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Long v. Putnam
CASSIE LONG v. TOWN OF PUTNAM
(AC 46461)
Alvord, Cradle and Suarez, Js.*
Syllabus
The plaintiff appealed from the trial court’s judgment granting the defendant
town’s motion for summary judgment on her complaint alleging, inter alia,
pregnancy discrimination. She claimed that the court erred in its determination that there were no genuine issues of material fact as to her claims. Held:
The trial court improperly rendered summary judgment for the defendant
on the plaintiff’s claim of pregnancy discrimination, as the plaintiff presented
sufficient evidence in opposition to the defendant’s motion for summary
judgment to create a genuine issue of material fact as to whether she suffered
adverse employment actions when the defendant failed to reinstate her to
her original job or an equivalent one and when it failed to promote her
following her return from maternity leave, and a rational fact finder could
conclude, on the basis of the evidence presented, including the timing and
sequence of the alleged adverse employment actions, that the plaintiff presented evidence sufficient to establish a prima facie case of pregnancy
discrimination and that the defendant’s stated reasons for its actions were
a pretext for its unlawful discrimination; accordingly, this court remanded
the case for further proceedings on that claim.
This court declined to review the plaintiff’s claim that the trial court erred
in determining that there were no genuine issues of material fact that she
was subjected to gender discrimination and in granting the defendant’s
motion for summary judgment with respect to that claim, as the claim was
inadequately briefed.
Argued October 15, 2024—officially released November 11, 2025
Procedural History
Action to recover damages for, inter alia, alleged pregnancy discrimination, and for other relief, brought to
the Superior Court in the judicial district of Windham,
where the court, Lohr, J., granted the defendant’s
motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court.
Reversed in part; further proceedings.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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Long v. Putnam
James V. Sabatini, for the appellant (plaintiff).
Proloy K. Das, with whom, on the brief, was Johanna
G. Zelman, for the appellee (defendant).
Opinion
SUAREZ, J. The plaintiff, Cassie Long, appeals from
the summary judgment rendered by the trial court in
favor of the defendant, the town of Putnam, on her
complaint sounding in pregnancy and gender discrimination in violation of the Connecticut Fair Employment
Practices Act (act), General Statutes § 46a-51 et seq.
On appeal, the plaintiff claims that the court incorrectly
determined that there were no genuine issues of material fact as to each of her claims. Because we agree
that there are genuine issues of material fact as to the
plaintiff’s claim of pregnancy discrimination, we reverse
the judgment of the court as to that claim. We decline
to reach the merits of the plaintiff’s claim that the court
improperly rendered summary judgment on her gender
discrimination claim as the claim was inadequately
briefed. Accordingly, we affirm the judgment of the
court with respect to her gender discrimination claim.
The record reveals the following facts, which we view
in the light most favorable to the plaintiff, who was the
nonmoving party on the motion for summary judgment;
see, e.g., Cole v. New Haven, 337 Conn. 326, 329,
253
A.3d 476 (2020); and procedural history. The defendant
is a Connecticut municipality and an employer within
the meaning of the act. Connecticut municipalities are
required to conduct an annual audit by an independent
auditor. General Statutes § 7-392. Each municipality is
required to designate and file the name of its auditor
with the Office of Policy and Management (OPM) thirty
days before the end of its fiscal year. General Statutes
§ 7-396. The independent auditor is then required to file
an audit report with OPM ‘‘within six months from the
end of the fiscal year . . . .’’ General Statutes § 7-393.
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Long v. Putnam
OPM may grant an extension to file the annual audit
of no more than thirty days. General Statutes § 7-393.
The defendant’s fiscal year ends on the last day in June
of each calendar year. The finance director is the defendant’s employee responsible for the submission of the
annual audits.
The defendant has a history of late audit submissions.1 It also has a history of turnover in the finance
director position. During the five years prior to the
plaintiff’s employment with the defendant, there were
three different finance directors. In May, 2019, the
defendant’s finance director abruptly resigned. Thereafter, the defendant entered into a professional service
agreement with the town of Killingly. Under the agreement, the town of Killingly would provide the defendant
with financial consulting and assistance with its financial management, including the reconciliation of funds,
preparation of records for the annual audit, evaluation
of policies, and the implementation of policies and audit
recommendations.
Given the history of high turnovers in its finance
director position, the defendant decided in 2019 to hire
an assistant finance director with the hope of promoting
that person to finance director. The role of assistant
finance director was a full-time position with a salary
of $70,000. That person would become eligible for promotion to the position of finance director once he or
she could demonstrate sufficient expertise to run the
finance department (department) by submitting a couple of ‘‘clean audits.’’ Norman Seney, the defendant’s
mayor, Jennifer Hawkins, the Killingly finance director,
and Amanda Brown, the finance director for the town of
Coventry, interviewed three candidates for the assistant
The 2014 audit was not submitted to OPM until the end of February,
1
2015, the 2015 audit was not submitted until mid-March, 2016, the 2016
audit was not submitted until mid-March, 2017, and the 2017 audit was not
submitted until the end of January, 2018.
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Long v. Putnam
finance director position. Seney invited Hawkins and
Brown to assist in the interview process because they
both held positions as finance directors. The plaintiff
and Maureen Benway interviewed for the position.
Seney wanted to hire Benway. Hawkins and Brown,
however, recommended the plaintiff because she had
more supervisory experience and a greater knowledge
of the defendant’s accounting software. On June 6, 2019,
Seney offered the position of assistant finance director
to the plaintiff on behalf of the defendant. After the
plaintiff accepted the position but before she commenced work, the plaintiff learned that she was pregnant. On July 1, 2019, her first day of work, the plaintiff
informed the defendant of her pregnancy.
