Justia.com Opinion Summary: Plaintiff Carmen Perez-Dickson brought this action claiming that Defendants, the city board of education, the former assistant superintendent of the school district, and the former acting superintendent of the school district, disciplined her for exercising her right to free speech protected by the state and federal Constitutions in violation of Conn. Gen. Stat. 31-51q and 17a-101e, discriminated against her on the basis of her race, and intentionally caused her severe emotional distress. The jury returned a verdict in favor of Plaintiff on all counts. The Supreme Court reversed, holding (1) Defendants did not violate section 31-51q because any relevant speech by Plaintiff had been pursuant to her official job duties and such speech is not protected by the First Amendment; (2) Plaintiff failed to prove her claim of racial discrimination; and (3) Plaintiff failed to prove that Defendants had intentionally inflicted severe emotional distress on her. Remanded with direction to render judgment for Defendants.
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CARMEN I. PEREZ-DICKSON v. CITY OF
BRIDGEPORT ET AL.
(SC 18401)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and
Harper, Js.
Argued May 18, 2011—officially released May 1, 2012
Steven D. Ecker, with whom was Gavan F. Meehan,
for the appellants-cross appellees (defendants).
Max F. Brunswick, with whom were Valerie Adams
Baker and Josephine Smalls Miller for the appelleecross appellant (plaintiff).
Marc P. Mercier filed a brief for the Connecticut
Employment Lawyers Association as amicus curiae.
Opinion
ROGERS, C. J. The plaintiff, Carmen I. Perez-Dickson,
brought this action claiming that the defendants, the
board of education of the city of Bridgeport (board),
Henry R. Kelly, the former assistant superintendent of
the Bridgeport public schools (school district), and
Daniel Shamas,1 the former acting superintendent of
the school district, disciplined her for exercising her
rights guaranteed by the first amendment to the United
States constitution2 and article first, §§ 3, 4 and 14, of
the Connecticut constitution3 in violation of General
Statutes §§ 31-51q4 and 17a-101e,5 discriminated against
her on the basis of her race in violation of 42 U.S.C.
§§ 19816 and 1983,7 and intentionally caused her severe
emotional distress. The jury returned a verdict in favor
of the plaintiff on all counts and awarded compensatory
and punitive damages of $2,003,000, which the trial
court subsequently reduced to $1,003,000. Thereafter,
the trial court awarded attorney’s fees and offer of
judgment interest to the plaintiff and rendered judgment
in accordance with the verdict. The defendants then
appealed8 claiming that the trial court improperly
denied their motion for a directed verdict, to set aside
the verdict, and for judgment notwithstanding the verdict on the grounds that: (1) the defendants did not
violate § 31-51q because any relevant speech by the
plaintiff had been pursuant to her official job duties and
such speech is not protected by the first amendment; (2)
the plaintiff failed to prove her claim of racial discrimination pursuant to 42 U.S.C. §§ 1981 and 1983; and (3)
the plaintiff failed to prove that the defendants had
intentionally inflicted severe emotional distress on her.
In addition, the defendants claim that the trial court
lacked subject matter jurisdiction over the plaintiff’s
claim pursuant to § 17a-101e, improperly admitted certain newspaper articles as evidence at trial, and improperly calculated offer of judgment interest. The plaintiff
filed a cross appeal claiming that the trial court improperly had reduced the damage award and improperly
calculated offer of judgment interest. In addition, she
contends that her claim pursuant to § 31-51q may be
affirmed on the alternate ground that the defendants
disciplined her for exercising her speech rights under
article first, §§ 3, 4 and 14, of the state constitution,
which protect an employee’s speech pursuant to official
job duties. We agree with the defendants’ first three
claims and with their claim that the trial court lacked
jurisdiction over the plaintiff’s claim pursuant to § 17a101e. We also conclude that the plaintiff’s alternate
ground for affirmance was not preserved for review.
Accordingly, we reverse the judgment of the trial court
and direct judgment for the defendants.9
The jury reasonably could have found the following
facts. In 1998, the plaintiff, who is of African-American
and Puerto Rican descent, was appointed as the princi-
pal of Beardsley School in the school district. In December of that year, she noticed that a white male teacher,
V.L., was repeatedly mistreating a sixth grade student.
At one point, the student came to the plaintiff and
showed her his hand, which was red and swollen. The
student told her that V.L. had followed him as he entered
the lavatory and had squeezed his hand around the
doorknob so hard that he caused the injury. The plaintiff
took the student to the school nurse and instructed her
to report the injury to the department of children and
families (department). The plaintiff also telephoned
Kelly and told him what had happened. In addition, she
sent a memorandum to Kelly about the incident. V.L.
was placed on paid administrative leave several months
after the incident.
In January, 1999, Kelly asked all of the school district
principals, including the plaintiff, to come individually
to his office to discuss what they had achieved during
the first half of the school year. During his meeting with
the plaintiff, Kelly stated that he was concerned about
the climate at Beardsley School and that the plaintiff’s
career was in jeopardy.10 The plaintiff ‘‘got choked up’’
and was frightened. Kelly also told the plaintiff at one
point that she should not ‘‘make waves’’ at the school
and that, if she intended to walk around the school and
visit classrooms, she should carry keys in her pocket
and jingle them so that the teachers could hear her
coming and ‘‘behave.’’
In April, 1999, a parent of a student at Beardsley
School told the plaintiff that a teacher, T.B., had thrown
the student against the wall and physically and verbally
abused him. The plaintiff reported the abuse to the
department and to Kelly. Kelly came to the plaintiff’s
office and interviewed the student about the incident.
After reviewing the student’s school record, Kelly
observed that the student had moved frequently and
told the student that he seemed to be a problem. The
plaintiff told Kelly that the student was the victim and
the fact that he moved around a lot did not justify the
abuse. Kelly then gave the plaintiff ‘‘a look’’ and raised
his eyebrows. T.B. ultimately was placed on paid administrative leave for six weeks.
At the end of the 1998–1999 school year, Kelly prepared a written evaluation of the plaintiff’s performance
in which he directed the plaintiff to ‘‘adjust her managerial style, as necessary, to better ensure effective communication,
collaboration
and
mutual
high
expectations of students and staff alike’’ and to
‘‘improve in her efforts to identify, address, and (where
possible) resolve staff issues, to improve staff morale.’’
The plaintiff wrote on the appraisal form that test scores
and student attendance had improved during the course
of the year.
In December, 1999, the plaintiff was quoted in a newspaper article as saying that, as a parent and a child
advocate, she did not agree with the discipline that V.L.
and T.B. had received, and thought that it should have
been more aggressive. Shortly thereafter, she received
a letter from attorneys for the board requesting that
she come to a meeting to discuss whether she had
revealed confidential information to the newspaper.
The plaintiff told the attorneys at the meeting that the
newspaper had misquoted her and that she did not
know what the outcome of the abuse cases had been.
At the end of the 1999–2000 school year, Shamas
transferred the plaintiff to Newfield School in the school
district. Kelly told the plaintiff that she was being transferred because too many teachers were transferring
away from Beardsley School. The plaintiff viewed the
transfer as a demotion because Newfield School, which
had fewer than 300 students, was much smaller than
Beardsley School, which had approximately 750 students, and she would be paid $1000 less per year. In
2003, the plaintiff was transferred to Roosevelt School
in the school district, which had approximately 900
students.
In 2000, the plaintiff filed a complaint alleging, inter
alia, that, from 1998 through 2000, Kelly, joined by Shamas, had engaged in ‘‘a campaign of harassment, discrimination and retaliation directed against [her] in
response for her cooperation with [the department] and
its investigation of the assaults’’ by V.L. and T.B. and
that because, in reporting the alleged assaults to the
department, she had ‘‘exercised her rights guaranteed
by the first amendment to the United States constitution
and/or [§§] 3, 4, and 14 of article first of the constitution
of the state of Connecticut,’’ the defendants’ alleged
conduct had violated §§ 31-51q and 17a-101e. In addition, she claimed that the defendants’ conduct had been
motivated by race in violation of 42 U.S.C. § 1981 and
that it had constituted intentional and negligent infliction of emotional distress.
On November 17, 2005, Teresa Carroll, a school board
administrator, telephoned the plaintiff and asked her
to come to a meeting the next morning. Because Carroll
refused to tell the plaintiff what the meeting was about,
the plaintiff called John Ramos, the superintendent of
the school district.11 Ramos told the plaintiff that he
knew the purpose of the meeting, but that he would
not discuss it with her at that time. Carroll informed
the plaintiff at the meeting that she had been accused
of abusing a student, that she was being placed on paid
administrative leave immediately and that she would
not be allowed to return to work. The plaintiff became
very upset and asked who she had been accused of
abusing and the details of the accusation. Carroll
refused to answer her questions.
Ramos made the decision to place the plaintiff on
administrative leave. He testified at trial that he had
become superintendent in June, 2005, that he was not
aware of the plaintiff’s history in the school system and
that his decision was based solely on the gravity of the
allegations against her and the fact that the accusation
had been made by an adult staff member.
The plaintiff ultimately discovered from reading the
newspaper that she had been accused of sexually abusing a male student. The fact that she had been accused
of student abuse was reported in a number of newspaper articles. The plaintiff also eventually learned that
Deborah Santacapita, an assistant principal at Roosevelt School, had reported to Carroll that she had
observed the plaintiff hugging a fourteen year old boy
while cupping his buttocks in her hands, ‘‘nuzzling’’
his neck and telling him that he smelled good. The
department, which had been notified about the allegations of abuse against the plaintiff and had conducted an
investigation, ultimately determined that the allegations
were unsubstantiated, and the plaintiff returned to work
in January, 2006.12
In 2007, the plaintiff filed a fifth revised complaint
in which she repeated the previous allegation that she
had been subjected to a campaign of harassment in
retaliation for the exercise of her constitutional speech
rights from 1998 through 2000 in violation of §§ 31-51q
and 17a-101e,13 and added a claim that the defendants’
response to the abuse accusation against her in 2005
had violated those statutes. In addition, as in her original
complaint, she alleged that the defendants had discriminated against her on the basis of her race in violation
of 42 U.S.C. §§ 1981 and 1983 and had intentionally
inflicted severe emotional distress on her.
After the plaintiff rested her case at trial, the defendants made an oral motion for a directed verdict in
their favor. They argued that, under Garcetti v. Ceballos,
547 U.S. 410, 427, 126 S. Ct. 1951, 164 L. Ed. 2d 689
(2006), ‘‘when public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for [f]irst [a]mendment purposes.’’
(Internal quotation marks omitted.) Id., 421 (‘‘[w]e hold
that when public employees make statements pursuant
to their official duties, the employees are not speaking
as citizens for [f]irst [a]mendment purposes, and the
[c]onstitution does not insulate their communications
from employer discipline’’). They further argued that,
because the plaintiff had testified that she reported
the abuse as a mandated reporter pursuant to General
Statutes § 17a-101a et seq., and because she was subject
to the school district’s policy regarding the reporting
of student abuse, under Garcetti, the trial court should
render ‘‘judgment as a matter of law that [the plaintiff’s]
activity could not constitute a matter of public concern.’’14 In response, the plaintiff argued that ‘‘Connecticut [c]ourts have not yet ruled upon whether or not
Garcetti applies to state statutes such as § 31-51q’’ and
that ‘‘it would make very little sense for the Connecticut
courts to decide that a specific state statute can be
overruled or undermined in this way.’’15 In turn, the
defendants claimed that, because the scope of speech
protected by the first amendment was a federal issue,
Garcetti controlled. The trial court reserved its decision
on the motion for a directed verdict until the completion
of trial.
