Dickman v. University of Connecticut Health Center ( 2016 )

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PRISCILLA DICKMAN v. UNIVERSITY OF
CONNECTICUT HEALTH CENTER
(AC 37251)
DiPentima, C. J., and Gruendel and Sheldon, Js.
Argued October 16, 2015—officially released January 19, 2016
(Appeal from the Workers’ Compensation
Commissioner for the first district.)
Priscilla Dickman, self-represented, the appellant
(plaintiff).
Lawrence G. Widem, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Philip M. Schultz, assistant attorney general,
for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Priscilla Dickman,
appeals from the decision of the Workers’ Compensa-
tion Commissioner for the first district (commissioner)
dismissing her General Statutes § 31-290a1 discrimina-
tory discharge claim against the defendant, the Univer-
sity of Connecticut Health Center. On appeal, the self-
represented plaintiff2 challenges the commissioner’s
findings and conclusions. The defendant responds that
the plaintiff has failed to provide any grounds for
reversing the commissioner’s dismissal, and that the
record supports the commissioner’s dismissal.3 We
agree with the defendant, and, accordingly, affirm the
decision of the commissioner.
The following procedural history is relevant to this
appeal. The plaintiff filed this discriminatory discharge
claim in January, 2012, pursuant to § 31-290a (b) (2),
alleging that the defendant constructively discharged
her because she exercised rights afforded to her under
the Workers’ Compensation Act, General Statutes § 31-
275 et seq. Specifically, the plaintiff claimed that
because the defendant failed to accommodate her phys-
ical impairments and because it initiated criminal and
civil ethics investigations with the purpose to harass
her, the defendant created a hostile work environment,
thereby forcing her to retire. The plaintiff sought, inter
alia, a finding that the defendant, by its alleged conduct,
violated § 31-290a. The commissioner held seven formal
hearings between 2012 and 2014 in which testimony
was received from nine witnesses, deposition testimony
was received from one additional witness, and more
than 100 exhibits were admitted into evidence. The
commissioner found in favor of the defendant and dis-
missed the plaintiff’s discriminatory discharge claim.
This appeal followed.
We set forth the relevant facts found by the commis-
sioner. The defendant employed the plaintiff, a medical
technologist 2, for approximately twenty-eight years.
Early in her career, in 1979, the plaintiff sustained ‘‘a
compensable back injury/fibromyalgia . . . .’’ This
injury arose out of and in the course of her employment
with the defendant.
Starting in the early 2000s, the plaintiff’s back pain
increased. Because of her worsening condition, the
plaintiff, in 2001, requested ergonomic changes to her
work area. Her treating physician, in 2003, ordered
restrictions on her duties, particularly limiting the num-
ber of days that the plaintiff could work each week and
the amount of time she could spend each day in her
work area. The defendant performed three ergonomic
studies of the plaintiff’s work area between 2001 and
2004 to address and accommodate her restrictions. Ulti-
mately, the plaintiff retired in 2005 after her ‘‘nonservice
disability retirement application’’ was approved.
At some point prior to 2004, the plaintiff’s supervisor
received complaints that the plaintiff was receiving non-
business related telephone calls at work and was absent
from her work area when she should have been work-
ing. Beginning in 2004, the plaintiff was the subject
of criminal and civil ethics investigations. E-mails and
other documents found in the plaintiff’s work computer
had precipitated the investigations. A number of people
employed by the defendant in various capacities, as
well as an inspector from the Office of the Chief State’s
Attorney and a legal investigator from the Office of
State Ethics, were involved in the investigations. As a
result of the criminal investigation, the plaintiff was
charged with and subsequently convicted of four counts
of forgery in the second degree in violation of General
Statutes § 53a-139 (a) (1). State v. Dickman, 146 Conn.
App. 17, 19, 75 A.3d 780 (conviction affirmed), cert.
denied, 310 Conn. 948, 80 A.3d 905 (2013).4 With respect
to the civil ethics investigation, the state ethics commis-
sion found that the plaintiff had violated General Stat-
utes § 1-84 (c) by ‘‘conducting various personal business
for financial gain on state time utilizing state resources.’’
The latter decision was affirmed in Dickman v. Office
of State Ethics, Citizen’s Ethics Advisory Board, 140
Conn. App. 754, 60 A.3d 297, cert. denied, 308 Conn.
934, 66 A.3d 497 (2013).
