-

erly concluded that there was no genuine issue of mate-

rial fact as to whether the school system had (1)

discriminated against him on the basis of his age in

violation of the ADEA and § 46a-60, and (2) retaliated

against him.8 In response, the school system argues

that, although the court correctly rendered summary

judgment in its favor on both counts, it improperly

concluded that the plaintiff’s ADEA claim was not

barred by sovereign immunity.

We begin by setting forth our standard of review and

the principles that guide our analysis for appeals from

the rendering of summary judgment. ‘‘Our review of

the trial court’s decision to grant the [defendant’s]

motion for summary judgment is plenary. . . . The law

governing summary judgment and the accompanying

standard of review are well settled. Practice Book § [17-

49] requires that 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. A material fact is a fact that will

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

facts at issue are those alleged in the pleadings. . . .

‘‘In seeking summary judgment, it is the movant who

has the burden of showing the nonexistence of any

issue of fact. . . . As the burden of proof is on the

movant, the evidence must be viewed in the light most

favorable to the opponent. . . .

‘‘The party opposing a motion for summary judgment

must present evidence that demonstrates the existence

of some disputed factual issue . . . . The movant has

the burden of showing the nonexistence of such issues

but the evidence thus presented, if otherwise sufficient,

is not rebutted by the bald statement that an issue of

fact does exist. . . . To oppose a motion for summary

judgment successfully, the nonmovant must recite spe-

cific facts . . . which contradict those stated in the

movant’s affidavits and documents.’’ (Citation omitted;

internal quotation marks omitted.) Walker v. Dept. of

Children & Families, 146 Conn. App. 863, 869–70, 80

A.3d 94 (2013), cert. denied, 311 Conn. 917, 85 A.3d 653

(2014). With these principles in mind, we turn now to

the plaintiff’s individual claims.

I

We first address the school system’s argument con-

cerning sovereign immunity because it implicates this

court’s subject matter jurisdiction. See Columbia Air

Services, Inc. v. Dept. of Transportation, 293 Conn.

342, 349, 977 A.2d 636 (2009). In its memorandum of

decision, the trial court correctly stated that General

Statutes § 46a-100 explicitly waives the state’s sover-

eign immunity for claims against the state for employ-

ment discrimination brought under § 46a-60. The court

additionally concluded, however, that the waiver of the

state’s sovereign immunity set forth in § 46a-100 also

extends to discrimination claims brought against the

state under the ADEA. On appeal, the school system

contends that the plaintiff’s claim brought under the

ADEA is barred by sovereign immunity on the basis of

its assertion that the state statutory scheme waiving

sovereign immunity for violations of the state age dis-

crimination statute, § 46a-100, does not extend to claims

based on the corresponding federal statute relating to

age discrimination. We agree with the school system.

‘‘Sovereign immunity . . . presents a question of law

over which we exercise de novo review. . . . In so

doing, we must decide whether [the trial court’s] con-

clusions are legally and logically correct and find sup-

port in the facts that appear in the record. . . . The

principle that the state cannot be sued without its con-

sent, or sovereign immunity, is well established under

our case law. . . . It has deep roots in this state and

our legal system in general, finding its origin in ancient

common law. . . . Not only have we recognized the

state’s immunity as an entity, but [w]e have also recog-

nized that because the state can act only through its

officers and agents, a suit against a state officer con-

cerning a matter in which the officer represents the

state is, in effect, against the state. . . . Exceptions to

this doctrine are few and narrowly construed under

our jurisprudence.’’ (Internal quotation marks omitted.)

Columbia Air Services, Inc. v. Dept. of Transportation,

supra, 293 Conn. 349. Our Supreme Court has held that

to bypass the doctrine of sovereign immunity, a plaintiff

must demonstrate that ‘‘(1) the legislature, either

expressly or by force of a necessary implication, statu-

torily waived the state’s sovereign immunity . . . or

(2) in an action for declaratory or injunctive relief, the

state officer or officers against whom such relief is

sought acted in excess of statutory authority, or pursu-

ant to an unconstitutional statute.’’ (Internal quotation

marks omitted.) Lyon v. Jones, 291 Conn. 384, 397, 968

A.2d 416 (2009).

