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   MACDERMID, INC. v. STEPHEN J. LEONETTI
                (AC 36750)
                 Gruendel, Alvord and West, Js.
        Argued March 11—officially released June 30, 2015

  (Appeal from Superior Court, judicial district of
              Waterbury, Shapiro, J.)
  Kathleen Eldergill, for the appellant (defendant).
  John R. Horvack, Jr., with whom, on the brief, was
John L. Cordani, Jr., for the appellee (plaintiff).
                         Opinion

   GRUENDEL, J. This case raises the question of
whether a claim of civil retaliation, under General Stat-
utes § 31-290a, alleging discrimination by an employer
against an employee for filing a claim under the Work-
ers’ Compensation Act (act), General Statutes § 31-275
et seq., can be filed as a counterclaim in the same action
in which the alleged litigation misconduct arose. The
defendant, Stephen J. Leonetti, appeals from the sum-
mary judgment rendered by the trial court in favor of
the plaintiff, MacDermid, Inc., with regard to the defen-
dant’s counterclaim.1 Specifically, the defendant argues
that the court improperly concluded that his counter-
claim was premature because it alleged litigation mis-
conduct by the plaintiff in the same underlying action.
The court concluded that the plaintiff’s case must be
resolved before the defendant can raise a claim of litiga-
tion misconduct against the plaintiff. On this issue of
first impression, we conclude that a claim under § 31-
290a, when premised solely on litigation misconduct,
rather than on conduct outside of the judicial process,
may not be brought prior to termination of the underly-
ing litigation. Accordingly, we affirm the judgment of
the trial court.
   The following facts and procedural history are rele-
vant to our resolution of this appeal. The plaintiff
employed the defendant for approximately twenty-eight
years. The defendant’s employment was terminated in
November, 2009. On February 2, 2010, the plaintiff and
the defendant entered into a termination agreement
which stated, in part, that the plaintiff would pay the
defendant $70,228.51, and the defendant would release
all legal claims that he had or might acquire against the
plaintiff. At the time the agreement was signed, the
Workers’ Compensation Commissioner (commis-
sioner) had not approved the agreement as a ‘‘voluntary
agreement’’ or stipulation as required by General Stat-
utes § 31-296.2
   After a formal hearing, ‘‘[t]he commissioner . . .
found that, without approval by a commissioner, the
agreement did not effectively waive the parties’ rights
and obligations under the act . . . [and] that the
agreement should not be approved as a full and final
stipulation of the [defendant’s] workers’ compensation
claim. . . . The plaintiff appealed from the commis-
sioner’s decision to the Workers’ Compensation Review
Board (board), which affirmed the commissioner’s deci-
sion. . . . Thereafter, the plaintiff appealed from the
decision of the board to the Appellate Court and filed
the present action in Superior Court alleging civil theft,
fraud, unjust enrichment, and conversion, premised on
the defendant’s admission that he never intended to
release his workers’ compensation claim. . . . [T]he
plaintiff seeks, inter alia, rescission of the agreement,
return of the $70,228.51 it paid the defendant under the
agreement, and damages. In response, the defendant
filed a counterclaim alleging that the plaintiff violated
§ 31-290a by initiating the present action solely in retali-
ation for the defendant’s exercise of his rights under
the act. In his counterclaim, the defendant seeks com-
pensatory damages, punitive damages, costs, and attor-
ney’s fees. Thereafter, the plaintiff moved to dismiss
the defendant’s counterclaim, arguing that the court
lacked subject matter jurisdiction over that claim
because the act of filing an action is protected by the
doctrine of absolute immunity.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
MacDermid, Inc. v. Leonetti, 310 Conn. 616, 621–22,
79 A.3d 60 (2013). The trial court denied that motion,
concluding that the defendant’s counterclaim was not
barred by the doctrine of absolute immunity. On appeal,
our Supreme Court affirmed the decision of the trial
court. Id., 640.
   The plaintiff next moved for summary judgment on
the defendant’s counterclaim of retaliatory litigation.
The court granted the motion, concluding that the coun-
terclaim was premature and could not be brought until
the plaintiff’s action concluded. In its memorandum of
decision, the court stated that it found persuasive Wes-
Garde Components Group, Inc. v. Carling Technolo-
gies, Inc., Superior Court, judicial district of Hartford,
Docket No. CV-09-5028121-S (March 10, 2010) (49 Conn.
L. Rptr. 671), in which the court concluded that ‘‘no
claims based on alleged litigation misconduct in the
bringing or prosecution of such underlying claims [may]
be brought against them until the underlying claims are
finally resolved.’’ (Internal quotation marks omitted.)