At the time the plaintiff was hired, Seney knew that
the department was a ‘‘mess.’’ The plaintiff was aware
of the department’s problems and assured Seney that
she could handle the job. As part of her duties as assistant finance director, the plaintiff was required to work
with the auditors to complete the annual audit. She also
was required to oversee the day-to-day operations of
the department, which included supervising three staff
members. In addition to her responsibilities as assistant
finance director, the plaintiff oversaw the finances of
the defendant’s Water Pollution Control Authority
(WPCA).2
When the plaintiff started as assistant finance director, the defendant had not yet hired an independent
auditor for the 2019 fiscal year. At the recommendation
of the plaintiff, the defendant retained a private consulting firm (auditors) to conduct its annual audit. When
2
General Statutes § 22a-458, which governs the establishment of municipal
water pollution control authorities, provides in relevant part that ‘‘the legislative body of any municipality ordered by the Commissioner of Energy and
Environmental Protection . . . to abate or control water pollution shall
establish a water pollution control authority and authorize the necessary
funds to undertake and complete any action necessary to comply with such
order.’’ The WPCA is a separate entity within the defendant.
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Long v. Putnam
the defendant retained the auditors, it was aware that
the auditors would not be able to come on site until
January, 2020, to complete the audit because of their
late engagement. The defendant knew that the auditors
would not be able to complete the audit until after
January, 2020. Seney told the plaintiff to have ready as
much of the audit as she could for the independent
auditors prior to her maternity leave.
On February 12, 2020, the plaintiff commenced her
maternity leave. In March, 2020, while the plaintiff was
on maternity leave, the defendant hired Benway as
finance director to address the issues the defendant
had with its audit. After the plaintiff returned from
maternity leave in May, 2020, Benway was doing the
work the plaintiff was doing previously, and Seney told
the plaintiff that she needed to do anything Benway
instructed her to do. Although the plaintiff’s job title
did not change, she was now performing the duties of
an accounts receivable clerk. She was also reclassified
as an hourly employee with a reduced work schedule,
earning $15,000 less than before her maternity leave.
The plaintiff felt as if she was being treated differently.
Her work atmosphere became uncomfortable, and,
despite asking multiple times, she was not given an
explanation as to why the changes were made.
According to the plaintiff, she was told on two occasions that, if she did not like the changes that were
being made, she was ‘‘more than welcome to find a new
job.’’ On July 29, 2020, the plaintiff filed a complaint with
the Commission on Human Rights and Opportunities
(CHRO).
According to the plaintiff, there were never any concerns raised about her job performance until after she
returned from maternity leave. Specifically, on November 2, 2020, the defendant issued a counseling memorandum3 to the plaintiff, after the plaintiff filed the CHRO
3
Benway testified that the counseling memorandum is a document that
was intended to ‘‘help point out where [the plaintiff] went wrong, where
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Long v. Putnam
complaint, in which the defendant noted various concerns with the plaintiff’s job performance. The memorandum stated, inter alia, that the plaintiff had ‘‘fail[ed]
to properly deposit funds into the correct accounts and
properly account for the deposits . . . .’’ On November
17, 2020, the plaintiff resigned from her position as
assistant finance director. After the plaintiff resigned,
the assistant finance director position remained vacant
and was ultimately eliminated; the defendant then
posted the plaintiff’s former position as an accounts
receivable clerk.
In June, 2021, the plaintiff commenced the present
action in a two count complaint. The plaintiff asserted
one count of pregnancy discrimination and one count
of gender discrimination in violation of the act. With
respect to her pregnancy discrimination claim, the
plaintiff alleged that the defendant failed to reinstate
her to the job she had prior to her maternity leave or
to an equivalent position with equivalent pay, and that
she was denied a promotion because of her pregnancy.
With respect to her gender discrimination claim, the
plaintiff alleged, inter alia, that the defendant discriminated against her for being a woman with a newborn
and that the defendant denied her a promotion because
of her gender. On August 4, 2021, the defendant filed an
answer and special defenses to the plaintiff’s complaint.
On September 15, 2022, the defendant filed a motion
for summary judgment on both counts of the complaint,
accompanied by a memorandum of law. Attached to
its memorandum of law were various documents and
deposition excerpts. In its motion for summary judgment, the defendant asserted that there were no disputed material facts and that it was entitled to judgment
as a matter of law because the plaintiff could not establish a prima facie case of discrimination to support
the errors were, and to help her move forward to not keep doing the same
errors, to learn from the mistakes.’’
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Long v. Putnam
either of her claims. Specifically, the defendant asserted
that there was no genuine issue of material fact that
the plaintiff was not qualified to be promoted to finance
director and that the plaintiff did not suffer an adverse
employment action because ‘‘(1) she did not apply for
a promotion, (2) she was not demoted, and (3) [the]
assignment of accounts receivable duties was not a
material adverse change in her job responsibilities.’’ It
further asserted that ‘‘[t]here is no inference of discriminatory intent because: (1) . . . Benway was hired as
the finance director of WPCA, not the town, and she
is also female; (2) the work hours of everyone in the
finance department were reduced at the same time as
the plaintiff, and the decision was made to cut hours
by . . . Seney, who also hired the plaintiff . . . and
(3) . . . Benway, who is also female, assigned work to
the plaintiff.’’ Additionally, the defendant asserted that,
assuming the plaintiff can establish a prima facie case
of discrimination, it articulated a legitimate, nondiscriminatory reason for its actions and the plaintiff could
not prove that its reasons are pretextual. The plaintiff
objected to the defendant’s motion, contending that
there were genuine issues of material fact. Attached to
her memorandum of law in opposition to the defendant’s motion for summary judgment were various documents and deposition excerpts from the plaintiff,
Seney, and Benway.
Immediately following an April 24, 2023 hearing, the
court, Lohr, J., issued an oral decision in which it
granted the defendant’s motion for summary judgment
on both counts of the plaintiff’s complaint.4 The court
4
Practice Book § 6-1 (a) provides in relevant part that ‘‘[t]he judicial
authority shall state its decision either orally or in writing’’ when ‘‘making
any . . . rulings that constitute a final judgment for purposes of appeal
under General Statutes § 52-263, including those that do not terminate the
proceedings. The judicial authority’s decision shall encompass its conclusion
as to each claim of law raised by the parties and the factual basis therefor.