In Kimel v. Florida Board of Regents, 528 U.S. 62,

120 S. Ct. 631, 145 L. Ed. 2d 522 (2000), the United

States Supreme Court specifically addressed the issue

of whether sovereign immunity bars an ADEA discrimi-

nation suit brought by a private individual against a

state. Id., 66–67. The court ultimately concluded that

‘‘the ADEA does not validly abrogate the States’ sover-

eign immunity,’’ and, accordingly, affirmed the dis-

missal of the plaintiff’s claims. Id., 92. In so holding,

the court opined: ‘‘Our decision today does not signal

the end of the line for employees who find themselves

subject to age discrimination at the hands of their state

employers. We hold only that, in the ADEA, Congress

did not validly abrogate the States’ sovereign immunity

to suits by private individuals. State employees are pro-

tected by state age discrimination statutes, and may

recover money damages from their state employers, in

almost every State of the Union. Those avenues of relief

remain available today, just as they were before this

decision.’’ Id., 91–92.

In the present case, the trial court correctly noted

that § 46a-100 operates to waive sovereign immunity

for claims brought against the state pursuant to § 46a-

60. See part II of this opinion. The court stated, however,

that it saw ‘‘no basis upon which to confine that holding

to discrimination claims identified as grounded only in

state statutes.’’ In so concluding, the court stated that

neither the eleventh amendment9 nor Kimel had any

bearing on the plaintiff’s ADEA claim because both

precluded only claims under the ADEA brought in fed-

eral court and not those brought in state court. We do

not so narrowly read Kimel.

Mindful of the basic tenets of sovereign immunity

and given the absence of any state statute abrogating

the protections of sovereign immunity for an ADEA

claim against the school system, we believe that the

school system is, in fact, immune from suit whether in

state or federal court, on the basis of an alleged violation

of the ADEA. Accordingly, we disagree with the court’s

conclusion that the plaintiff’s discrimination claim

under the ADEA was not barred by sovereign immunity.

Because our determination implicates the court’s juris-

diction over the school system, as an agent of the state,

regarding the ADEA claim, we must remand that portion

of the judgment to the trial court with direction to

render judgment dismissing the ADEA claim on the

basis of sovereign immunity.

II

We turn next to the plaintiff’s claims that the court

improperly rendered summary judgment in favor of the

school system on his remaining discrimination claim,

brought under § 46a-60, and on his retaliation claim.

We discuss each claim in turn.

A

The plaintiff first claims that the court incorrectly

rendered summary judgment in favor of the school sys-

tem on his discrimination claim under § 46a-6010

because the evidence before the court presented a genu-

ine issue of material fact. We are not persuaded.

The following additional facts are relevant to this

claim. In his complaint, the plaintiff asserted that the

school system had eliminated blueprint reading courses

in an effort to reduce the number of older teachers it

employed. In support of its motion for summary judg-

ment and to rebut the plaintiff’s contention, the school

system submitted school Superintendent Hughes’ affi-

davit, in which she stated in relevant part: ‘‘The [school

system] decided to implement the [curriculum] change

to better prepare students for the requirements of [the

No Child Left Behind Act]11 and make students more

skilled and competitive in their selected trade areas.

This curriculum change reflected the [school system’s]

decision that blueprint reading, which had always been

taught in part in each trade program, fit better into

the trade-specific classes as taught by trade specific

instructors rather than through generalized blueprint

reading classes. By eliminating the redundancy in [blue-

print reading] instruction, students would continue to

receive [blueprint reading] instruction and, at the same

time, gain access to enhanced math and language arts

classes.’’ (Footnote added.)

Hughes further attested: ‘‘The decision to consolidate

the blueprint reading program into existing programs

had nothing to do with the plaintiff’s age. In terms of

general statistics, the majority of the school system’s

instructors as a whole are [forty] years of age and

older—specifically 80.21% of the total number of

instructors, both male and female, and a specific per-

centage are over [fifty] years of age, approximately

51.23% . . . of the total number of instructors. . . .