The defendant now appeals from the summary judg-
ment rendered in favor of the plaintiff on his coun-
terclaim.
  The defendant claims that the court erred in granting
the plaintiff’s motion for summary judgment on his
counterclaim. The counterclaim alleged retaliation by
the plaintiff, in violation of § 31-290a,3 for instituting
and prosecuting its action against the defendant. The
plaintiff argued that a counterclaim alleging litigation
misconduct cannot be brought until the underlying liti-
gation has concluded. The court agreed and, in granting
the motion for summary judgment, determined that the
defendant’s counterclaim was premature and, there-
fore, must be postponed until after the plaintiff’s claims
are resolved. We agree.
   ‘‘The standards governing [an appellate tribunal’s]
review of a trial court’s decision to grant a motion for
summary judgment are well established. Practice Book
[§ 17–49] provides that summary judgment shall be ren-
dered 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 nonmov-
ing party. . . . [T]he scope of our review of the trial
court’s decision to grant [a] motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014).
‘‘[T]he use of a motion for summary judgment to chal-
lenge the legal sufficiency of a complaint is appropriate
when the complaint fails to set forth a cause of action
and the defendant can establish that the defect could
not be cured by repleading.’’ Larobina v. McDonald,
274 Conn. 394, 401, 876 A.2d 522 (2005).
   Section 31-290a provides in relevant part: ‘‘(a) No
employer who is subject to the provisions of this chap-
ter shall . . . discriminate against any employee
because the employee has filed a claim for workers’
compensation benefits . . . . (b) Any employee who
is so . . . discriminated against may . . . (1) Bring a
civil action in the superior court for the judicial district
where the employer has its principal office . . . .’’ Our
Supreme Court has compared § 31-290a with the torts
of vexatious litigation and abuse of process. ‘‘The torts
of vexatious litigation and abuse of process both pro-
hibit conduct that subverts the underlying purpose of
the judicial process. Specifically, these causes of action
prevent, or hold an individual liable for, the improper
use of the judicial process for an illegitimate purpose,
namely, to inflict injury upon another individual in the
form of unfounded actions. . . . Section 31–290a mir-
rors the purpose of these torts by preventing, or holding
employers liable for, discrimination against an
employee who exercises his rights under the act. . . .
In the context of employer initiated litigation . . .
§ 31–290a is designed to prevent, or hold the employer
liable for, the improper use of the judicial process for
the illegitimate purpose of retaliating against an
employee for his exercise of his rights under the act.’’
(Citation omitted.) MacDermid, Inc. v. Leonetti, supra,
310 Conn. 616. Although § 31-290a actions may be
brought for a variety of actions that do not allege
improper use of the judicial system,4 in the present case,
the defendant’s counterclaim is, at its essence, a claim
of vexatious litigation or abuse of process. Essentially,
the defendant claims that the plaintiff, in prosecuting
the present action, improperly used the judicial system
to discriminate and harass the defendant because he
availed himself of the benefits of the act. As a matter
of first impression, we look to our case law on vexatious
litigation and abuse of process for guidance on the
issue of whether such a claim may be brought as a
counterclaim in the same action in which the alleged
retaliation occurred.
  ‘‘The cause of action for vexatious litigation permits
a party who has been wrongfully sued to recover dam-
ages.’’ Bernhard-Thomas Building Systems, LLC v.
Dunican, 286 Conn. 548, 553, 944 A.2d 329 (2008). ‘‘In
Connecticut, the cause of action for vexatious litigation
exists both at common law and pursuant to statute.
. . . [T]o establish a claim for vexatious litigation at
common law, one must prove want of probable cause,
malice and a termination of suit in the plaintiff’s favor.
. . . The statutory cause of action for vexatious litiga-
tion exists under [General Statutes] § 52–568, and dif-
fers from a common-law action only in that a finding
of malice is not an essential element, but will serve as
a basis for higher damages. . . . In the context of a
claim for vexatious litigation, the defendant lacks prob-
able cause if he lacks a reasonable, good faith belief in
the facts alleged and the validity of the claim asserted.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 554.
   Vexatious litigation claims may not be brought until
the underlying action that is the source of the alleged
misconduct has concluded. ‘‘[U]nder Connecticut law,
a counterclaim alleging vexatious litigation may not be
brought in the same action as that which the defendant
claims is vexatious.’’ Somers v. Chan, 110 Conn. App.
511, 542, 955 A.2d 667 (2008) (court concluded that
counterclaim for vexatious litigation was premature).