If oral, the decision shall be recorded by an official court reporter or court
recording monitor and, if there is an appeal, the trial judge shall create a
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Long v. Putnam
noted that, ‘‘[w]ith regard to the . . . framework
[under McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802,
93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973) (McDonnell
Douglas)], number one, and this is the same for both
counts, the plaintiff must belong to a protected class.
The court finds that she does . . . . In the case of
pregnancy, she was pregnant, and in the case of gender,
she is a woman. . . . Number two is that she meets
the minimum qualifications for the job at issue. . . .
She does meet the minimum qualifications for the job.
. . . Number three, she must suffer an adverse employment action. There are two adverse employment actions
that are indicated here . . . the so-called failure to
reinstate and the so-called failure to promote. . . .
[W]ith regard to prong three on the pregnancy discrimination claim, the failure to reinstate, and the failure to
promote, the court finds that neither of those have
been met on the prima facie case. That alone would be
sufficient for the prima facie case to fail. But there is
a fourth prong to the prima facie case and the burden
shifting framework, and that there must be a basis from
which to draw an inference of discriminatory intent,
and the court does not find that there is such a basis
to draw a discriminatory intent in this case. And, so,
the plaintiff fails on the prima facie burden, but even
assuming for the sake of argument that the plaintiff had
been able to make out a prima facie case, [the] court
further finds that the employer has put forth a reasonable response as to the actions it took . . . . With
regard to the gender discrimination [claim] . . . the
plaintiff has pled . . . what the plaintiff referred to as
memorandum of decision for use in the appeal by ordering a transcript of the
portion of the proceeding in which it stated its oral decision. The transcript
of the decision shall be signed by the trial judge and filed in the trial court
clerk’s office. . . .’’
In the present case, the court ordered a transcript of its oral decision and
signed the transcript. In this case, however, it may have been a better
practice to issue a written decision.
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Long v. Putnam
a gender plus claim . . . . She must meet the minimum
qualifications for the job at issue. The plaintiff, of
course, did meet the minimum qualifications for her
job . . . . She must suffer an adverse employment
action. Again, we run into the same issue. . . . [T]here’s
insufficient [evidence] in the record to show . . . that
the plaintiff suffered either of the two adverse employment actions that are stated here. . . . So, as to the
gender discrimination claim, prong three, the adverse
employment action, the court finds that there’s insufficient evidence to show that the plaintiff suffered an
adverse employment action here, but even assuming
for the sake of argument that she did, four, the fourth
prong of the prima facie case is that there must be a
basis to draw an inference of discriminatory intent. And
as I stated previously, I don’t see the nexus. I don’t see
a basis for the drawing of an inference of discrimination
on the basis of either gender or gender plus, meaning,
as [the plaintiff’s counsel] put it, ‘gender plus an infant.’
. . . The court notes that either sex or any gender can
have an infant at home. There’s just no connection that’s
here. But also, assuming for the sake of argument that
the plaintiff was able to make out a prima facie case,
all that would do is shift the burden to the defendant
to put forth a nondiscriminatory basis for its actions.
As previously stated, it has. . . . And so, the burden
shifts back to the plaintiff, and the overall burden is
not met on the plaintiff’s part to show both pretexts,
you know, both that the responses are untrue and that
they are a pretext for discrimination. . . . And, based
on this record, the court finds that here is insufficient
basis to prove either. And, so, for . . . all of those
reasons . . . the defendant’s motion for summary
judgment is granted, and the [plaintiff’s] objection to
the motion for summary judgment is overruled.’’ This
appeal followed. Additional facts and procedural history will be set forth as necessary.
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Long v. Putnam
We begin by setting forth the applicable standard of
review and the following legal principles. ‘‘The standards governing our review of a court’s decision to
grant a defendant’s motion for summary judgment are
well settled. 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. . . . 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 [it] to a judgment as a matter of law . . . and
[only on such a showing] the party opposing such a
motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material
fact. . . . .
‘‘[I]ssue-finding, rather than issue-determination, is
the key to the procedure. . . . [T]he trial court does
not sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s conclusions were legally and logically correct and find support in the record.’’ (Internal quotation marks omitted.)
Eldridge v. Hospital of Central Connecticut, 230 Conn.
App. 666, 670,
330 A.3d 604 (2025).
Under the act, employers may not discriminate
against certain protected classes of individuals. See,
e.g., Desrosiers v. Diageo North America, Inc., 314
Conn. 773, 775,
105 A.3d 103 (2014). General Statutes
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Long v. Putnam
§ 46a-60 (b) provides in relevant part: ‘‘It shall be a
5
discriminatory practice . . . (1) [f]or an employer . . .
to discharge from employment any individual or to discriminate against any individual in compensation or in
terms, conditions or privileges of employment because
of the individual’s . . . sex . . . [and] (7) [f]or an
employer . . . [t]o terminate a woman’s employment
because of her pregnancy . . . to fail or refuse to reinstate the employee to her original job or to an equivalent
position with equivalent pay and accumulated seniority,
retirement, fringe benefits and other service credits
upon her signifying her intent to return . . . to limit,
segregate or classify the employee in a way that would
deprive her of employment opportunities due to her
pregnancy . . . [and] to discriminate against an
employee or person seeking employment on the basis
of her pregnancy in the terms or conditions of her
employment . . . .’’ Connecticut courts ‘‘review federal precedent concerning employment discrimination
for guidance in enforcing our own antidiscrimination
statutes.’’ Curry v. Allan S. Goodman, Inc., 286 Conn.
390, 415,
944 A.2d 925 (2008); see also Commission on
Human Rights & Opportunities v. Echo Hose Ambulance, 156 Conn. App. 239, 249–50,
113 A.3d 463 (2015),
aff’d, 322 Conn. 154,
140 A.3d 190 (2016).
‘‘In order to establish a prima facie case of employment discrimination based on adverse employment
action under the burden shifting analysis enumerated
by the United States Supreme Court in McDonnell Douglas . . . and adopted by [our Supreme Court] in Ford
v. Blue Cross & Blue Shield of Connecticut, Inc., 216
Conn. 40, 53–54,
578 A.2d 1054 (1990) . . . the complainant must prove that: (1) [s]he [was] in the protected
5
Section 46a-60 has been amended since the commencement of this action.