The [school system] employed the plaintiff until August

of 2005 as a blueprint reading instructor without any

change to his status. After the [blueprint] course was

eliminated at Eli Whitney for the 2005–2006 school year,

the plaintiff was placed in a permanent substitute posi-

tion . . . without any change to his position status,

salary or benefits. The plaintiff was then offered an

instructing position . . . at W. F. Kaynor Technical

High School . . . and has served in that capacity since

that time. . . . The [school system] denies that age had

anything to do with its decision to revamp the technical

school system curriculum and states that the change

was made in the best interest of the [school system]

and its students.’’

In the plaintiff’s deposition, transcripts of which were

appended to the school system’s motion for summary

judgment, the plaintiff testified that, although he was

initially offered a permanent substitute position, he was

improperly overlooked for positions similar to his previ-

ous job as a blueprint reading teacher in favor of other,

younger teachers. Notwithstanding that general claim,

however, the plaintiff testified in his deposition that he

could not recall which positions he was qualified for

or the names of the other teachers who were similarly

situated but hired in his stead. The plaintiff conceded,

as well, that he was never demoted and that his pay

and benefits remained the same at all times.

As a prelude to our discussion of the court’s response

to the school system’s motion for summary judgment,

it is useful to briefly discuss the law as it relates to

discrimination claims, and, in particular, to the burden

shifting feature of discrimination claims. ‘‘[D]isparate

treatment simply refers to those cases where certain

individuals are treated differently than others. . . .

The principal inquiry of a disparate treatment case is

whether the plaintiff was subjected to different treat-

ment because of his or her protected status.’’ (Citation

omitted; internal quotation marks omitted.) Levy v.

Commission on Human Rights & Opportunities, 236

Conn. 96, 104, 671 A.2d 349 (1996). As our Supreme

Court has elucidated, ‘‘[w]hen a plaintiff claims dispa-

rate treatment under a facially neutral employment pol-

icy, this court employs the burden-shifting analysis set

out by the United States Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973). Under this analysis, the

employee must first make a prima facie case of discrimi-

nation. The employer may then rebut the prima facie

case by stating a legitimate, nondiscriminatory justifica-

tion for the employment decision in question. The

employee then must demonstrate that the reason prof-

fered by the employer is merely a pretext and that the

decision actually was motivated by illegal discrimina-

tory bias.’’ (Footnote omitted.) Craine v. Trinity Col-

lege, 259 Conn. 625, 636–37, 791 A.2d 518 (2002).

Following this procedural pathway, the trial court

determined that, through the affidavits, depositions and

other documentary evidence attached to the motion for

summary judgment, the school system had demon-

strated that its actions regarding the plaintiff were not

motivated by his age, but rather, were in furtherance

of legitimate pedagogical goals. The failure of the plain-

tiff to submit any documentary evidence or to present

any facts beyond mere allegations did not put into dis-

pute the school system’s recitation of the good faith

basis for its personnel decisions and actions that

affected the plaintiff.

We have reviewed thoroughly the complaint, the

school system’s motion for summary judgment and

appended exhibits, the plaintiff’s objection thereto and

the court’s memorandum of decision, and conclude,

on the basis of our review, that the court correctly

determined that the plaintiff failed to satisfy his burden

of demonstrating the existence of a genuine issue of

material fact regarding his employment status. The

plaintiff failed to produce any evidence to create a genu-

ine issue of material fact demonstrating that the school

system’s nondiscriminatory reason for eliminating the

blueprint reading class he taught, namely, to meet the

new legislative mandates, was not the true reason for

its employment decision.12 Evidence submitted by the

school system established, without contradiction by the

plaintiff, that the blueprint reading course was largely

eliminated on the basis of the curriculum change and

that the plaintiff’s transfer was not related to, or even

partially motivated by, his age. Indeed, the record evi-

dences that the school system assisted the plaintiff and

other blueprint reading teachers in finding similar

teaching positions once it made its curriculum determi-

nation regarding this course offering. As a result of the

school system’s efforts, the plaintiff did not lose his

position, his benefits or his salary, but was, instead,

relocated to another school with the available

resources.

The plaintiff’s deposition testimony, in which he

asserted a claim of disparate treatment, was conclusory

and unsupported by any evidence. In short, the plaintiff

failed to present any evidence to counter the facts

attested to in Hughes’ affidavit regarding the reasons

for terminating the blueprint reading classes. Accord-

ingly, we conclude that the court properly granted the

school system’s motion for summary judgment as to

the plaintiff’s discrimination claim.