The jury returned a verdict for the plaintiff and
awarded $3000 in economic damages; $250,000 in noneconomic damages and $250,000 in punitive damages
on the claim pursuant to §§ 31-51q and 17a-101e;
$250,000 in noneconomic damages and $250,000 in punitive damages on the claim pursuant to 42 U.S.C. §§ 1981
and 1983; and $500,000 in noneconomic damages and
$500,000 in punitive damages on the claim of intentional
infliction of emotional distress. Thus, the total damage
award was $2,003,000.
After trial, the defendants filed a renewed motion
for a directed verdict, to set aside the verdict and for
judgment notwithstanding the verdict (motion for a
directed verdict) and, in the alternative, for remittitur.
In support of this motion, they again argued that, under
Garcetti, ‘‘the [f]irst [a]mendment does not prohibit
managerial discipline based on an employee’s expressions made pursuant to official responsibilities.’’ Garcetti v. Ceballos, supra, 547 U.S. 424. They further
argued that, as a matter of law, such speech ‘‘simply
does not constitute a matter of public concern’’
under Garcetti.
In her opposition to the defendants’ motion, the plaintiff argued that Garcetti did not apply to claims pursuant
to § 17a-101e. She further argued that, ‘‘in the absence
of any clear direction from Connecticut appellate courts
that employees such as [the plaintiff] cannot be protected from retaliation for making reports of child
abuse, this court may not state as a matter of law that
[the plaintiff’s] claim under § 31-51q must fail.’’ Without
mentioning Garcetti, the trial court denied the defendants’ motion for a directed verdict.16
The court granted the motion for remittitur in part,
however, and eliminated the awards of $500,000 for
noneconomic damages on the intentional infliction of
emotional distress claim and reduced the punitive
award for that claim from $500,000 to attorney’s fees
and nontaxable costs, resulting in a damages award of
$1,003,000. Thereafter, the court awarded the plaintiff
attorney’s fees of $250,000 and offer of judgment interest in the amount of $596,878 and rendered judgment
in accordance with the verdict. This appeal and cross
appeal followed.17
I
We first address the defendants’ claims related to the
verdict in favor of the plaintiff on her claims pursuant
to §§ 31-51q and 17a-101e.18
A
We begin with the defendants’ claim that the trial
court improperly concluded that the plaintiff’s claim
that the defendants had disciplined her for exercising
her first amendment rights in violation of § 31-51q is
not barred by Garcetti v. Ceballos, supra, 547 U.S. 410.19
In that case, the United States Supreme Court concluded that, ‘‘when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for [f]irst [a]mendment purposes,
and the [c]onstitution does not insulate their communications from employer discipline.’’ Id., 421. The plaintiff
does not dispute this principle on appeal, nor does she
claim that she was not speaking pursuant to her official
duties when she reported that V.L. and T.B. had abused
students.20 Accordingly, it is undisputed that the plaintiff’s claim that the defendants had violated § 31-51q by
disciplining her for exercising her rights under the first
amendment is barred by Garcetti. As a result, the trial
court improperly denied the defendants’ motion for a
directed verdict.
With respect to the plaintiff’s claim that the judgment
can be affirmed on the alternate ground that the defendants violated § 31-51q because they disciplined her for
exercising her speech rights under the state constitution, which are broader than her rights under the first
amendment, we conclude that this claim was not preserved for review because she never made that claim
to the trial court. Accordingly, the trial court and the
defendants were entitled to assume that her speech
rights under the state constitution were coextensive
with her first amendment rights. See State v. Gore, 288
Conn. 770, 776 n.7, 955 A.2d 1 (2008) (when party does
not provide separate analysis of jury trial right under
state constitution, this court treats claim as if rights
under state and federal constitutions are coextensive).21
This court previously has held that ‘‘[o]nly in [the]
most exceptional circumstances can and will this court
consider a claim, constitutional or otherwise, that has
not been raised and decided in the trial court. . . . This
rule applies equally to alternate grounds for
affirmance.’’ (Citation omitted; internal quotation
marks omitted.) New Haven v. Bonner, 272 Conn. 489,
498, 863 A.2d 680 (2005); see also Thomas v. West
Haven, 249 Conn. 385, 390 n.11, 734 A.2d 535 (1999)
(‘‘[t]he appellee’s right to file a [Practice Book] § 63-4
[a] [1] statement has not eliminated the duty to have
raised the issue in the trial court’’ [internal quotation
marks omitted]), cert. denied, 528 U.S. 1187, 120 S. Ct.
1239, 146 L. Ed. 2d 99 (2000); Peck v. Jacquemin, 196
Conn. 53, 62 n.13, 491 A.2d 1043 (1985) (‘‘compliance
with [Practice Book § 63-4 (a) (1)] is not to be considered in a vacuum; particularly to be considered is its
linkage with [Practice Book § 60-5] which provides in
part that this court ‘shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial’ ’’).22 ‘‘Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and
appeal or where the record supports a claim that a
litigant has been deprived of a fundamental constitutional right and a fair trial. . . . An exception may also
be made where consideration of the question is in the
interest of public welfare or of justice between the
parties.’’23 (Internal quotation marks omitted.) Lopiano
v. Lopiano, 247 Conn. 356, 373, 752 A.2d 1000 (1998).
We perceive no such exceptional circumstances in
the present case. The plaintiff had ample opportunity
at trial to raise the claim that Garcetti does not bar her
claim pursuant to § 31-51q because the state constitution provides broader protection than the federal constitution, the trial court had the authority to rule on the
issue, there has been no intervening change in the law,
the plaintiff’s claim is not of constitutional magnitude,24
and the plaintiff received a fair trial.
Moreover, even if we were to assume that a lack of
prejudice to an appellant would justify review of an
alternate ground for affirmance that was not raised in
the trial court, even in the absence of other exceptional
circumstances, the plaintiff in the present case has not
established that the defendants would not be prejudiced
if we were to review this claim.25 First, even if we
assume that the trial court’s denial of the defendants’
motion for a directed verdict and instructions to the
jury were proper under the state constitution, because
the defendants believed—rightly—that the plaintiff’s
claims under the first amendment are barred by Garcetti, and they properly presumed that the state constitution provides no broader protection, the defendants
may have made the tactical decision to avoid the
expense and inconvenience of calling a large number
of witnesses to testify in support of other potential
defenses to the plaintiff’s claims. The defendants should
not be punished for their failure to present all possible
evidence at the first trial when they had every reason
to believe that, even if they presented no evidence, the
plaintiff’s claim was barred by Garcetti. Accordingly,
if we were to conclude that Garcetti does not bar the
plaintiff’s claim under the state constitution, we would
be required to afford the defendants an opportunity to
present additional evidence under the new standard.
See Oram v. Capone, 206 App. Div. 2d 839, 840, 615
N.Y.S.2d 799 (1994) (‘‘[a]n issue may not be raised for
the first time on appeal . . . where it could have been
obviated or cured by factual showings or legal countersteps in the trial court’’ [internal quotation marks
omitted]); Outdoor Media Dimensions, Inc. v. State,
331 Or. 634, 660, 20 P.3d 180 (2001) (‘‘even if the record
contains evidence sufficient to support an alternative
basis for affirmance, if the losing party might have created a different record below had the prevailing party
raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance’’ [emphasis in original]); cf.
State v. DeJesus, 288 Conn. 418, 437–38 n.14, 953 A.2d
45 (2008) (when judgment of conviction is reversed
because of change in settled law, case should be
remanded for new trial even when it is unlikely that
state could present new evidence that would satisfy
new standard because ‘‘it is not the function of this
court, as an appellate tribunal, to deprive the state of
that opportunity’’); State v. Lawrence, 282 Conn. 141,
156, 920 A.2d 236 (2007) (function of appellate tribunal
is ‘‘to review, and not to retry, the proceedings of the
trial court’’ [emphasis added; internal quotation marks
omitted]). Thus, the defendants would be subject,
through no fault of their own, to the great expense and
inconvenience of a second trial. Such a result would be
inconsistent with the purpose of waiver and forfeiture
rules, namely, to ‘‘ensure that parties can determine
when an issue is out of the case, and that litigation
remains, to the extent possible, an orderly progression.
The reason for the rules is not that litigation is a game,
like golf, with arbitrary rules to test the skill of the
players. Rather, litigation is a winnowing process, and
the procedures for preserving or waiving issues are part
of the machinery by which courts narrow what remains
to be decided.’’ (Internal quotation marks omitted.)
Exxon Shipping Co. v. Baker, 554 U.S. 471, 488 n.6,
128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008); see also id.,
487 (recognizing that party can raise new argument
on appeal in support of properly preserved claim, but
rejecting suggestion that ‘‘a litigant could add new constitutional claims as he went along, simply because he
had ‘consistently argued’ that a challenged [action] was
unconstitutional’’).
Second, the plaintiff’s alternate ground for affirmance
raises a question of first impression for this court, and
it is not at all clear that a conclusion that Garcetti does
not apply to claims pursuant to the state constitution
would require this court to conclude that the trial court
instructed the jury as to the proper legal standard. We
note, for example, that before its decision in Garcetti,
the United States Supreme Court had held that speech
by a public employee was protected by the first amendment only if the speech was on a matter of public
concern and the employee’s free speech interest was
not outweighed by the employer’s interest ‘‘in promoting the efficiency of the public services it performs
through its employees.’’ (Internal quotation marks omitted.) Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct.
1684, 75 L. Ed. 2d 708 (1983). If we were to conclude that
the Connick standard applies to a public employee’s
speech pursuant to his or her official duties under the
state constitution, we would be required to reverse the
judgment and to remand the case for a new trial because
the trial court’s instruction to the jury was more liberal
than that standard.26
Third, affirming the damage award for the plaintiff’s
claim pursuant to § 31-51q would prejudice the defendants because the plaintiff’s failure to raise the state
constitutional issue in a timely manner deprived them
of the opportunity to evaluate and possibly to settle the
claim before the jury returned its verdict.27 Accordingly,
we conclude that the claim is unreviewable. We conclude, therefore, that the trial court improperly denied
the defendants’ motion for a directed verdict in their
favor on the plaintiff’s claim pursuant to § 31-51q, and
that the judgment for the plaintiff may not be affirmed
on the alternate ground that the plaintiff’s speech was
protected by the state constitution.
B
We next address the defendants’ claim that the trial
court lacked subject matter jurisdiction over the plaintiff’s claim pursuant to § 17a-101e because that statute
does not create a private cause of action. The plaintiff
contends that the defendants’ failure to raise this claim
at trial renders it unreviewable on appeal. We conclude
that the defendants’ claim is reviewable and that the
trial court lacked subject matter jurisdiction over the
plaintiff’s claim.