See, e.g., Public Acts 2021, No. 21-69, § 1. Those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
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Long v. Putnam
class; (2) [s]he was qualified for the position; (3) [s]he
suffered an adverse employment action; and (4) . . .
the adverse action occurred under circumstances giving
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.)
Eldridge v. Hospital of Central Connecticut, supra, 230
Conn. App. 671–72.
‘‘The establishment of a prima facie case create[s] a
rebuttable presumption of discriminatory intent. . . .
The burden of establishing a prima facie case is a burden
of production, not a burden of proof, and therefore
involves no credibility assessment by the fact finder.
. . . The level of proof required to establish a prima
facie case is minimal and need not reach the level
required to support a jury verdict in the plaintiff’s
favor.’’ (Citations omitted.) Craine v. Trinity College,
259 Conn. 625, 638,
791 A.2d 518, (2002).
Before addressing the claim raised on appeal, we
note that, in her appellate brief, the plaintiff argues that
the McDonnell Douglas burden shifting analysis does
not apply to her claim alleging an unlawful failure to
reinstate her to her original job or to an equivalent
position. She argues that the ‘‘defendant makes no argument that the denial [to reinstate her to her previous
job or to an equivalent one] was due to a change in
circumstances rendering reinstatement to her original
position or equivalent position impossible or unreasonable.’’ According to the plaintiff, ‘‘[t]his is the only available defense under § 46a-60 (b) (7) (B).’’ She further
argues that ‘‘[p]retext is not relevant when there can
be no legitimate factual dispute that [she] was denied
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Long v. Putnam
her statutory right to reinstatement to her original job
or equivalent position upon return from maternity
leave.’’ The plaintiff, therefore, asserts that the only
issue before the court was a legal one, that is, ‘‘whether
the denial of reinstatement to her original job or equivalent position was lawful or not under § 46a-60 (b) (7)
(B).’’
In support of her argument, the plaintiff relies on
Gaither v. Stop & Shop Supermarkets Co., LLC, 84 F.
Supp. 3d 113 (D. Conn. 2015). In Gaither, the plaintiff,
who was pregnant, began to suffer from extreme back
pain and her doctor restricted her from lifting objects
weighing more than fifteen pounds. Id., 115. The defendant, nevertheless, would assign the plaintiff, on an
almost daily basis, to tasks that required her to exceed
her lifting restrictions. Id., 122. In the final month of
her pregnancy, the plaintiff’s pain became more severe,
and she had to call out sick for several days. Id., 115.
The plaintiff provided the defendant’s manager with a
doctor’s note, to which the defendant’s manager
responded, ‘‘I don’t care what you’re going through,
what type of pain, we have a business to run, and you
have a job to do.’’ (Internal quotation marks omitted.)
Id. The plaintiff’s employment was then terminated, and
she was told that she was welcome to return to work,
but she would have to reapply for her position and
there was no guarantee that she would be rehired. Id.,
115–16. After giving birth, the plaintiff did not reapply
for a position with the defendant, as she did not feel
that she was welcome to return. Id., 116.
The court in Gaither noted that the McDonnell Douglas framework does not apply when a plaintiff is able
to produce direct evidence of discrimination. Id. The
court further noted that ‘‘there [was] no factual dispute
that [the] [p]laintiff was terminated because of her
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Long v. Putnam
[pregnancy related] medical restrictions and the primary question is a legal one: whether this termination
was prohibited under [the act].’’ Id., 116–17.
In the present case, however, the plaintiff returned
to work after her maternity leave, and the issue of
whether the plaintiff was reinstated to her original job
or to an equivalent position is vigorously disputed. But,
even assuming that there is no factual dispute that the
plaintiff was not reinstated to her original job or to an
equivalent position, the question remains whether that
adverse employment action occurred under circumstances giving rise to an inference of discrimination.
The McDonnell Douglas ‘‘methodology is intended to
provide guidance to fact finders who are faced with
the difficult task of determining intent in complicated
discrimination cases.’’ Craine v. Trinity College, supra,259 Conn. 637. Under these circumstances, therefore,
the court properly employed the McDonnell Douglas
methodology. Accordingly, we review the court’s judgment under the McDonnell Douglas framework.
I
On appeal, the plaintiff first claims that the court
improperly rendered summary judgment on her pregnancy discrimination claim because there are genuine
issues of material fact as to whether the defendant
discriminated against her by failing to promote her to
the position of finance director and by failing to reinstate her to the job she had prior to her maternity
leave or to an equivalent position with equivalent pay.6
6
The plaintiff’s brief is not a model of clarity. We note that, in the introduction to her brief, the plaintiff characterizes her claims as follows: ‘‘The trial
court erred in granting the defendant’s motion for summary judgment for
three principal reasons. One, the trial court decided the facts as opposed
to finding the existence of genuine issues of material fact. Two, the trial
court ignored the statutory language of . . . § 46a-60 (b) (7) . . . . Three,
the trial court improperly relied upon the same actor inference.’’ We have
reframed the claims in this appeal to more accurately reflect the arguments
set forth in the body of her brief. See, e.g., Doe v. Quinnipiac University,
218 Conn. App. 170, 173 n.4,
291 A.3d 153 (2023).
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Long v. Putnam
Specifically, the plaintiff argues that she provided evidence sufficient to establish that a genuine issue of
material fact existed as to whether she had proven a
prima facie case of employment discrimination on the
basis of her pregnancy and that the defendant’s stated
reasons for its actions were pretextual. We agree.
In the present case, it is undisputed that the plaintiff
is a member of a protected class and that she is qualified
for the position of assistant finance director. Accordingly, only the third and fourth prongs of the prima facie
case for an employment discrimination claim based on
pregnancy are at issue in this appeal, that is, whether
the plaintiff submitted evidence sufficient to establish
that she suffered an adverse employment action and
whether that action occurred under circumstances giving rise to an inference of discrimination.