B

We turn last to the plaintiff’s claim that the court

incorrectly determined that there was no genuine issue

of material fact concerning his retaliation claim.

The following additional facts are relevant to the

plaintiff’s final claim. When the school system submit-

ted its motion for summary judgment, it attached

numerous affidavits from officials within the school

system. One such affidavit was from Robert Axon, the

principal of Kaynor, to which the plaintiff had been

transferred after the curriculum change. In his affidavit,

Axon attested to the numerous disciplinary letters sent

to the plaintiff, the first of which was issued approxi-

mately twenty months after the plaintiff filed his com-

plaints with the commission and the EEOC. The first

letter was a ‘‘[l]etter of [c]ounseling’’ that concerned the

plaintiff’s ability to control students in the classroom as

well as his recurring tardiness to school. Axon attested,

as well, that the plaintiff had received numerous other

‘‘[l]etter[s] of [r]eprimand’’ that were based on, inter

alia, his lack of classroom supervision and absence from

his classroom, failure to submit lesson plans, and failure

to report a fire in the machine shop. As a result of his

behavior, the plaintiff received a one day suspension

in March, 2007. The plaintiff also received a three day

suspension in October, 2007, on the basis of his lack of

proper classroom supervision, inappropriate workplace

conduct, poor judgment and failure to follow direction

from the administration.

The plaintiff alleged in his complaint that these disci-

plinary measures were in retaliation for the complaints

he had filed with the commission and the EEOC. In his

affidavit, however, Axon attested: ‘‘I had no knowledge

that he had previously filed a complaint with the [com-

mission] in 2005 about the consolidation of the blueprint

reading program into the regular curriculum.’’ Although

the plaintiff insisted in his deposition that Axon’s state-

ment was not credible, he was unable to point to any

evidence that Axon or any other officials at Kaynor were

aware of the complaints he had filed. Also, although

the plaintiff asserted that he had suffered retaliatory

employment actions ‘‘constituting treatment different

from that imposed upon other teachers similarly situ-

ated to the plaintiff,’’ he was similarly unable to provide

the names of any such similarly situated teachers.

‘‘In order to establish a prima facie case of retaliation,

a plaintiff must show that: [1] he engaged in protected

participation or opposition under [the Connecticut Fair

Employment Practices Act, General Statutes § 46a-51

et seq.] . . . [2] that the employer was aware of this

activity, [3] that the employer took adverse action

against the plaintiff, and [4] that a causal connection

exists between the protected activity and the adverse

action, i.e., that a retaliatory motive played a part in

the adverse employment action.’’ (Emphasis omitted;

internal quotation marks omitted.) DeMoss v. Board of

Education, Docket No. 3:05-CV-00736 (DJS), 2014 WL

1875105, *13 (D. Conn. May 9, 2014).

On the basis of the evidence before the court, we

conclude that there is no genuine issue of material fact

as to whether the school system retaliated against the

plaintiff for having filed administrative claims asserting

discrimination by the school system. Indeed, as noted,

the plaintiff offered no counterevidence to show that

the officials at Kaynor knew of his complaints with the

commission and the EEOC at the time they disciplined

him for his perceived shortcomings. In sum, the plain-

tiff’s claims amounted to bare conclusory assertions

that the school system discriminated and retaliated

against him; such statements are insufficient to survive

a motion for summary judgment. See Chadha v. Char-

lotte Hungerford Hospital, 97 Conn. App. 527, 540, 906

A.2d 14 (2006) (no genuine issue of material fact where

plaintiff relied on ‘‘conclusory statements and personal

assessment of the motives of the defendants’’ in oppos-

ing summary judgment). The trial court properly ren-

dered summary judgment in favor of the school system.

The form of the judgment is improper; the judgment

is reversed only as to the ADEA claim and the case is

remanded with direction to dismiss that claim for lack

of subject matter jurisdiction. The judgment is affirmed

in all other respects.

In this opinion the other judges concurred.

1

General Statutes § 46a-60 is a provision of the Connecticut Fair Employ-

ment Practices Act. See General Statutes § 46a-51 et seq.

2

See 29 U.S.C. § 621 et seq.