We first address the plaintiff’s claim that the defendants’ claim is unreviewable. The claim that § 17a-101e
does not provide a private cause of action implicates
the plaintiff’s standing to raise a claim pursuant to that
statute. See Burton v. Dominion Nuclear Connecticut,
Inc., 300 Conn. 542, 555, 23 A.3d 1176 (2011) (‘‘[S]tatutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other
words, in cases of statutory aggrievement, particular
legislation grants standing to those who claim injury
to an interest protected by that legislation.’’ [Internal
quotation marks omitted.]). ‘‘If a party is found to lack
standing, the court is without subject matter jurisdiction to determine the cause.’’ (Internal quotation marks
omitted.) Id., 550. ‘‘[A] claim that a court lacks subject
matter jurisdiction may be raised at any time during
the proceedings . . . including on appeal . . . .’’
(Citation omitted; internal quotation marks omitted.)
Bacon Construction Co. v. Dept. of Public Works, 294
Conn. 695, 704 n.9, 987 A.2d 348 (2010). Because the
defendants’ claim implicates the trial court’s subject
matter jurisdiction, we conclude that it is reviewable
even though the defendants have raised it for the first
time on appeal.
Turning to the merits of the claim that § 17a-101e
does not provide a private cause of action, ‘‘[w]e begin
our analysis with the well settled fundamental premise
that there exists a presumption in Connecticut that
private enforcement does not exist unless expressly
provided in a statute. In order to overcome that pre-
sumption, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the
statute. . . . In determining whether a private remedy
is implicit in a statute not expressly providing one,
several factors are relevant. First, is the plaintiff one
of the class for whose . . . benefit the statute was
enacted . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such
a remedy or to deny one? . . . Third, is it consistent
with the underlying purposes of the legislative scheme
to imply such a remedy for the plaintiff? . . .
‘‘Consistent with the dictates of [General Statutes]
§ 1-2z, however, we do not go beyond the text of the
statute and its relationship to other statutes unless there
is some textual evidence that the legislature intended,
but failed to provide expressly, a private right of action.
Textual evidence that would give rise to such a question
could include, for example, language granting rights to
a discrete class without providing an express remedy or
language providing a specific remedy to a class without
expressly delineating the contours of the right.’’ (Citations omitted; internal quotation marks omitted.)
Gerardi v. Bridgeport, 294 Conn. 461, 468–69, 985 A.2d
328 (2010).
Whether § 17a-101e provides a private cause of action
is a question of statutory interpretation over which our
review is plenary. See id., 467. ‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seeking to determine that meaning . . . § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.’’
(Internal quotation marks omitted.) Id., 467–68
Section 17a-101e provides in relevant part: ‘‘(a) No
employer shall discharge, or in any manner discriminate
or retaliate against, any employee who in good faith
makes a report pursuant to sections 17a-101a to 17a101d, inclusive, and 17a-103, testifies or is about to
testify in any proceeding involving child abuse or
neglect. The Attorney General may bring an action in
Superior Court against an employer who violates this
subsection. . . .’’
Both the contours of the right created by § 17a-101e
and the specific remedy for a violation of the right
are plain and unambiguous. Nothing in the text of the
statute even remotely suggests that, contrary to this
plain and unambiguous language, the legislature
intended to authorize private citizens to bring actions
on their own behalf pursuant to the statute. Indeed, the
plaintiff does not contend otherwise. Rather, she claims
only that the defendants’ claim that § 17a-101e does not
create a private cause of action is unreviewable, a claim
that we have rejected. Accordingly, we conclude that
§ 17a-101e does not provide a private cause of action
and that the trial court therefore lacked subject matter
jurisdiction over the plaintiff’s claim pursuant to that
statute.
II
We next address the defendants’ claim that the plaintiff failed to establish a prima facie case that they had
discriminated against her on the basis of her race in
violation of 42 U.S.C. §§ 1981 and 1983 or, in the alternative, that she failed to prove racial discrimination by a
preponderance of the evidence.28 We conclude that the
plaintiff failed to prove her case.
The following additional facts that the jury reasonably could have found are relevant to our resolution of
this claim.29 The board had a written policy concerning
child abuse that required all allegations of abuse to be
reported to the board’s director of social work who,
together with the principal of the school where the
abuse had occurred, or the principal’s designee, would
then ‘‘decide how to conduct [an] . . . internal investigation . . . .’’ At trial, the plaintiff presented documentary evidence that, when a teacher or administrator was
accused of abusing a student, the board had a regular
practice of interviewing the person who had been
accused before taking any action against the
employee.30 In addition, the plaintiff testified that, while
she was the principal at Beardsley School, a white
female teacher had been accused of physically abusing
a student. Susan Smith, the board’s director of social
work, had asked the plaintiff whether the accusation
was ‘‘in the realm of possibility . . . .’’ When the plaintiff said that it was not, there was no further action
against the teacher. In another case, a white female
teacher had been accused of ‘‘hurting’’ a student while
the plaintiff was the principal of Roosevelt School, and
the plaintiff had interviewed the teacher as part of her
investigation.31 The teacher was not placed on administrative leave.
Kelly testified on cross-examination that, when a
white male principal, L.R., had been accused by a parent
of physically abusing a student, the board had conducted a thorough investigation, including interviewing
a teacher, attempting to interview L.R., and requesting
that the school social worker prepare a written summary of interviews by the department. The incident
occurred in 1998. Kelly also testified that, in a case
in which an elementary school had been accused of
physically neglecting a student, the white female principal of the school, A.E., had been provided with an oppor-
tunity to respond to the accusation. The incident
occurred in 2000.
Smith testified that in 2003 or 2004, the board stopped
its practice of conducting extensive investigations of
abuse allegations against school district employees in
cases where the department was also conducting an
investigation. She stopped the practice because it was
her understanding that the department was concerned
that investigations by the board could taint witnesses
and interfere with the department’s investigations. Carroll testified, however, that, after the plaintiff was
placed immediately on administrative leave in the fall
of 2005, as the result of the allegation that she had
abused a student, Carroll investigated a number of
claims that school administrators had abused students
and interviewed the alleged perpetrator as part of the
investigation. In one case, Carroll interviewed a male
African-American principal about an alleged incident
of physical abuse that had occurred on October 13,
2006.32 In another case involving the plaintiff herself,
Carroll interviewed the plaintiff about a parent’s allegation that she had abused a student on February 15, 2008.
No one from the board ever interviewed the plaintiff or
the student she had been accused of abusing concerning
the allegations of abuse that led to her administrative
leave in 2005.
Ramos testified that, during the fall of 2005, he
became aware of pending allegations that a white male
principal in the school district, A.C., had engaged in
sexual harassment. He further testified that, when the
board became aware of allegations that A.C. had abused
students, it placed him on administrative leave without
first investigating the allegations or interviewing him.33
Kelly testified that an African-American female principal, S.A., who had been accused of physically abusing
a student in 2001, was given an opportunity to respond
to the accusation and was not placed on administrative
leave until the board received reports of additional
abuse. Kelly also testified that a male African-American
principal, J.A., who had been accused of physically
abusing a student on April 27, 2006, was provided with
specific information about the allegations against him
and was given an opportunity to respond.
At the conclusion of the plaintiff’s case, the defendants made an oral motion for a directed verdict on
the plaintiff’s claim pursuant to 42 U.S.C. §§ 1981 and
1983 on the ground, inter alia, that the evidence would
not support a finding of racial discrimination. The trial
court reserved its decision on the motion until the conclusion of trial. The defendants renewed their claim in
their posttrial motion for a directed verdict. The trial
court denied that motion.
With this background in mind, we first set forth our
standard of review. ‘‘The standards for appellate review
of a directed verdict are well settled. Directed verdicts
are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally
have reached any other conclusion. . . . In reviewing
the trial court’s decision to direct a verdict in favor of
a defendant we must consider the evidence in the light
most favorable to the plaintiff. . . . Although it is the
jury’s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not
resort to mere conjecture and speculation. . . . A
directed verdict is justified if . . . the evidence is so
weak that it would be proper for the court to set aside
a verdict rendered for the other party.’’ (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn.
487, 497–98, 853 A.2d 460 (2004).
We next turn to the law governing claims of racial
discrimination in violation of 42 U.S.C. §§ 1981 and
1983. To prevail on her claim pursuant to 42 U.S.C.
§ 1983, the plaintiff must establish that the defendants
intentionally discriminated against her. Bennett v.
Roberts, 295 F.3d 687, 699 (7th Cir. 2002). ‘‘When a
plaintiff claims disparate treatment under a facially neutral employment policy, this court employs the burdenshifting 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 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. Id., 802–804.’’ Craine v. Trinity
College, 259 Conn. 625, 636–37, 791 A.2d 518 (2002).
The McDonnell Douglas Corp. burden-shifting analysis
is applicable to claims brought pursuant to 42 U.S.C.
§§ 1981 and 1983. See Lockridge v. Board of Trustees
of the University of Arkansas, 315 F.3d 1005, 1009–10
(8th Cir. 2003).
‘‘The burden of establishing a prima facie case [of
discrimination] 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.’’ (Citation omitted.) Craine v. Trinity
College, supra, 259 Conn. 638. To establish a prima facie
case of discrimination in the employment context, the
plaintiff must present evidence that: (1) she belongs to
a protected class; (2) she was subject to an adverse
employment action; and (3) the adverse action took
place under circumstances permitting an inference of
discrimination.34 See id. To establish the third prong, a
litigant may present circumstantial evidence from
which an inference may be drawn that similarly situated
individuals were treated more favorably than she was.
Id., 639; see also Paylan v. St. Mary’s Hospital Corp.,
118 Conn. App. 258, 266, 983 A.2d 56 (2009). To be
probative, this evidence must establish that the plaintiff
and the individuals to whom she seeks to compare
herself were ‘‘similarly situated in all material respects
. . . .’’ (Emphasis added; internal quotation marks
omitted.) Paylan v. St. Mary’s Hospital Corp., supra,
269; see also Shumway v. United Parcel Service, Inc.,
118 F.3d 60, 64 (2d Cir. 1997). ‘‘[A]n employee offered
for comparison will be deemed to be similarly situated
in all material respects if (1) . . . the plaintiff and those
he maintains were similarly situated were subject to
the same workplace standards and (2) . . . the conduct for which the employer imposed discipline was of
comparable seriousness. Graham v. Long Island Rail
Road, [230 F.3d 34, 40 (2d Cir. 2000)].’’ (Internal quotation marks omitted.) Paylan v. St. Mary’s Hospital
Corp., supra, 269.
‘‘Upon the defendant’s articulation of . . . a non-discriminatory reason for the employment action, the presumption of discrimination arising with the
establishment of the prima facie case drops from the
picture. See [St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 510–11, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)];
Fisher [v. Vassar College, 114 F.3d 1332, 1336 (2d Cir.
1997)].’’ Weinstock v. Columbia University, 224 F.3d
33, 42 (2d Cir. 2000), cert. denied, 540 U.S. 811, 124 S.