A
Employing the McDonnell Douglas framework, we
first consider whether the plaintiff made out a prima
facie case of pregnancy discrimination. In her complaint, the plaintiff alleged that she suffered an adverse
employment action when the defendant failed to reinstate her to her original position or to an equivalent
one after she returned from maternity leave and when
the defendant failed to promote her to the position of
finance director. On appeal, the plaintiff claims that,
although her official job title did not change, she did
not, in practice, return to the role of assistant finance
director and, instead, she effectively was demoted to
the role of an accounts receivable clerk. She further
argues that she was improperly denied a promotion to
the position of finance director as a result of pregnancy
discrimination. The defendant counters that the plaintiff did not suffer an adverse employment action
because she returned after her maternity leave to the
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same position at the same rate of pay7 and that the
plaintiff was not qualified for the promotion to the position of finance director that she claims she was denied.
‘‘A plaintiff sustains an adverse employment action
if . . . she endures a materially adverse change in the
terms and conditions of employment. . . . To be materially adverse a change in working conditions must be
more disruptive than a mere inconvenience or an alteration of job responsibilities. . . . [A]n adverse employment action [has been defined] as a significant change
in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change
in benefits.’’ (Internal quotation marks omitted.) Heyward v. Judicial Dept., 178 Conn. App. 757, 767–68,
176
A.3d 1234 (2017); see also, e.g., Shultz v. Congregation
Shearith Israel, 867 F.3d 298, 304 (2d Cir. 2017) (‘‘[a]
materially adverse change might be indicated by a 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’’ (internal quotation marks omitted)). ‘‘[W]hether an undesirable employment action
qualifies as being ‘adverse’ is a heavily fact-specific,
contextual determination.’’ Hoyt v. Andreucci, 433 F.3d
320, 328 (2d Cir. 2006).
For a discrimination claim to be premised on a failure
to promote, a plaintiff is generally required ‘‘to allege
7
In its memorandum in support of its motion for summary judgment, the
defendant asserts that the plaintiff admitted in her deposition testimony to
having the same job title and the same rate of pay upon her return from
maternity leave. In her appellate brief, the plaintiff maintains that this purported admission was ‘‘simply false.’’ We agree. The record reflects that the
plaintiff testified that, when she returned from maternity leave, she had the
same title, but her role had effectively changed, and that she was notified
that her work hours were to be reduced effective July 1, 2020.
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that she or he applied for a specific position or positions
and was rejected therefrom . . . .’’ Brown v. Coach
Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). The plaintiff is not required to apply for a position, however, if
‘‘(1) the vacancy at issue was not posted, and (2) the
employee either had (a) no knowledge of the vacancy
before it was filled or (b) attempted to apply for it
through informal procedures endorsed by the
employer.’’ (Internal quotation marks omitted.) Dawson
v. New York City Transit Authority, 624 Fed. Appx.
763, 769–70 (2d Cir. 2015).
In the present case, as to her failure to reinstate
argument, the plaintiff alleged in her complaint that,
‘‘[s]ince returning from maternity leave, the defendant
had demoted [her] to the position of accounts receivable clerk, and cut eight hours of her work week
resulting in a $15,000 per year decrease in pay.’’ In
her opposition to the defendant’s motion for summary
judgment, the plaintiff submitted an affidavit in which
she averred that, ‘‘[s]ince returning from maternity
leave, the defendant demoted me to the position of
accounts receivable clerk, and cut eight hours of my
work week resulting in a $15,000 per year decrease
in pay.’’ The plaintiff also submitted portions of her
deposition transcript in which she testified that, when
she returned to work in May, 2020, she was informed
that her work schedule would be reduced by eight hours
per week and her rate of pay would be calculated on
an hourly basis. She further testified that, before she
left on maternity leave, ‘‘I was doing [the] audit, I was
doing the budget, I was doing time cards.’’ According
to the plaintiff, she was doing ‘‘[e]ssentially, everything
[Benway] was doing . . . .’’ She testified that ‘‘I was
in all our department head meetings, I provided the
department report, I was a salaried employee where I
didn’t have to punch in. When I returned, I was given
a badge that had a bar code on it, and I then had to
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punch in.’’ Additionally, the plaintiff testified that, when
she came back, she ‘‘was doing what [Benway] was
giving me to do.’’ She further testified that, upon her
return from maternity leave, she did not have access
to the defendant’s bank accounts and that she was no
longer privy to certain information. She was no longer
‘‘invited in for the bond dates for municipal complex,
[she] wasn’t allowed to talk to the auditors, unless [she]
was asked to talk to the auditors. [She] wasn’t allowed
to be in on the budget.’’ We conclude that this evidence
was sufficient to create a genuine issue of material
fact that the plaintiff was not reinstated to her original
position.
With respect to her failure to promote assertion, the
plaintiff alleged that she suffered an adverse employment action because she was denied a promotion on
the basis of her pregnancy. Specifically, she alleged
that, ‘‘[w]ithin about eight . . . days after starting her
maternity leave, the defendant hired someone else [Benway] for the finance director/treasurer position.’’ In its
motion for summary judgment, the defendant asserted
that the plaintiff did not apply for a promotion to the
position of finance director and that she was not qualified for the position. The defendant also argued that
any promotion discussed with the plaintiff was ‘‘contingent on her successfully completing the audit and performing well otherwise, which she did not do.’’
The plaintiff submitted in her opposition to the defendant’s motion for summary judgment portions of her
deposition transcript in which she testified that she
was told during her interview that the assistant finance
director position was ‘‘temporary’’ and that she was
‘‘going to be transferred into the finance director [position].’’ The plaintiff further testified that she was never
told the audit needed to be completed in its entirety.
Rather, she stated that she was told to ‘‘get as much
of the audit done as possible,’’ and, in her affidavit she
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averred that the defendant was aware that the audit
was likely not going to be completed on time due to
the late hiring of the plaintiff and the defendant’s late
retaining of the auditors. Moreover, she testified that
she would periodically meet with Seney and that she
would attend ‘‘department head meetings once a month,
and he would constantly praise how great I was doing,
how well the year is turning around, how much progress
we’re making.’’ According to the plaintiff, there were
never any concerns raised about her job performance.