3

At trial, the school system raised the issue of res judicata concerning

the retaliation claim. There, the school system claimed that because Judge

Stefan F. Underhill of the United States District Court for the District of

Connecticut had determined in the federal litigation between the parties

that the plaintiff had failed to raise a genuine issue of material fact in support

of the retaliation claim, he should have been foreclosed from again raising

the claim in state court. From our review of the record, it does not appear

that the trial court responded to the res judicata claim but, rather, rendered

summary judgment on the same basis as had Judge Underhill. On appeal,

the school system has not raised res judicata as an alternate ground for

affirmance. See Practice Book § 63-4 (a) (1). Therefore, we confine our

analysis to whether the court correctly rendered summary judgment on the

basis of its determination that the plaintiff had failed to establish the exis-

tence of any genuine issues of material fact.

4

See No Child Left Behind Act of 2001, Pub. L. No. 107–110, 115 Stat.

1425, codified as amended at 20 U.S.C. § 6301 et seq. (2006 & Sup. III 2009).

5

The record reflects that the plaintiff’s original administrative complaint

pleaded discrimination on the basis of the school system’s decision to elimi-

nate or to reduce blueprint reading courses across all schools. After the

blueprint reading class at Eli Whitney was eliminated, the plaintiff amended

his complaint with the commission and the EEOC on August 29, 2005, to

specifically plead the elimination of the blueprint reading course he had

taught there.

6

As of February 10, 2009, the plaintiff was still employed as a manufactur-

ing technology teacher at Kaynor although he was then on a medical leave

of absence. The plaintiff testified at his deposition, dated October 30, 2008,

that he was ‘‘pending retirement.’’

7

Since the enactment of Public Acts, 1991, No. 91-331, codified at General

Statutes § 46a-101, that statute has allowed a complainant to seek a release

from the commission that permits the complainant to proceed directly in

Superior Court.

8

The plaintiff also claims that the court erred in considering the affidavits

provided by the school system in support of its motion for summary judgment

without any additional evidence to support the affiants’ statements. The

plaintiff’s argument is without merit. See Practice Book § 17-45 (‘‘[a] motion

for summary judgment shall be supported by such documents as may be

appropriate, including but not limited to affidavits, certified transcripts of

testimony under oath, disclosures, written admissions and the like’’).

9

The eleventh amendment to the United States constitution provides:

‘‘The Judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any

Foreign State.’’

10

General Statutes § 46a-60 provides in relevant part: ‘‘(a) It shall be a

discriminatory practice in violation of this section: ‘‘(1) For an employer,

by the employer or the employer’s agent, except in the case of a bona fide

occupational qualification or need, to refuse to hire or employ or to bar or

to discharge from employment any individual or to discriminate against

such 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,

present or past history of mental disability, intellectual disability, learning

disability or physical disability, including, but not limited to, blindness

. . . .’’

We note that § 46a-60 (a) (1) has been amended since 2005, when the

plaintiff first filed his complaint of discrimination with the commission. See

Public Acts, 2011, No. 11-55, § 24; Public Acts, 2011, No. 11-129, § 20. Because

those amendments are not relevant to the claims raised by the plaintiff, we

refer in this opinion to the current revision of § 46a-60 (a) (1).

11

See No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat.

1425, codified as amended at 20 U.S.C. § 6301 et seq. (2006 & Sup. III 2009).

12

In support of his discrimination claim, the plaintiff in his complaint

quoted a New Britain Herald article, published April 4, 2007, in which a

school system representative stated that the school system’s actions were

to ‘‘tighten up because of federal cuts. We’re letting some of our older

teachers phase out. We’re under pressure to make the bottom line balanced

while bringing our system into the 21st Century.’’ This statement is hearsay

and is therefore inadmissible. See Conn. Code Evid. § 8-2; see also Walker

v. Housing Authority, 148 Conn. App. 591, 600, 85 A.3d 1230 (2014) (‘‘[h]ear-

say is generally inadmissible . . . and therefore when deciding a motion

for summary judgment a court may not consider material that would be

hearsay at trial’’ [citation omitted]). Accordingly, the court properly disre-

garded this reference in concluding that the school system was entitled to

summary judgment.