Ct. 53, 157 L. Ed. 2d 24 (2003). If the jury disbelieves
the nondiscriminatory reason proffered by the
employer, the burden is then on the plaintiff to prove
by a preponderance of the evidence that the real reason
for the disparate treatment was discrimination on the
basis of membership in the protected class. St. Mary’s
Honor Center v. Hicks, supra, 519 (‘‘[i]t is not enough
. . . to disbelieve the employer; the factfinder must
believe the plaintiff’s explanation of intentional discrimination’’ [emphasis in original]); id., 515 (‘‘a reason cannot be proved to be ‘a pretext for discrimination’
unless it is shown both that the reason was false, and
that discrimination was the real reason’’ [emphasis in
original]); see also Weinstock v. Columbia University,
supra, 42 (if jury disbelieves employer’s explanation for
disparate treatment, ‘‘the question becomes whether
the evidence, taken as a whole, supports a sufficient
rational inference of discrimination’’); Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 512, 832 A.2d 660 (2003) (when
employee established prima facie case of discrimination
and fact finder reasonably disbelieved reasons for disparate treatment proffered by employer, sole remaining
issue was ‘‘whether the [fact finder] reasonably could
have inferred from the evidence before it that the
[employer] intentionally discriminated against [the
employee] on the basis of race or color’’).
When the employer has rebutted the presumption of
discrimination arising from the plaintiff’s prima facie
case by providing reasons for the disparate treatment,
‘‘[t]he factfinder’s disbelief of the reasons put forward
by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with
the elements of the prima facie case, suffice to [satisfy
the plaintiff’s ultimate burden of proving] intentional
discrimination.’’ (Emphasis added.) St. Mary’s Honor
Center v. Hicks, supra, 509 U.S. 511. ‘‘Certainly [however] there will be instances where, although the plaintiff has established a prima facie case and set forth
sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the
action was discriminatory. For instance, an employer
would be entitled to judgment as a matter of law if the
record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the
plaintiff created only a weak issue of fact as to whether
the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no
discrimination had occurred. See Aka v. Washington
Hospital Center, 156 F.3d [1284, 1291–92 (D.C. Cir.
1998) (en banc)]; see also Fisher v. Vassar College,
[supra, 114 F.3d 1338] ([i]f the circumstances show that
the defendant gave the false explanation to conceal
something other than discrimination, the inference of
discrimination will be weak or nonexistent).’’ (Internal
quotation marks omitted.) Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S. Ct. 2097,
147 L. Ed. 2d 105 (2000).
In summary, when a plaintiff attempts to establish
racial discrimination through the use of circumstantial
evidence, the plaintiff must first present some evidence
from which an inference may be drawn that other similarly situated individuals not in the protected class were
treated more favorably than the plaintiff. See Craine
v. Trinity College, supra, 259 Conn. 639. If the defendant
then articulates a nondiscriminatory reason for the disparate treatment, the presumption of discrimination
arising from the prima facie case ‘‘drops from the picture.’’ Weinstock v. Columbia University, supra, 224
F.3d 42. The burden will then be on the plaintiff to
prove by a preponderance of the evidence that the
employment action was discriminatory. Id. Finally,
although the evidence that a plaintiff presented in support of her prima facie case may be sufficient to satisfy
her ultimate burden of proof, that will not necessarily
be the case. Reeves v. Sanderson Plumbing Products,
Inc., supra, 530 U.S. 148; see also Craine v. Trinity
College, supra, 638 (‘‘[t]he 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’’).
This court previously has recognized that ‘‘[s]tatistical evidence in a disparate treatment case, in and of
itself, rarely suffices to rebut an employer’s legitimate,
nondiscriminatory rationale for its [adverse employ-
ment] decision . . . . This is because a[n] [employer’s]
overall employment statistics will, in at least many
cases, have little direct bearing on the specific intentions of the employer . . . . Without an indication of
a connection between the statistics, the practices of
the employer, and the employee’s case, statistics alone
are likely to be inadequate to show that the employer’s
decision . . . was impermissibly based on [a protected
trait].’’35 (Internal quotation marks omitted.) Board of
Education v. Commission on Human Rights & Opportunities, supra, 266 Conn. 516. Standing alone, statistical evidence is sufficient to establish discriminatory
intent in individual disparate treatment actions only
when it shows a ‘‘stark pattern of discrimination . . . .’’
(Internal quotation marks omitted.) Aragon v. Republic
Silver State Disposal, Inc., 292 F.3d 654, 663 (9th Cir.
2002); id. (‘‘statistics must show a stark pattern of discrimination unexplainable on grounds other than [discrimination on the basis of membership in the protected
class]’’ [internal quotation marks omitted]); see also
Ottaviani v. State University of New York, 875 F.2d
365, 371 (2d Cir. 1989) (in individual disparate treatment
actions, ‘‘[w]here gross statistical disparities can be
shown, they alone may in a proper case constitute prima
facie proof of a pattern or practice of discrimination’’
[emphasis added; internal quotation marks omitted]),
cert. denied, 493 U.S. 1021, 110 S. Ct. 721, 107 L. Ed.
2d 740 (1990); Chesna v. United States Dept. of Defense,
850 F. Sup. 110, 117–18 (D. Conn. 1994) (to prove intentional discrimination in violation of equal protection
clause through circumstantial evidence of disparate
treatment, plaintiff must show stark pattern of discrimination); Life Technologies v. Superior Court, 197 Cal.
App. 4th 640, 650, 130 Cal. Rptr. 3d 80 (2011) (‘‘Statistical
evidence may . . . be utilized in a disparate treatment
case. However, because discriminatory intent must be
shown in such a case, statistical evidence must meet a
more exacting standard.’’); Smith College v. Massachusetts Commission Against Discrimination, 376 Mass.
221, 228 n.9, 380 N.E.2d 121 (1978) (in individual disparate treatment action, ‘‘gross statistical disparities alone
may constitute prima facie proof of a practice of discrimination’’ [emphasis added]).36
With these principles in mind, we turn to the defendants’ claim in the present case that the plaintiff failed
to establish that they had discriminated against her on
the basis of her race. The plaintiff contends that the
evidence established that the defendants had treated
her differently than other similarly situated school district employees. Specifically, she claims that, unlike six
white employees who were accused of abusing students,37 she was not given specific information about
the allegations against her or provided with an opportunity to respond to the allegations before she was placed
on administrative leave.
The defendants contend that, to the contrary, because
the other employees who had been accused of abusing
students were not similar to the plaintiff in all material
respects, the plaintiff has not established a prima facie
case that the defendants discriminated against her on
the basis of her race. Specifically, they point out that
the plaintiff was a principal; she was accused of sexually
abusing a young student; she was accused by her assistant, who was a trained mandated reporter; and she
was disciplined by Ramos. In contrast, V.L. and T.B.
were teachers, and they, along with L.R., had been
accused of physical and verbal abuse, not sexual abuse;
they had been accused six years earlier than the plaintiff; they had not been disciplined by Ramos;38 and the
initial accusations against them had not been made by
a trained mandated reporter, but by students and, in
the case of T.B., a student and a parent. With respect
to the two white teachers who the plaintiff had been
involved in investigating, and the principal, A.E., the
defendants contend that the plaintiff failed to present
sufficient information about them to provide a meaningful comparison. The defendants further claim that A.C.
was the only individual who was similarly situated to
the plaintiff because he was a principal, he had been
accused of sexual abuse, he had been disciplined by
Ramos, and he was treated the same as the plaintiff. 39 In
addition, the defendants claim that, even if the plaintiff
established a prima facie case that she had been treated
differently than other similarly situated employees, the
facts that a mandated reporter had accused the plaintiff
and that the allegations of sexual abuse against her were
more serious than those against the other employees
justified their treatment of her. Finally, the defendants
claim that the plaintiff’s concession that ‘‘similarly situated non-black employees [were] treated in the same
manner as [the] plaintiff and other black employees
were treated more favorably’’ is fatal to her claim of
intentional discrimination.
We conclude that we need not decide whether the
plaintiff was similarly situated to the employees to
whom she compares herself because, even if we assume
that she was, she has not satisfied her ultimate burden
of proof.40 Specifically, we must conclude that the plaintiff’s circumstantial evidence that the defendants
treated seven white employees41 and four African-American employees42 more favorably than they treated her
when she was accused of abusing a student in 2005 is
insufficient as a matter of law to raise an inference of
intentional racial discrimination. Although ‘‘evidence
establishing the falsity of the legitimate, nondiscriminatory reasons advanced by the employer may be, in and
of itself, enough to support the trier of fact’s ultimate
finding of intentional discrimination’’ when the evidence of falsity is strong; (emphasis added) Board of
Education v. Commission on Human Rights & Opportunities, supra, 266 Conn. 511; see also id., 511–12 (commission reasonably could have concluded that
employer’s failure to comply fully with affirmative
action plan, weaknesses, contradictions, inconsistencies and implausibilities in employer’s explanations and
absence of any African-American employees in relevant
employment position, combined with employee’s prima
facie case, were sufficient to prove falsity of employer’s
explanation and to satisfy employee’s ultimate burden
of proof); ambiguous statistical evidence, standing
alone, is insufficient as a matter of law to support such a
finding. See id., 515–16 (employee’s statistical evidence
was ‘‘weak and perhaps meaningless when considered
in isolation’’); id., 516 (‘‘statistics alone are likely to be
inadequate to show that the employer’s decision . . .
was impermissibly based on [a protected trait]’’ [internal quotation marks omitted]). The evidence in the present case simply does not reveal any pattern of disparate
treatment on the basis of race, much less the ‘‘ ‘stark
pattern’ ’’ or ‘‘ ‘gross statistical disparities’ ’’ that are
required to prove such claims.43 Aragon v. Republic
Silver State Disposal, Inc., supra, 292 F.3d 663 (‘‘the
statistics must show a stark pattern of discrimination
unexplainable on grounds other than [discrimination
on the basis of membership in the protected class]’’
[internal quotation marks omitted]); Ottaviani v. State
University of New York, supra, 875 F.2d 371 (only
‘‘ ‘gross statistical disparities’ ’’ can support inference
of intentional discrimination); see also Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993)
(‘‘A plaintiff cannot establish a prima facie case of racial
discrimination by showing that . . . a coworker of
another race was treated more favorably than he,
though other coworkers of his race were treated more
favorably than other coworkers of other races. Such a
pattern, in which blacks sometimes do better than
whites and sometimes do worse, being random with
respect to race, is not evidence of racial discrimination.’’).44 Because the jury could not reasonably have
concluded on the basis of the circumstantial evidence
presented by the plaintiff that the defendants intentionally discriminated against her on the basis of her race,
we conclude that the trial court improperly denied the
defendants’ motion for a directed verdict on the plaintiff’s claim pursuant to 42 U.S.C. §§ 1981 and 1983.45
III
Finally, we address the defendants’ claim that the
trial court improperly denied their motion for a directed
verdict with respect to the plaintiff’s claim of intentional
infliction of severe emotional distress. We agree.
The following procedural history is relevant to our
resolution of this claim. At the conclusion of the plaintiff’s case, the defendants made an oral motion for a
directed verdict on the plaintiff’s claim of intentional
infliction of emotional distress on the ground that no
reasonable person could conclude that the defendants’
conduct was sufficiently extreme and outrageous to
meet the relevant legal standard. The trial court
reserved its decision on the motion until the conclusion
of trial. The defendants renewed their claim in their
posttrial motion for a directed verdict. The trial court
denied that motion.