It was not until November 2, 2020, that the defendant
issued a counseling memorandum to the plaintiff. The
counseling memorandum was issued at the direction
of the defendant’s administrator after the plaintiff filed
a complaint with the CHRO.
In her affidavit in opposition to the defendant’s
motion for summary judgment, the plaintiff averred that
Seney told her that she ‘‘would be promoted to finance
director/treasurer after one . . . year of employment.’’
She further averred that Seney publicly commented at
the time of her hiring that, ‘‘[w]ith the help of the Killingly treasurer . . . [who] is bringing her up to speed
in regards to our programs and everything else and we
hope that within the next six months to a year we can
[p]ut her into the position of finance director once she
obtains all the training.’’ (Internal quotation marks omitted.) Additionally, she averred that, on or about December 10, 2019, she participated in a meeting with Seney
. . . and Hawkins, during which ‘‘[i]t was agreed by all
attending [the] meeting including Seney that due [to
the plaintiff] starting the job after the fiscal year ended
and the state of the [defendant’s] books (poor) that
[she] was not to be held responsible for the outcome
of the audit.’’ She further averred that Seney told her
that the defendant could not have left the department
understaffed for three months, that he looked for a
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consultant but could not find any and that he did what
was best for the defendant.
The plaintiff also submitted portions of Seney’s deposition transcript in her opposition to the defendant’s
motion for summary judgment. In his deposition, Seney
testified that the employee in the assistant finance director position was eligible for promotion to the finance
director position. According to Seney, an assistant
finance director would become eligible for the finance
director position if they submitted clean audits. Seney
testified that, ‘‘basically, that was the key, to get a couple
clean audits going forward that would prove to us that
that individual would have the expertise to run the
department the way it should be and to be able to
have clean audits without any deficits, deficiencies.’’
Although Seney preferred Benway over the plaintiff,
Seney agreed to hire the plaintiff on the advice of Hawkins
and Brown. According to Seney, the recommendation
to hire the plaintiff was based on her having experience
overseeing other employees and because the plaintiff
was younger. Seney stated that ‘‘younger people are
known to be much better with computers.’’ Seney also
testified that the necessary qualifications for the assistant finance director position were the same as the
treasury and/or finance director position.8 Ultimately,
Seney admitted that the plaintiff was a ‘‘great candidate’’
and that is why the defendant hired her.
Although Seney testified that he told the plaintiff that
she needed to complete the audit by December 15,
2019, the record reflects that he and the defendant were
aware that the audit could not be completed until after
January, 2020, because the auditors were retained late.
Seney testified that, when the plaintiff was on maternity
leave, he tried to reach out to consultants to work on
8
Seney testified during his deposition that the defendant changed the job
title of treasury director to finance director.
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the audit and could not find any, so he decided to hire
Benway as the finance director to address the issues
the defendant had with its audit. Moreover, despite
Seney’s testimony that a candidate for the finance director position would have to demonstrate that he or she
had the expertise to run the department by having completed clean audits, it is undisputed that Benway never
submitted a clean audit on behalf of the defendant prior
to being hired as the defendant’s finance director.
Accordingly, on the basis of our review of the record,
we conclude that the plaintiff established a genuine
issue of material fact that she was qualified for promotion to the position of finance director. See, e.g., Kovaco
v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128,
136 (2d Cir. 2016) (‘‘[i]n opposing a defendant’s motion
for summary judgment, a plaintiff may satisfy this burden by showing that she possesses the basic skills necessary for performance of the job’’ (internal quotation
marks omitted)); Ellis v. Century 21 Dept. Stores, 975 F.
Supp. 2d 244, 270 (E.D.N.Y. 2013) (denying defendant’s
motion for summary judgment when plaintiff met ‘‘minimal’’ burden to demonstrate that she was qualified for
promotion).
Therefore, on the basis of the evidence submitted
in opposition to the defendant’s motion for summary
judgment, if believed, a trier of fact reasonably could
find that the plaintiff suffered adverse employment
actions when the defendant failed to reinstate her to
her original job or an equivalent one and when it failed
to promote her to the position of finance director after
she returned from maternity leave.
B
We next consider whether the plaintiff has submitted
evidence sufficient to establish a genuine issue of material fact that the adverse employment actions occurred
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under circumstances giving rise to an inference of discrimination. The court ‘‘must be alert to the fact that
[e]mployers are rarely so cooperative as to include a
notation in the personnel file that their actions are motivated by factors expressly forbidden by law. . . .
Because an employer who discriminates is unlikely to
leave a smoking gun attesting to a discriminatory intent,
a victim of discrimination is seldom able to prove [her]
claim by direct evidence, and is usually constrained to
rely on circumstantial evidence. . . .
‘‘Circumstances contributing to a permissible inference of discriminatory intent may include the employer’s continuing . . . to seek applicants from persons
of the plaintiff’s qualification to fill that position . . .
or the employer’s criticism of the plaintiff’s performance in . . . degrading terms . . . or its invidious
comments about others in the employee’s protected
group . . . or the more favorable treatment of employees not in the protected group . . . or the sequence of
events leading to the plaintiff’s discharge . . . or the
timing of the discharge. . . . The burden of proof that
must be met to permit an employment-discrimination
plaintiff to survive a summary judgment motion at the
prima facie stage is de minim[i]s. . . . Since the court,
in deciding a motion for summary judgment, is not to
resolve issues of fact, its determination of whether the
circumstances giv[e] rise to an inference of discrimination must be a determination of whether the proffered
admissible evidence shows circumstances that would
be sufficient to permit a rational finder of fact to infer
a discriminatory motive. It is not the province of the
summary judgment court itself to decide what inferences should be drawn.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Chambers v.
TRM Copy Centers Corp., 43 F.3d 29, 37–38 (2d Cir.
1994).