‘‘In suits for vexatious litigation, it is recognized to be
sound policy to require the plaintiff to allege that prior
litigation terminated in his favor. This requirement
serves to discourage unfounded litigation without
impairing the presentation of honest but uncertain
causes of action to the courts.’’ (Emphasis added.)
Blake v. Levy, 191 Conn. 257, 263, 464 A.2d 52 (1983).
This favorable termination requirement is an essential
element of a vexatious litigation claim.
   Similarly, the tort of abuse of process also provides
a cause of action against the improper use of the judicial
system. ‘‘An action for abuse of process lies against
any person using a legal process against another in an
improper manner or to accomplish a purpose for which
it was not designed. . . . Because the tort arises out
of the accomplishment of a result that could not be
achieved by the proper and successful use of process,
the Restatement Second (1977) of Torts, § 682, empha-
sizes that the gravamen of the action for abuse of pro-
cess is the use of a legal process . . . against another
primarily to accomplish a purpose for which it is not
designed . . . .’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) Mozzochi v.
Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).
   Although abuse of process claims do not include
favorable termination as an essential element, the cause
of action is still considered premature until the underly-
ing litigation has been completed. Larobina v. McDon-
ald, supra, 274 Conn. 407–408. In Larobina, our
Supreme Court concluded that an abuse of process
claim was properly dismissed as premature when the
underlying action was still pending. Id., 408. In reaching
this conclusion, the court stated: ‘‘Although we do not
suggest that success in the first action would be a pre-
requisite for an abuse of process claim . . . it is appar-
ent that the eventual outcome of that action and the
evidence presented by the parties therein would be
relevant in litigating an abuse of process claim. . . .
Moreover, allowing the [abuse of process] claim could
. . . effectively chill the vigorous representation of cli-
ents by their attorneys.’’ Id., 407–408.
   Although we recognize that § 31-290a claims may be
based on conduct that does not implicate the improper
use of the judicial system, the defendant in the present
case alleges only the plaintiff’s act in initiating and
prosecuting the present dispute as the basis for his
counterclaim of discrimination. As alleged, this claim
is indistinguishable from that of a claim of vexatious
litigation or abuse of process. Accordingly, we conclude
that this claim was premature and may not be brought
until the completion of the underlying action that is the
source of the alleged misconduct.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     The defendant also appealed from the denial of his motion for summary
judgment on the complaint and his motion to reargue. During the pendency
of this appeal, the plaintiff filed a motion to dismiss the appeal on the basis
that this court lacked subject matter jurisdiction. Specifically, the plaintiff
argued that a denial of a motion for summary judgment was not a final
judgment for purposes of an appeal. On November 5, 2014, this court granted
the motion to dismiss and dismissed the appeal ‘‘except for those issues . . .
related to the trial court’s granting of summary judgment on the defendant’s
amended counterclaim.’’
   2
     General Statutes § 31-296 (a) provides in relevant part: ‘‘If an employer
and an injured employee . . . at a date not earlier than the expiration of
the waiting period, reach an agreement in regard to compensation, such
agreement shall be submitted in writing to the commissioner by the employer
with a statement of the time, place and nature of the injury upon which it
is based; and, if such commissioner finds such agreement to conform to
the provisions of this chapter in every regard, the commissioner shall so
approve it. . . .’’
   3
     General Statutes 31-290a provides in relevant part: ‘‘(a) No employer
who is subject to the provisions of this chapter shall discharge, or cause
to be discharged, or in any manner discriminate against any employee
because the employee has filed a claim for workers’ compensation benefits
or otherwise exercised the rights afforded to him pursuant to the provisions
of this chapter. (b) Any employee who is so discharged or discriminated
against may either: (1) Bring a civil action in the superior court for the judicial
district where the employer has its principal office for the reinstatement of
his previous job, payment of back wages and reestablishment of employee
benefits to which he would have otherwise been entitled if he had not been
discriminated against or discharged and any other damages caused by such
discrimination or discharge. The court may also award punitive damages.
Any employee who prevails in such a civil action shall be awarded reasonable
attorney’s fees and costs to be taxed by the court; or (2) file a complaint
with the chairman of the Workers’ Compensation Commission alleging viola-
tion of the provisions of subsection (a) of this section. . . .’’
   4
     For instance, we recognize that § 31-290a claims could include the dis-
criminatory treatment of an employee at his place of work or the termination
of that employee. The application of the statute under those circumstances
would not constitute a claim of vexatious litigation or abuse of process.