We begin our analysis with the standard of review.
‘‘In order for the plaintiff to prevail in a case for liability
. . . [alleging intentional infliction of emotional distress], four elements must be established. It must be
shown: (1) that the actor intended to inflict emotional
distress or that he knew or should have known that
emotional distress was the likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3)
that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a
defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a
question for the court to determine. . . . Only where
reasonable minds disagree does it become an issue for
the jury. . . .
‘‘Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually
tolerated by decent society . . . . Liability has been
found only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation
of the facts to an average member of the community
would arouse his resentment against the actor, and lead
him to exclaim, Outrageous! . . . Conduct on the part
of the defendant that is merely insulting or displays bad
manners or results in hurt feelings is insufficient to
form the basis for an action based upon intentional
infliction of emotional distress.’’ (Citations omitted;
internal quotation marks omitted.) Appleton v. Board of
Education, 254 Conn. 205, 210–11, 757 A.2d 1059 (2000).
We conclude that no reasonable juror could find that
the defendants’ conduct in the present case met this
high threshold. With respect to the defendants’ conduct
in 1998 and 1999, when Kelly told the plaintiff that her
career was in jeopardy during a performance evaluation
and Shamas transferred the plaintiff to Newfield School,
no juror could conclude that the conduct was ‘‘beyond
all possible bounds of decency . . . atrocious, and
utterly intolerable in a civilized community.’’ (Internal
quotation marks omitted.) Id., 211; see id., 210–11 (trial
court properly granted defendant’s motion for summary
judgment on plaintiff’s claim for intentional infliction
of emotional distress when defendants made condescending comments about plaintiff in front of colleagues, questioned plaintiff’s vision and ability to read,
informed plaintiff’s daughter that she was acting differently and should take time off, asked police to escort
plaintiff from school, required plaintiff to subject herself to psychiatric testing, forced plaintiff to take leave
of absence, suspended plaintiff, and forced plaintiff to
resign); Tracy v. New Milford Public Schools, 101 Conn.
App. 560, 567–70, 922 A.2d 280 (trial court properly
granted motion to strike plaintiff’s claim for intentional
infliction of emotional distress when plaintiff claimed
that defendants conspired to engage in pattern of
harassment including denial of position, initiated disciplinary actions without proper investigation, and
defamed and intimidated plaintiff), cert. denied, 284
Conn. 910, 931 A.2d 935 (2007). Indeed, there is no
evidence that Kelly or Shamas subjected the plaintiff
to any unduly humiliating, embarrassing or denigrating
language or conduct, intentionally or otherwise. Rather,
they subjected her to actions that individuals in the
workplace reasonably should expect. See Perodeau v.
Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002) (‘‘individuals [in the workplace] reasonably should expect to
be subject to . . . performance evaluations, both formal and informal; [and] decisions related to such evaluations, such as those involving transfer, demotion,
promotion and compensation’’ and ‘‘reasonably should
expect to experience some level of emotional distress,
even significant emotional distress, as a result’’). Moreover, even if we were to assume that the defendants
were wrongfully motivated in subjecting the plaintiff
to this conduct, wrongful motivation by itself does not
meet the standard for intentional infliction of severe
emotional distress; rather, ‘‘it is the act itself which
must be outrageous.’’ (Internal quotation marks omitted.) Aquavia v. Goggin, 208 F. Sup. 2d 225, 237 (D.
Conn. 2002); see Parsons v. United Technologies Corp.,
243 Conn. 66, 89, 700 A.2d 655 (1997) (‘‘[t]he mere act
of firing an employee, even if wrongfully motivated,
does not transgress the bounds of socially tolerable
behavior’’ [internal quotation marks omitted]). Finally,
the only evidence of severe emotional distress that the
plaintiff presented with respect to this conduct is that
she became frightened and choked up upon being told
that her career might be in jeopardy. There was no
evidence that the plaintiff was in distress for an
extended period or that she sought medical treatment.
No reasonable juror could conclude that this constituted severe emotional distress.
With respect to the defendants’ conduct in 2005, when
they placed her on paid administrative leave without
first providing her with an opportunity to respond to
the abuse allegations, the plaintiff contends that the
jury reasonably could have found that, ‘‘[b]ecause neither the plaintiff nor the alleged victim was questioned
by the defendants and [the department] found no truth
to the allegations, the jury could have and reasonably
did conclude that the entire matter was intentionally
fabricated and that the defendants were the perpetrators.’’ (Emphasis in original.) The plaintiff made no
claim and presented no evidence at trial, however, that
Santacapita had fabricated the allegations against her
or that the defendants had to have known immediately
that the allegations were either false or grossly exaggerated. See Tracy v. New Milford Public Schools, supra,
101 Conn. App. 568 (trial court properly granted motion
to strike claim for intentional infliction of emotional
distress on ground that ‘‘[s]ubjecting an employee to
discipline without proper investigation [was] a far cry
from fabricating disciplinary actions’’ [internal quotation marks omitted]). Indeed, although the plaintiff testified that the department ultimately found that the
allegations against her were ‘‘unsubstantiated,’’ the
record does not reveal whether the department found
that the plaintiff had never engaged in the alleged conduct or, instead, that the conduct did not rise to the
level of abuse. The record does reveal, however, that
the department had found that the plaintiff’s manner
of physical contact with students was one of several
‘‘areas of concern . . . .’’ See footnote 12 of this
opinion.
Moreover, Ramos, who made the decision to place
the plaintiff on administrative leave, testified that he
was not aware of the plaintiff’s history in the school
system and, therefore, had no motive to retaliate against
her. There was no contrary evidence that Ramos harbored personal animus toward the plaintiff. Even if we
were to assume that Ramos made an error in judgment
as to the truth or seriousness of the allegations, or in
the manner in which he responded to them, and that
the plaintiff was subject to extreme embarrassment as
the result of his conduct, as a matter of law, mere errors
in judgment do not rise to the level of extreme and
outrageous conduct. See Appleton v. Board of Education, supra, 254 Conn. 210–11 (trial court properly
granted defendant’s motion for summary judgment on
plaintiff’s claim for intentional infliction of emotional
distress when defendants forced plaintiff to take leave
of absence, suspended plaintiff, and forced plaintiff to
resign); Tracy v. New Milford Public Schools, supra,
101 Conn. App. 568–69 (initiating disciplinary action
without conducting investigation did not constitute
extreme and outrageous conduct). We therefore conclude that the trial court improperly denied the defendants’ motion for a directed verdict on the plaintiff’s
claim for intentional infliction of extreme emotional
distress.
The judgment is reversed and the case is remanded
with direction to grant the defendants’ motion for a
directed verdict, to set aside the verdict and for judgment notwithstanding the verdict, and to render judgment thereon for the defendants.
In this opinion NORCOTT, ZARELLA, McLACHLAN,
EVELEIGH and HARPER, Js., concurred.
1
Although the caption of the present case refers to the City of Bridgeport
et al., the real party in interest is the board. Also named as defendants at
trial were the Connecticut Education Association, Jack Reh, the Bridgeport
Education Association, Mary Loftus Levine, the department of children and
families and Maria Melendez. Because these defendants are not involved in
the present appeal, references to the defendants are to the board, Kelly
and Shamas.
2
The first amendment to the United States constitution provides: ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.’’
3
The constitution of Connecticut, article first, § 3, provides: ‘‘The exercise
and enjoyment of religious profession and worship, without discrimination,
shall forever be free to all persons in the state; provided, that the right
hereby declared and established, shall not be so construed as to excuse
acts of licentiousness, or to justify practices inconsistent with the peace
and safety of the state.’’
The constitution of Connecticut, article first, § 4, provides: ‘‘Every citizen
may freely speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that liberty.’’
The constitution of Connecticut, article first, § 14, provides: ‘‘The citizens
have a right, in a peaceable manner, to assemble for their common good,
and to apply to those invested with the powers of government, for redress of
grievances, or other proper purposes, by petition, address or remonstrance.’’
4
General Statutes § 31-51q provides in relevant part: ‘‘Any employer,
including the state and any instrumentality or political subdivision thereof,
who subjects any employee to discipline or discharge on account of the
exercise by such employee of rights guaranteed by the first amendment to
the United States Constitution or section 3, 4 or 14 of article first of the
Constitution of the state, provided such activity does not substantially or
materially interfere with the employee’s bona fide job performance or the
working relationship between the employee and the employer, shall be liable
to such employee for damages caused by such discipline or discharge,
including punitive damages, and for reasonable attorney’s fees as part of
the costs of any such action for damages. . . .’’
5
General Statutes § 17a-101e provides in relevant part: ‘‘(a) No employer
shall discharge, or in any manner discriminate or retaliate against, any
employee who in good faith makes a report pursuant to sections 17a-101a
to 17a-101d, inclusive, and 17a-103, testifies or is about to testify in any
proceeding involving child abuse or neglect. The Attorney General may bring
an action in Superior Court against an employer who violates this subsection.
The court may assess a civil penalty of not more than two thousand five
hundred dollars and may order such other equitable relief as the court
deems appropriate. . . .’’
6
Section 1981 (a) of title 42 of the United States Code provides in relevant
part: ‘‘All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoyed by
white citizens . . . .’’
7
Section 1983 of title 42 of the United States Code provides in relevant
part: ‘‘Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .’’
8
The defendants appealed to the Appellate Court and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
9
Accordingly, we need not reach the defendants’ other claims or the
plaintiff’s claims on cross appeal.
10
The plaintiff testified at trial that a small group of disgruntled teachers
had resisted her efforts to improve the academic situation at Beardsley
School. These efforts included prohibiting teachers from showing movies
or videos in the classroom unless they were related to the subject being
taught, visiting each classroom every day to ensure that the teachers were
following lesson plans, prohibiting teachers from eating snacks in the classroom and being an advocate for the children.
11
Kelly testified that Carroll had informed him about the accusations
against the plaintiff and he, in turn, had informed Ramos. Kelly asked to
be recused from any investigatory process because of his involvement in
the present litigation, which was initiated in 2000.
12
John Di Donato, the assistant superintendent for youth development
for the school district, wrote a letter to the plaintiff on February 28, 2006,
indicating that three reports had been filed with the department concerning
the plaintiff’s conduct with students, and that he had met with the plaintiff
to discuss the reports. Di Donato stated that the department ‘‘could not
substantiate the allegations contained in the . . . reports. However, I noted
[at the meeting with the plaintiff] that their findings did include a number
of areas of concern,’’ including the plaintiff’s physical contact with students.
Di Donato stated that he had advised the plaintiff ‘‘to limit [her] physical
contact with students,’’ and had warned her that failure to comply with this
instruction could result in further disciplinary action, including separation
from employment.
13
Specifically, the plaintiff claimed that Kelly had interfered with her
efforts to evaluate and discipline teachers and staff members at Beardsley
School, had denied her requests to participate in programs for professional
development and her requests for adequate staffing and supplies, had subjected her to disciplinary measures to which other principals had not been
subjected, had subjected her to threats of official discipline by the board’s
attorneys, had demoted her unjustifiably and had unfairly evaluated her
work performance.