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In the present case, the plaintiff primarily relies on
the sequence and the timing of the events that occurred
shortly after she began maternity leave to establish that
the adverse employment actions occurred under circumstances giving rise to an inference of discrimination. Specifically, the plaintiff argues that, shortly after
commencing her maternity leave, the defendant denied
her a promotion by hiring Benway as finance director
and, after the plaintiff’s return from maternity leave,
her duties were fundamentally changed to effectively
that of an accounts receivable clerk. The defendant
contends that the plaintiff’s evidence was insufficient
to give rise to an inference of discrimination. The defendant maintains that the plaintiff’s argument ‘‘largely
centers on her claim that she was not returned to the
same job. But, as already established, that is plainly
false. She returned in May, 2020, to the exact same
position, with the exact same hours, that she left in
February, 2020. She worked nearly two months, before
her hours were then reduced.’’ It further maintains that
Seney cut the ‘‘hours of all employees . . . .’’
The evidence submitted in opposition to the defendant’s motion for summary judgment, however, suggests otherwise. Specifically, the evidence reveals that
Benway was hired as finance director in March, 2020,
shortly after the plaintiff went on maternity leave on
February 12, 2020. When the plaintiff returned from
maternity leave in May, 2020, she was notified that her
hours would be reduced effective July 1, 2020. As stated
previously, when the plaintiff did return from maternity
leave, she testified that she ‘‘literally had nothing to
do,’’ and that, although her official title technically had
not changed, her job functions, in practice, became that
of an accounts receivable clerk, essentially a demotion.
See, e.g., Lorenzo v. St. Luke’s-Roosevelt Hospital Center, 837 F. Supp. 2d 53, 69 (E.D.N.Y. 2011) (concluding
that plaintiff established prima facie case that she was
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demoted when evidence showed that, ‘‘[a]lthough not
styled a demotion, the combined effect of . . . changes
[to the plaintiff’s employment] could support a finding
of a materially adverse employment action’’); Pizzo v.
HSBC USA, Inc., Docket No. 04-CV-114A (RJA), 2007
WL 2245903, *9–10 (W.D.N.Y. August 1, 2007) (concluding that whether new position was demotion or substantially equivalent employment opportunity was disputed
issue of fact for jury to resolve, noting that ‘‘determining
equivalency of job position is usually a question of
fact’’).
Moreover, the plaintiff’s bank access, which she
needed in order to work with the auditors, was taken
away, and Benway had to pull the appropriate bank
statements. She also averred in her affidavit that she
was no longer allowed to attend monthly department
head meetings, which she had done prior to her maternity leave. She testified that, before she left on maternity
leave, ‘‘I was doing [the] audit, I was doing the budget,
I was doing time cards.’’ According to the plaintiff, she
had been doing ‘‘[e]ssentially, everything [Benway] was
doing . . . .’’ When she returned, however, she ‘‘was
doing what [Benway] was giving [her] to do.’’ She was
no longer ‘‘invited in for the bond dates for municipal
complex, [she] wasn’t allowed to talk to the auditors,
unless [she] was asked to talk to the auditors. [She]
wasn’t allowed to be in on the budget.’’ Finally, the
plaintiff also testified that, prior to her maternity leave,
she was a salaried employee earning $70,000 per year.
After her return from maternity leave, she was an hourly
employee, earning less pay.
In short, the plaintiff’s evidence submitted in opposition to the defendant’s motion for summary judgment
was that her duties and position were fundamentally
altered after her return from maternity leave. The plaintiff submitted evidence sufficient to demonstrate a genuine issue of material fact that, shortly after she began
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her maternity leave, Benway was hired for the position
of finance director and began to perform the same
duties that the plaintiff had been, at a higher rate of
pay than the plaintiff had been receiving before she
began maternity leave. At the same time, the plaintiff
also presented evidence that her job duties functionally
had been changed to those duties of a lower position
than the job she had held before her maternity leave.
As previously stated, the plaintiff testified that she was
told that she was doing well prior to her maternity
leave. Although the plaintiff’s primary duty was to complete the audit and she was told to complete as much
of the audit as she could prior to her maternity leave,
it was not completed, at least in part, due to the defendant’s late retention of the auditors. No more than one
month after the plaintiff went on maternity leave, Benway was hired to complete the audit and assume the
plaintiff’s duties, effectively replacing her. Therefore, in
light of the conflicting evidence presented, a reasonable
fact finder could infer that it was as a result of her
pregnancy.
On the basis of the proffered evidence, including the
timing and sequence of the alleged adverse employment
actions, a rational fact finder could conclude that the
plaintiff suffered adverse employment actions under
circumstances giving rise to an inference of discrimination. See, e.g., Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.
2001) (‘‘a plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim
by showing that the protected activity was closely followed in time by the adverse [employment] action’’
(internal quotation marks omitted)). We therefore conclude that the plaintiff presented evidence sufficient to
establish a prima facie case of pregnancy discrimination.
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C
‘‘Under the McDonnell Douglas . . . [burden shifting] analysis, establishing a prima facie case of discrimination creates a presumption that the defendant acted
illegally. . . . To establish a presumption is to say that
a finding of . . . [the prima facie case] produces a
required conclusion in the absence of explanation
. . . . To rebut this presumption, the defendant must
only articulate a legitimate, nondiscriminatory reason
for [its actions]. . . . This, too, is a burden of production, and the defendant merely needs to state a nondiscriminatory reason. The defendant does not have to
prove the absence of discrimination.’’ (Citations omitted; internal quotation marks omitted.) Craine v. Trinity College, supra,259 Conn. 643.
The defendant asserts that it articulated legitimate
nondiscriminatory reasons for its actions. Specifically,
the defendant first maintains that the plaintiff was hired
to submit the annual audit timely and properly, and
that the timely submission of a clean audit was a prerequisite for any future promotion. Second, the defendant
argues that financial motivations are legitimate business reasons for an adverse employment action and
that the reduction in the plaintiff’s work hours were a
legitimate reason to meet a $45,000 deficiency in the
department’s budget. Lastly, it maintains that there was
a vacancy in the accounts receivable position of the
department and that Benway properly asked the plaintiff to perform those duties.
D
Having proffered its reasons for its actions, we now
consider under the McDonnell Douglas framework
whether the plaintiff introduced evidence sufficient to
raise a genuine issue of material fact as to whether the
defendant’s stated reasons were a pretext for unlawful
discrimination.