14
In support of this argument, the defendants relied on Pagani v. Board
of Education, United States District Court, Docket No. 3:05-CV-01115 JCH
(D. Conn. December 19, 2006). In that case, the District Court held that,
under Garcetti, the plaintiff’s conduct in reporting the abusive conduct of
a fellow teacher to the department was undertaken as a teacher performing
an official duty and, therefore, was not protected under the first amendment.
Accordingly, the court concluded that the plaintiff could not prevail in his
retaliation claim pursuant to federal law.
15
In support of this argument, the plaintiff relied on the trial court’s
decision in Schumann v. Dianon Systems, Inc., Superior Court, judicial
district of Fairfield, Docket No. CV-05-5000747-S (September 24, 2007). The
court in Schumann noted that there was a split among the decisions of the
Superior Court as to whether Garcetti applied to speech made by a private
employee, but concluded that it need not decide that question in order to
rule on the defendant’s motion for summary judgment because there was
a genuine issue of material fact as to whether the plaintiff’s statements had
been made as part of his official job duties. See also St. Fleur v. R.C. Bigelow,
Inc., Superior Court, judicial district of Fairfield, Docket No. CV-06-5004575S (April 16, 2007) (same). Thus, neither Schumann nor St. Fleur supports
the plaintiff’s argument to the trial court in the present case that Garcetti
does not apply to claims made pursuant to § 31-51q that implicate the exercise of first amendment rights. Indeed, as the defendants point out, there
is no authority to support that argument and the plaintiff has not renewed
it on appeal.
The trial court in Schumann ultimately concluded that Garcetti does not
apply to private employers and, after a jury trial, rendered judgment for the
plaintiff. In Schumann v. Dianon Systems, Inc., 304 Conn.
,
A.2d
(2012), which was released on the same date as this opinion, this court
concluded that Garcetti does apply to claims against private employers
pursuant to § 31-51q and reversed the judgment of the trial court.
16
Thereafter, the defendants filed a motion for articulation of, among
other things, the trial court’s reasons for rejecting their claim pursuant to
Garcetti, which the trial court denied. The defendants then filed in this
court a motion for review of the trial court’s denial of their motion for
articulation, which this court denied in relevant part.
17
After this appeal and cross appeal were filed, we granted the application
of the Connecticut Employment Lawyers Association to file an amicus curiae
brief in support of the plaintiff’s position in her claim pursuant to § 31-51q.
18
The trial court submitted two interrogatories to the jury in connection
with the plaintiff’s claims of retaliation. The first interrogatory asked: ‘‘Has
[the plaintiff] proven by a preponderance of the evidence that [the defendants] retaliated against her for filing reports of child abuse with [the department] taken against her prior to 2005?’’ The second interrogatory asked:
‘‘Has [the plaintiff] proven by a preponderance of the evidence that [the
defendants] retaliated against her when she was placed on administrative
leave on November 29, 2005, allegedly for student abuse?’’ The interrogatories did not specify the statute under which the claims of retaliation were
being brought. The plaintiff claims on appeal that the jury reasonably could
have answered ‘‘yes’’ to both questions pursuant to either § 31-51q or § 17a101e. Accordingly, we address the defendants’ claims relating to both statutes together.
19
The plaintiff contends that this claim was not preserved for review
because, even though the defendants cited Garcetti in both their oral motion
for a directed verdict and in their posttrial motion for a directed verdict,
their argument was not that a public employee’s speech pursuant to official
job duties is not protected by the first amendment per se, but that such
speech is not a matter of public concern. We conclude that the defendants
adequately put the plaintiff and the trial court on notice of the nature of
their claim pursuant to Garcetti v. Ceballos, supra, 547 U.S. 421, by arguing
that ‘‘ ‘when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for [f]irst [a]mendment
purposes . . . .’ ’’ Moreover, the holding of Garcetti that a public employee’s
speech pursuant to official job duties is not constitutionally protected is
unmistakably clear upon a simple reading of that case.
The trial court instructed the jury that, in order to find that the plaintiff’s
speech was constitutionally protected, it must find that ‘‘her activity constituted a matter of public concern.’’ In addition, the court instructed the jury
that, pursuant to § 31-51q, it must find that the plaintiff’s ‘‘activity did not
substantially or materially interfere with her bona fide job performance or
the working relationship between herself and the defendants.’’ Although the
basis for the court’s ‘‘public concern’’ instruction is not entirely clear, the
United States Supreme Court, before it decided Garcetti, held that speech
by a public employee is constitutionally protected only if the speech is on
a matter of public concern and the employee’s free speech interest is not
outweighed by the interest of the employer ‘‘in promoting the efficiency of
the public services it performs through its employees.’’ Connick v. Myers,
461 U.S. 138, 142, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); see also DeMartino
v. Richens, 263 Conn. 639, 664–67, 822 A.2d 205 (2003). We emphasize that
we express no opinion here as to whether the court in Garcetti modified
the Connick standard or whether it simply applied its precedent for the
first time to speech by a public employee pursuant to his or her job duties.
Although the defendants in the present case did not object to the jury
instruction after it was given, it was implicit in their motion for a directed
verdict that the jury should not receive any instruction on the plaintiff’s
claim pursuant to § 31-51q because the claim was barred as a matter of law
under Garcetti.
20
The amicus argues that, when an employer has violated General Statutes
§ 31-51m, which prohibits employers from retaliating against their employees
for whistle-blowing activities, the violation can form the basis of a claim
pursuant to § 31-51q, even if the employee was not exercising constitutional
speech rights. We disagree. The remedy provided by § 31-51q plainly and
unambiguously is limited to cases in which an employee has disciplined or
discharged an employee ‘‘on account of the exercise by such employee of
rights guaranteed by the first amendment to the United States Constitution
or section 3, 4 or 14 of article first of the Constitution of the state . . . .’’
In any event, the plaintiff has not claimed that the defendants violated
§ 31-51m.
21
Although this principle is one of appellate review, we see no reason
why the trial court should not also be entitled to assume that the state
constitution and the federal constitution are coextensive in the absence of
any claim to the contrary by the party raising the constitutional issue.
22
The plaintiff in the present case did not file a statement of alternate
grounds on which the judgment could be affirmed in compliance with Practice Book § 63-4 (a) (1). This court generally has reviewed alternate grounds
for affirmance even though the appellee has not complied with the requirement to identify such claims in a preliminary statement, when doing so
would not prejudice the appellant. See Connecticut Ins. Guaranty Assn.
v. Fontaine, 278 Conn. 779, 784 n.4, 900 A.2d 18 (2006) (when alternate
ground for affirmance was raised in trial court, failure to comply with
Practice Book § 63-4 [a] [1] did not render claim unreviewable when all
parties briefed claim); Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694,
702–703, 694 A.2d 788 (1997) (reviewing alternate grounds for affirmance
that were raised in trial court even though trial court failed to rule on
claims); Chotkowski v. State, 240 Conn. 246, 256 and n.17, 690 A.2d 368
(1997) (reviewing alternate grounds for affirmance that were not included
in preliminary statement of issues when claims were raised in trial court);
cf. State v. Cruz, 269 Conn. 97, 98–99, 848 A.2d 445 (2004) (reviewing state’s
alternate ground for affirming Appellate Court’s judgment, even though
state had not expressly raised as alternate ground for affirmance, without
addressing question of whether claim had been raised in Appellate Court);
Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 423 n.19, 797 A.2d
494 (2002) (alternate grounds for affirmance that plaintiff had not expressly
characterized as such were reviewable when claims had been fully briefed;
court did not address question of whether claims had been raised in trial
court); Stepney Pond Estates, Ltd. v. Monroe, supra, 420 and n.15 (at least
some alternate grounds for affirmance had been raised in trial court); Culver
v. Culver, 127 Conn. App. 236, 252–53, 17 A.3d 1048 (reviewing alternate
grounds for affirmance that had not been expressly characterized as such
without addressing question of whether claims had been raised in trial
court), cert. denied, 301 Conn. 929, 23 A.3d 724 (2011); Mannweiler v.
LaFlamme, 65 Conn. App. 26, 34 n.6, 781 A.2d 497 (2001) (same). We have
reviewed alternate grounds for affirmance that were not raised in the trial
court, however, only in exceptional cases. See footnote 23 of this opinion.
23
See, e.g., Vine v. Zoning Board of Appeals, 281 Conn. 553, 568–70, 916
A.2d 5 (2007) (addressing unpreserved alternate ground for affirmance when
failure to do so would have been unfair because appellant relied on factual
basis for alternate ground for affirmance in support of her claim on appeal,
claim involved pure question of law, there was no possibility that court
would be usurping discretion of decision maker, record was adequate for
review and, because issue had been fully briefed, there was no possibility
of prejudice to parties); State v. Osuch, 124 Conn. App. 572, 580, 5 A.3d 976
(reviewing alternate ground for affirmance that could not have been raised
in trial court because issue did not arise until after judgment), cert. denied,
299 Conn. 918, 10 A.3d 1052 (2010); see also Gerardi v. Bridgeport, 294
Conn. 461, 466–67, 985 A.2d 328 (2010) (reviewing alternate ground for
affirmance that was not raised in trial court when claim implicated trial
court’s subject matter jurisdiction, which may be raised at any time).
This court also has addressed unpreserved claims raised as alternate
grounds for affirmance in criminal cases under State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). See, e.g., State v. Singleton, 292 Conn.
734, 759, 974 A.2d 679 (2009). Although Golding had been applied in civil
cases; see Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 32, 12 A.3d
865 (2011); the plaintiff in the present case has not requested Golding
review. More fundamentally, although the plaintiff’s claim implicates her
constitutional speech rights because her employer is public, she has not
raised a claim that the defendants violated her constitutional rights, but
instead has raised a claim implicating her statutory rights under § 31-51q.
Accordingly, Golding does not apply. See State v. Golding, supra, 239–40
(to be reviewable under Golding, claim must be of constitutional magnitude).
24
See footnote 23 of this opinion.
25
After oral argument before this court, we ordered the parties to submit
supplemental briefs on the following questions: (1) Under the facts of this
case are the defendants prejudiced if this court considers the unpreserved
issue of whether the plaintiff’s speech was protected under the state constitution?; and (2) When an appellee has raised, for the first time on appeal, an
alternative ground for affirmance, who has the burden of demonstrating
prejudice or lack thereof? Because the plaintiff is asking for an exception
to the general rule that we will not review claims that were not raised in
the trial court, we conclude that the burden is on the plaintiff to prove that
the defendants will not be prejudiced by our review of the claim. For the
reasons stated in this opinion, we conclude that the plaintiff has not met
that burden.
The plaintiff contends, however, that ‘‘[i]t was never [her] obligation . . .
to raise in the trial court or in this appeal as an alternate ground for
affirmance the issue of whether her speech was protected because the issue,
as raised by the defendants, clearly is subsumed within and is completely
intertwined with [§] 31-51q . . . .’’ The plaintiff also makes the remarkable
claim that she would be prejudiced if this court were to consider the defendants’ arguments against her unpreserved claim that the state constitution
is broader than the federal constitution in this context because the defendants did not claim at trial that her claim pursuant to § 31-51q is barred by
the state constitution. The plaintiff fails to recognize that the defendants
were entitled to assume that the scope of the state constitution is coextensive
with the scope of the federal constitution in the absence of any claim to
the contrary. State v. Gore, supra, 288 Conn. 776 n.7.
26
Pursuant to the trial court’s instruction, the jury could render a verdict
for the plaintiff if it found that: (1) the plaintiff’s speech was constitutionally
protected because it constituted a matter of public concern; and (2) pursuant
to § 31-51q, the plaintiff’s ‘‘activity did not substantially or materially interfere
with her bona fide job performance or the working relationship between
herself and the defendants.’’ See footnote 19 of this opinion. If a jury were
instructed pursuant to Connick, however, it could find that the plaintiff’s
speech was not constitutionally protected in the first instance if it found
that, although her speech constituted a matter of public concern, her free
speech interest was outweighed by the defendants’ interest in efficiently
operating the school system. For example, the jury might find that, although
the defendants had transferred the plaintiff at least in part because of her
reports of abuse, they also did so because some teachers had become hostile
to the plaintiff, thereby impairing her effectiveness in that particular school.
In that case, the jury could not render a verdict for the plaintiff on her
claims pursuant to § 31-51q, even if the plaintiff’s conduct did not substantially interfere with her job performance or with her working relationship
with the defendants. In addition, this court could conclude that, although
Garcetti does not apply to claims under the state constitution, the Connick
standard is too liberal as applied to speech pursuant to official job duties
in light of the concerns raised in Garcetti. Cf. Wickwire v. State, 725 P.2d 695,
703 (Alaska 1986) (Connick balancing test applies under state constitution,
although public concern criteria may be broader under state constitution
than federal constitution; court did not consider whether employee’s speech
was pursuant to official duties); Kaye v. Board of Trustees of the San Diego
County Public Law Library, 179 Cal. App. 4th 48, 59, 101 Cal. Rptr. 3d
456 (2009) (Garcetti applies under state constitution); Kemp v. Board of
Agriculture, 790 P.2d 870, 872–73 (Colo. App. 1989) (Connick balancing test
applies under state constitution; court did not consider whether employee’s
speech was pursuant to official duties), aff’d, 803 P.2d 498 (Colo. 1990),
cert. denied, 501 U.S. 1205, 111 S. Ct. 2798, 115 L. Ed. 2d 972 (1991); Acevedo
v. Muskogee, 897 P.2d 256, 265 (Okla. 1995) (Opala, J., concurring) (arguing
that, under Oklahoma constitution, before government may dismiss
employee for speech, ‘‘government must demonstrate some overriding
interest of vital importance in maintaining its efficiency, which outweighs
any benefit to be derived from free speech’’ without considering whether
employee’s speech was pursuant to official duties [emphasis in original]);
see also Edwards v. Dept. of Transportation, 66 Wn. App. 552, 559 n.3, 832
P.2d 1332 (1992) (state balancing test that incorporated Connick provided
adequate protection under state constitution; court did not consider whether
employee’s speech was pursuant to official duties).
We recognize that the defendants did not claim at trial or on appeal that
the jury instructions were defective not only because the plaintiff’s claim
pursuant to § 31-51q was barred under Garcetti, but also because the instructions incorrectly stated the standard that predated Garcetti. As we have
indicated, however, the defendants were not required to raise every possible
defense to the plaintiff’s § 31-51q claim if they believed that their Garcetti
claim was dispositive. Because we agree that the defendants’ claim pursuant
to Garcetti is dispositive of the § 31-51q claim as it was actually litigated,
the defendants should prevail on appeal unless the plaintiff can show that
the defendants would not be prejudiced by an affirmance based on her
unpreserved state constitutional claim because the trial court gave a proper
jury instruction on that issue. Of course, if we had disagreed with the
defendants’ claim pursuant to Garcetti, any claim that the judgment of the
trial court should be reversed because the jury instructions were improper
for other reasons would be unpreserved.
27
The specific amount awarded to the plaintiff on her claim pursuant to
§ 31-51q is not clear from the record because when the trial court found
that the separate awards for noneconomic and punitive damages pursuant
to this claim and the discrimination claim were duplicative and reduced the
cumulative $1,000,000 award for both claims to $500,000, it did not allocate
the new award between the claims.
28
The defendants raised this claim in their oral motion for a directed
verdict and in their posttrial motion for a directed verdict.
29
In her fifth revised complaint, the plaintiff alleged that the defendants’
conduct toward her in 1998 through 2000 had been motivated by racial
discrimination. The jury interrogatories, however, allowed the jury to find
that the defendants had engaged in racial discrimination only with respect
to their response to the allegations of abuse against the plaintiff in 2005,
when they placed the plaintiff on administrative leave. In addition, the trial
court instructed the jury that ‘‘[t]he plaintiff claims that the defendants
discriminated against her by putting her on administrative leave . . . .’’ The
court did not refer to the defendants’ conduct in 1998 through 2000 in
connection with its instructions on the plaintiff’s claim of racial discrimination. Accordingly, the plaintiff has abandoned any claim that the defendants’
conduct toward her in 1998 through 2000 was motivated by racial discrimination. Moreover, the plaintiff has made no argument on appeal that the
defendants’ conduct toward her in 1998 through 2000 would support a
conclusion that they discriminated against her on the basis of her race in
2005, and she has pointed to no evidence that would support a finding
that the defendants’ conduct in 1998 through 2000 was motivated by racial
discrimination and not by some other reason, proper or improper. See Fisher
v. Vassar College, 114 F.3d 1332, 1338 (2d Cir. 1997) (‘‘[i]f the circumstances
show that the defendant gave the false explanation to conceal something
other than discrimination, the inference of discrimination will be weak
or nonexistent’’).
30
The plaintiff sought to present as evidence of this practice memoranda
memorializing the board’s investigatory efforts in seventeen cases of alleged
abuse of a student by a school district employee. The trial court concluded
that the memoranda were cumulative and that introducing them as evidence
potentially could violate the privacy of the subjects of the investigation. The
court allowed the plaintiff, however, to introduce one of the memoranda,
in a redacted form, and to inform the jury that the other sixteen cases had
been handled in a similar manner. The record does not reflect the races of
the teachers or students involved in these seventeen cases.
31
The plaintiff did not identify these two white female teachers by name.
32
Carroll did not identify this school principal by name.
33
Kelly testified that he became aware of the allegations against A.C. in
the fall of 2005, and that he placed him on administrative leave immediately.
Ramos testified that he became aware of the allegations against A.C. during
the fall of 2005, and that Kelly conducted a meeting at which A.C. was
placed on administrative leave. The plaintiff produced documentary evidence, however, showing that allegations of abuse had been made against
A.C. in July, 2004. The evidence also showed that A.C. was placed on administrative leave on June 3, 2005, after an investigation established that he had
violated the school district’s sexual harassment policy. In addition, the
evidence indicated that A.C. was assigned to the city of Bridgeport’s administrative offices during his leave. Ramos testified that he became school
superintendent on June 6, 2005. It is unclear from the record whether there
were two separate allegations of abuse against A.C. and two separate administrative leaves, or whether Kelly and Ramos were mistaken about the dates
that they had learned about the allegations and that A.C. had been placed
on leave.
34
In some employment contexts, such as claims involving hiring, promoting or granting tenure, the plaintiff must show that she was qualified to
hold her employment position. Craine v. Trinity College, supra, 259 Conn.
638. The test for establishing disparate treatment in employment cases is
flexible, however. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253,
1264 (11th Cir. 2010) (‘‘[t]he methods of presenting a prima facie case
[under McDonnell Douglas Corp.] are flexible and depend on the particular
situation’’). Because, in the present case, the question of whether the plaintiff
was qualified for her position is not relevant to the question of whether she
was subjected to harsher discipline than other employees on the basis of
her race, we conclude that it is not an element of her prima facie case.
35
See also Timmerman v. U. S. Bank, N.A., 483 F.3d 1106, 1114–15 (10th
Cir. 2007) (in individual disparate treatment actions, ‘‘[s]tatistics taken in
isolation are generally not probative of . . . discrimination . . . and statistical evidence on its own will rarely suffice to show pretext’’ [citation omitted; internal quotation marks omitted]); Bacon v. Honda of America Mfg.,
Inc., 370 F.3d 565, 575 (6th Cir. 2004) (evidence showing pattern or practice
of discrimination is not probative in individual disparate treatment action),
cert. denied, 543 U.S. 1151, 125 S. Ct. 1334, 161 L. Ed. 2d 115 (2005); Plair
v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 (7th Cir. 1997) (‘‘[s]tanding
virtually alone . . . statistics cannot establish a case of individual disparate
treatment’’ [internal quotation marks omitted]); LeBlanc v. Great American
Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) (‘‘statistical evidence in a disparate
treatment case, in and of itself, rarely suffices to rebut an employer’s legitimate, nondiscriminatory rationale for its decision to dismiss an individual
employee’’), cert. denied, 511 U.S. 1018, 114 S. Ct. 1398, 128 L. Ed. 2d 72
(1994); Walther v. Lone Star Gas Co., 977 F.2d 161, 162 (5th Cir. 1992) (in
individual disparate treatment case, ‘‘proof of pretext, hence of discriminatory intent, by statistics alone would be a challenging endeavor’’ [emphasis
in original]); Barnes v. GenCorp, Inc., 896 F.2d 1457, 1469 (6th Cir. 1990) (The
employer’s reasons for its treatment of the plaintiffs ‘‘cannot be rebutted by
reference to the statistics already presented [in support of the prima facie
case when] the statistics . . . do not tend to establish that [membership
in the protected class] played a factor in any particular decision. Unless
the plaintiffs can show that the defendants’ explanations are inherently
suspect or can present other direct or circumstantial evidence suggesting
that the proffered reasons are not true, then the defendants are entitled to
summary judgment.’’ [Emphasis in original.]), cert. denied, 498 U.S. 878, 111
S. Ct. 211, 112 L. Ed. 2d 171 (1990); Carmichael v. Birmingham Saw Works,
738 F.2d 1126, 1131 (11th Cir. 1984) (‘‘statistics alone cannot make a case
of individual disparate treatment’’); Hudson v. International Business
Machines Corp., 620 F.2d 351, 355 (2d Cir. 1980) (statistics, standing alone,
cannot prove discrimination in individual disparate treatment action), cert.
denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 611 (1980); Ficken v.
Clinton, 771 F. Sup. 2d 79, 85–86 (D.D.C. 2011) (in disparate treatment case,
summary judgment for defendant is ordinarily appropriate if plaintiff relies
solely on statistical evidence); Ivy v. Oxford Municipal Separate School
District, United States District Court, Docket No. 3:10CV024-A-A (N.D. Miss.
June 29, 2011) (‘‘while statistical evidence could be relevant [in individual
disparate treatment case], bare allegations and numbers alone without more
context provided are not sufficient’’); Reynolds v. Barrett, 741 F. Sup. 2d
416, 427 (W.D.N.Y. 2010) (‘‘[s]tatistical evidence can be used to bolster an
individual claim of disparate treatment, but [s]tatistics alone are insufficient
in a disparate-treatment claim because an individual plaintiff must prove
that he or she in particular has been discriminated against’’ [internal quotation marks omitted]); Booker v. Massachusetts Dept. of Public Health, 527
F. Sup. 2d 216, 227 (D. Mass. 2007) (‘‘[s]tatistical evidence is of marginal
assistance in a disparate treatment case because unless very powerful, it
reveals little of an individual plaintiff’s circumstances, particularly with
respect to co-workers with whom she seeks to compare herself’’), aff’d, 612
F.3d 34 (1st Cir. 2010); Simpson v. Leavitt, 437 F. Sup. 2d 95, 104 (D.D.C.