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‘‘To prove pretext, the plaintiff may show by a preponderance of the evidence that [the defendant’s] reason
is not worthy of belief or that more likely than not it
is not a true reason or the only true reason for [the
defendant’s] decision to [terminate the plaintiff’s
employment] . . . . Of course, to defeat summary
judgment . . . the plaintiff is not required to show that
the employer’s proffered reasons were false or played
no role in the employment decision, but only that they
were not the only reasons and that the prohibited factor
was at least one of the motivating factors. . . . A plaintiff may show pretext by demonstrating such weaknesses, implausibilities, inconsistencies, incoherences,
or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable [fact finder]
could rationally find them unworthy of credence and
hence infer that the employer did not act for the
asserted non-discriminatory reasons.’’ (Citation omitted; internal quotation marks omitted.) Eldridge v. Hospital of Central Connecticut, supra, 230 Conn. App. 672.
In the present case, the plaintiff argues that a reasonable fact finder could conclude that the defendant’s
stated reasons were a pretext for its alleged adverse
employment actions. The defendant maintains that
there is ‘‘copious, undisputed evidence to support [its]
contention,’’ and, therefore, it has satisfied its burden
of production under the McDonnell Douglas framework. The evidence, however, viewed in the light most
favorable to the plaintiff, reflects that there are inconsistencies and disputes as to the defendant’s proffered
legitimate reasons for its actions, which a reasonable
fact finder rationally could believe and, hence, infer
that the defendant did not act for nondiscriminatory
reasons.
First, the defendant maintains that unsatisfactory job
performance is a legitimate nondiscriminatory reason
for not promoting the plaintiff and that, because the
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plaintiff did not complete the audit, Seney resorted to
other measures, ‘‘namely filling the WPCA finance director vacancy by hiring . . . Benway.’’ The evidence in
the record shows, however, that the defendant’s department was a ‘‘mess’’ for years. Because of the department’s deficiencies, the defendant decided to hire an
assistant director with the expectation of promoting
that individual to the position of finance director.
Among the three candidates that were interviewed for
the finance director position were the plaintiff and Benway. Seney preferred Benway, but because of her managerial and computer skills, the defendant hired the
plaintiff. When the plaintiff commenced work, the
defendant was already behind schedule with its annual
audit. It had yet to hire the required auditors, and,
because of that late hiring, the auditors could not perform the audit until after the deadline. Moreover, prior
to her maternity leave, the plaintiff was performing well.
She was told to complete as much of the audit as she
could before her maternity leave. In March, 2020, the
defendant hired Benway as the defendant’s finance
director at an annual salary of $75,000.
The defendant maintains that Benway was hired to
replace a vacancy in its WPCA department; however,
Seney testified that Benway was the defendant’s finance
director. He also testified that Benway was the plaintiff’s boss. Although Seney testified that the timely submission of a clean audit was a prerequisite for any
future promotion to finance director, it is undisputed
that Benway, Seney’s preferred candidate, was hired as
the defendant’s finance director without fulfilling this
requirement. Notably, despite the defendant hiring Benway to complete the audit, the record reflects that the
audit remained incomplete even after the plaintiff
returned from her maternity leave.
Second, the defendant maintains that the department
had a deficiency of $45,000 in its budget and the plaintiff’s hours were reduced to make up for that shortfall.
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It argues that financial motivations are also legitimate
business reasons for an employment action. Although
the hours of the part-time employees of the department
decreased, there was evidence that Benway’s salary as
the finance director was $75,000, $5000 more than the
plaintiff’s salary before she left for maternity leave, and
that Benway was given more paid time off than the
plaintiff had been given.
Lastly, the defendant maintains that there was a
retirement in its department, leaving the accounts
receivable position vacant and, therefore, Benway was
within her right to ask the plaintiff to complete those
essential duties. The record clearly reflects, however,
that the retirement in the department that created the
vacancy in the accounts receivable position did not
occur until June, 2020. The record further reflects that
Benway was performing all of the plaintiff’s duties when
the plaintiff returned to work from maternity leave on
May 11, 2020.
On the basis of this evidence, if believed, a jury reasonably could conclude that the defendant’s stated reasons for its actions were a pretext for its failure to
reinstate the plaintiff to her former position or an equivalent one and for its failure to promote her to finance
director. Accordingly, we conclude that the court
improperly rendered summary judgment in favor of the
defendant on count one.
II
The plaintiff next claims that the court incorrectly
determined that there were no genuine issues of material fact that she was subjected to gender discrimination. Specifically, the plaintiff argues that she was
‘‘denied [a] promotion to the finance director position
because of gender discrimination.’’ We decline to
review this claim because it has been inadequately
briefed.
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The plaintiff’s brief to this court merely states that
‘‘[t]he hiring of Benway is not legally dispositive. While
female, Benway did not have a newborn at home at the
time of hire [and] [g]ender plus familial status can also
support a ‘sex plus’ claim under Title VII.’’ In support
of this claim, the plaintiff cites, without substantial analysis, to three federal cases: Back v. Hastings on Hudson
Union Free School District, 365 F.3d 107, 113 (2d Cir.
2004); Towers v. State University of New York at Stony
Brook, Docket No. CV-04-5243 (FB) (RML), 2007 WL
1470152, *1 (E.D.N.Y. May 21, 2007); and Trezza v. Hartford, Inc., Docket No. 98 CIV. 2205 (MBM),
1998 WL
912101, *7 (S.D.N.Y. December 30, 1998). The plaintiff’s
brief, however, is devoid of any discussion of the elements of her gender discrimination claim, the law governing such a claim, or the court’s analysis of the claim.
We have repeatedly stated that ‘‘[w]e are not required
to review issues that have been improperly presented
to this court though an inadequate brief . . . . Analysis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs . . . . The parties may not
merely cite a legal principle without analyzing the relationship between the facts of the case and the law
cited.’’ (Internal quotation marks omitted.) Stubbs v.
ICare Management, LLC, 198 Conn. App. 511, 529,
233
A.3d 1170 (2020). Accordingly, we decline to review
this claim.
The judgment is reversed only with respect to count
one of the complaint and the case is remanded for
further proceedings according to law; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