2006) (statistics, standing alone, cannot prove discrimination in individual
disparate treatment action); Bussey v. Phillips, 419 F. Sup. 2d 569, 583
(S.D.N.Y. 2006) (same); Byrnie v. Cromwell Public Schools, 73 F. Sup. 2d
204, 218 (D. Conn. 1999) (in individual disparate treatment case, ‘‘raw statistical data, in the absence of any effort to account for other causes of the
under-representation of [members of the protected class in the class of
persons employed by the defendant], does not support an inference of . . .
discrimination’’), rev’d in part on other grounds, 243 F.3d 93 (2d Cir. 2001).
36
In addition, a number of courts have held that, for purposes of proving
discriminatory intent in individual disparate treatment cases, ‘‘statistical
evidence derived from an extremely small universe . . . has little predictive
value and must be disregarded.’’ (Internal quotation marks omitted.) Aragon
v. Republic Silver State Disposal, Inc., supra, 292 F.3d 663; see also Mayor
v. Educational Equality League, 415 U.S. 605, 621, 94 S. Ct. 1323, 39 L. Ed.
2d 630 (1974) (in action for intentional discrimination in violation of equal
protection clause, use of straight percentage comparison was meaningless
because sample size was small); Pollis v. New School for Social Research,
132 F.3d 115, 121 (2d Cir. 1997) (in individual disparate treatment case,
‘‘[t]he smaller the sample, the greater the likelihood that an observed pattern
is attributable to other factors and accordingly the less persuasive the inference of discrimination to be drawn from it’’); Harper v. Trans World Airlines,
Inc., 525 F.2d 409, 412 (8th Cir. 1975) (statistical evidence derived from
extremely small sample must be disregarded). The reason is that, when the
number of comparators is small, ‘‘slight changes in the data can drastically
alter the result.’’ Aragon v. Republic Silver State Disposal, Inc., supra, 663.
37
The white employees to whom the plaintiff compares herself are: the
teacher who Smith had asked the plaintiff to vouch for while she was the
principal at Beardsley School; the teacher who the plaintiff had interviewed
while she was the principal at Roosevelt School; the principals L.R. and
A.E.; and the teachers V.L. and T.B.
38
See Shumway v. United Parcel Service, Inc., supra, 118 F.3d 64 (when
plaintiff was disciplined by different supervisor than comparator employees
who were treated less severely, and when plaintiff’s supervisor treated all
employees the same, plaintiff was not treated differently than others similarly
situated); see also Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th
Cir. 2000) (because different supervisors may exercise discretion differently,
employee is rarely similarly situated to employee who has different
supervisor).
39
As we have indicated, the evidence was ambiguous as to whether Ramos
had been involved in disciplining A.C. and whether A.C. was treated the
same as the plaintiff. See footnote 33 of this opinion. The plaintiff does not
dispute the defendants’ claim that they treated A.C. the same as the plaintiff,
however, and she expressly concedes that the defendants treated ‘‘similarly
situated nonblack employees . . . in the same manner as [the] plaintiff,’’
although she did not identify these employees.
40
Because the defendants articulated legitimate reasons for their treatment of the plaintiff, the burden was on her to establish by a preponderance
of the evidence that the defendants were motivated by discrimination even
if the jury disbelieved the defendants’ reasons. Weinstock v. Columbia University, supra, 224 F.3d 42; see also St. Mary’s Honor Center v. Hicks, supra,
509 U.S. 519 (‘‘[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination’’
[emphasis in original]).
41
These employees are the six employees to whom the plaintiff seeks to
compare herself; see footnote 37 of this opinion; and A.C., whom the jury
reasonably could have concluded was treated more favorably than the plaintiff. See footnote 33 of this opinion.
42
These employees are the male African-American principal who was
accused in 2006, the plaintiff herself when she was accused in 2008, S.A.
and J.A.
43
The plaintiff cites Graham v. Long Island Rail Road, supra, 230 F.3d
43–44, for the proposition that, when a plaintiff is relying solely on circumstantial statistical evidence to prove intentional discrimination, evidence
that the employer has treated some employees of the plaintiff’s race more
favorably than the plaintiff, and that it has treated some employees of a
different race the same, is not insufficient as a matter of law to prove that
the employer was motivated by racial discrimination. In Graham, the court
stated that, ‘‘[s]ince [the] principal focus [of Title VII of the Civil Rights Act
of 1964 (Title VII)] is on protecting individuals, rather than a protected class
as a whole, an employer may not escape liability for discriminating against
a given employee on the basis of race simply because it can prove it treated
other members of the employee’s group favorably. See Connecticut v. Teal,
457 U.S. 440, 453–55, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982); [Equal Employment Opportunity Commission v. Staten Island Savings Bank], 207 F.3d
144, 151 & n.5 (2d Cir. 2000). Only where overwhelming evidence exists
that an employer acted for reasons other than discrimination will the proof
submitted by the plaintiff as to similarly situated employees be negated. Cf.
Montana [v. First Federal Savings & Loan Assn. of Rochester, 869 F.2d
100, 106–107 (2d Cir. 1989)] . . . .’’ Graham v. Long Island Rail Road,
supra, 43–44. Because Graham is inconsistent with the well reasoned cases
holding that circumstantial statistical evidence is probative of intentional
discrimination only when it shows a stark pattern of discrimination or a
gross statistical disparity; see, e.g., Aragon v. Republic Silver State Disposal,
Inc., supra, 292 F.3d 663; Ottaviani v. State University of New York, supra,
371; and because the cases cited by the court in Graham do not support that
court’s conclusion; see Connecticut v. Teal, supra, 453–55 (when plaintiff has
established disparate impact claim under Title VII, employer cannot justify
discrimination against plaintiff by establishing that it has treated other members of protected group more favorably); Equal Employment Opportunity
Commission v. Staten Island Savings Bank, supra, 151 and n.5 (same);
Montana v. First Federal Savings & Loan Assn. of Rochester, supra, 107
(trial court properly granted summary judgment because evidence that
defendant retained six male employees but did not retain plaintiff, without
more, did not support finding of gender discrimination); we find Graham
unpersuasive.
44
Of course, if a plaintiff can point to direct evidence that the employer
discriminated against him or her on the basis of race, the plaintiff need not
establish any pattern of disparate treatment. We conclude only that, if a
plaintiff is relying solely on circumstantial statistical evidence that the
employer has treated him or her differently than similarly situated employees
who are not in the protected class to prove discriminatory intent, and the
evidence fails to show a stark pattern of discrimination, then the plaintiff
has failed to prove an intent to discriminate as a matter of law.
45
When a plaintiff attempts to satisfy the ultimate burden of proving
discriminatory intent by presenting circumstantial evidence of disparate
treatment, the plaintiff must show ‘‘that the better-treated workers with
whom the plaintiff compares herself are a representative sample of all the
workers who are comparable to her. . . . She must not pick and choose
[comparators].’’ (Citations omitted.) Crawford v. Indiana Harbor Belt Railroad Co., 461 F.3d 844, 845 (7th Cir. 2006); see also Simpson v. Kay Jewelers,
142 F.3d 639, 646–47 (3d Cir. 1998) (to prove age discrimination, plaintiff
cannot ‘‘pick and choose a person she perceives is a valid comparator who
was allegedly treated more favorably, and completely ignore’’ other relevant
comparators); Simpson v. Kay Jewelers, supra, 645 (plaintiff cannot selectively choose comparator); Simpson v. Kay Jewelers, supra, 645 (‘‘the mere
favorable treatment of [a member of an unprotected class] as compared
to [a member of a protected class] may not be sufficient to infer . . .
discrimination’’); Soria v. Ozinga Bros., Inc., 704 F.2d 990, 996 (7th Cir.
1983) (in disparate treatment action, when sample included only fifteen
recorded disciplinary actions and plaintiff chose to omit thirteen unwritten
disciplinary incidents, trial court ‘‘was well justified in considering . . .
flawed and incomplete disciplinary statistics to be of ‘minimal assistance’ ’’).
These cases recognize that no rational inference of discriminatory intent
can be made merely because the employer treated the plaintiff differently
than some, arbitrarily selected, comparators; rather, the plaintiff must establish an overall pattern of disparate treatment based on membership in the
protected class. Cf. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088–89
(11th Cir. 2004) (for purposes of establishing prima facie case of disparate
treatment on basis of sex, evidence that two women were chosen for promotion out of forty-four open positions had no probative value when plaintiff
had not provided other relevant information, such as number of women
who sought promotion); Hillstrom v. Best Western TLC Hotel, 354 F.3d 27,
32 (1st Cir. 2003) (for purposes of proving claim of disparate treatment on
basis of age and gender, statistical evidence that 75 percent of individuals
terminated by supervisor were over age of forty and 87 percent were male
was not probative ‘‘absent evidence of the characteristics of the universe
of employees supervised by [the supervisor]’’); Montana v. First Federal
Savings & Loan Assn. of Rochester, 869 F.2d 100, 107 (2d Cir. 1989) (sex
discrimination claim was properly dismissed when plaintiff presented no
evidence of total number of male and female managers, overall percentage
of males and females affected by employment action or that employer had
discriminatory attitude toward women); Hagans v. Andrus, 651 F.2d 622,
627 (9th Cir.) (for purposes of establishing prima face case of disparate
treatment on basis of sex, fact that low percentage of employees in high
positions were women was meaningless without evidence of pool of qualified
women applicants), cert. denied, 454 U.S. 859, 102 S. Ct. 313, 70 L. Ed. 2d
157 (1981); Weaks v. North Carolina Dept. of Transportation, 761 F. Sup.
2d 289, 308–309 (M.D.N.C. January 25, 2011) (anecdotal evidence that nine
white employees were promoted while three African-American employees
were not was not probative in absence of evidence regarding qualified labor
pool). Accordingly, when a plaintiff has failed to present evidence regarding
the employer’s treatment of all relevant comparators, or at least a representative sample thereof, evidence that the employer has treated some employees
more favorably than the plaintiff, standing alone, will be insufficient to
establish that the employer displayed a pattern of treating the plaintiff and
other members of the protected class worse than other similarly situated
employees and, therefore, it will be insufficient to prove discriminatory
intent.
The evidence in the present case showed that at least seventeen administrators were accused of abusing student during the relevant time period.
See footnote 30 of this opinion. The plaintiff has not explained why not all
of these administrators were similarly situated to her or why she was unable
to use them as comparators, and we have no way of knowing whether the
sample that she chose was representative. Because we have concluded,
however, that the circumstantial evidence presented by the plaintiff in the
present case did not show a pattern of discriminatory conduct, even if it is
assumed that the plaintiff compared herself to all of the relevant comparators, and because the defendants have raised no claim in the present case
that the plaintiff failed to identify all relevant comparators, we need not
consider whether or how these principles would apply here.
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