Relying on his factual findings, the commissioner
concluded that ‘‘based upon the totality of the evidence,
including actions, statements and e-mails made and
authored by various individuals in supervisory capaci-
ties with the [defendant] relating to the [plaintiff’s]
restrictions as well as the timing of these investigations,
it can be reasonably inferred that the [plaintiff] has
established a prima [facie] case that the [defendant]
created a hostile work environment resulting in a con-
structive discharge. . . . Pursuant to our case law,
when a [plaintiff] establishes a prima [facie] case, the
burden shifts to the [defendant] to rebut this presump-
tion of discrimination by producing evidence of legiti-
mate nondiscriminatory reasons for its action. . . . I
find and conclude that based upon the totality of the
evidence, the [defendant] has successfully met its bur-
den.’’ Moreover, the commissioner concluded that
‘‘[b]ased upon the totality of the evidence . . . the
[plaintiff] has not sustained her burden of proof that
the [defendant] created a hostile work environment
causing her to be constructively discharged compelling
her to seek a disability retirement. As such, the [plain-
tiff’s] § 31-290a claim is dismissed.’’
On appeal, the plaintiff challenges the commission-
er’s factual findings, contending that they were clearly
erroneous. Specifically, she claims that the commis-
sioner should have found that the defendant created a
hostile work environment by not making reasonable
accommodations for her and by pursuing criminal and
civil ethics investigations against her. As a result, the
plaintiff contends, she was constructively discharged,
which compelled her to seek a disability retirement.
The defendant counters that ‘‘the plaintiff has failed to
provide any credible evidence or legal support for a
claim that the commissioner’s factual findings or legal
conclusions were clearly erroneous.’’ We agree with
the defendant.5
We now set forth the standard of review and applica-
ble law governing the plaintiff’s claim. ‘‘[B]ecause the
commissioner is essentially fulfilling the role of a trial
court in adjudicating § 31-290a claims, the commission-
er’s findings of fact and conclusions of law, like those
of a trial court, should be reviewed on appeal under
the same standard. . . . [Thus] this standard . . . [is]
the clearly erroneous standard.’’ Mele v. Hartford, 270
Conn. 751, 767, 855 A.2d 196 (2004). ‘‘Under such a
standard, [a] finding . . . is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Id.
The burden of proof in § 31-290a claims is set forth
in Ford v. Blue Cross & Blue Shield of Connecticut,
Inc., 216 Conn. 40, 578 A.2d 1054 (1990), and its progeny.
In the burden shifting analysis, the plaintiff, initially,
has the ‘‘burden of proving by the preponderance of
the evidence a prima facie case of discrimination. . . .
[T]o meet this burden, the plaintiff must present evi-
dence that gives rise to an inference of unlawful discrim-
ination. . . . If the plaintiff meets this initial burden,
the burden then shifts to the defendant to rebut the
presumption of discrimination by producing evidence
of a legitimate, nondiscriminatory reason for its actions.
. . . If the defendant carries this burden of production,
the presumption raised by the prima facie case is rebut-
ted, and the factual inquiry proceeds to a new level of
specificity. . . . The plaintiff then must satisfy her bur-
den of persuading the factfinder that she was the victim
of discrimination either directly by persuading the [fact-
finder] . . . that a discriminatory reason more likely
motivated the employer or indirectly by showing that
the employer’s proffered explanation is unworthy of
credence.’’ (Internal quotation marks omitted.) Mele v.
Hartford, supra, 270 Conn. 768. We bear in mind that
‘‘it is the plaintiff’s ultimate burden to prove that the
defendant intentionally discriminated against her
. . . .’’ (Internal quotation marks omitted.) Id., 768–69.
The commissioner first concluded that the plaintiff
established a prima facie case that the defendant had
‘‘created a hostile work environment resulting in a con-
structive discharge.’’ His conclusion rested on the total-
ity of the evidence, namely, the ‘‘actions, statements,
and e-mails made and authored by various individuals
in supervisory capacities with the [defendant] relating
to the [plaintiff’s] restrictions as well as the timing of
[the] investigations . . . .’’ Thus, the burden shifted to
the defendant to rebut the presumption of discrimi-
nation.
The evidence before the commissioner supported his
finding that the defendant’s actions were nondiscrimi-
natory. First, the current administrative director of the
pathology and laboratory medicine and a former direc-
tor of benefits and payroll testified that they neither
harbored animosity toward the plaintiff nor sought to
force the plaintiff to leave. Next, an ergonomist
employed by the defendant testified that, as a result of
ergonomic studies, the defendant attempted to accom-
modate and make the necessary changes to the plain-
tiff’s work area. The testimony by the defendant’s
employees undercuts the assertions made by the plain-
tiff that individuals employed by the defendant ‘‘[pres-
sured]’’ her to leave and did not make reasonable
accommodations for her. Finally, the criminal and civil
ethics investigators testified that ‘‘no individuals associ-
ated or affiliated with the [defendant] requested [them]
. . . to pursue [their respective investigations].’’ This
testimony was bolstered by the current director of labor
relations employed by the defendant, who testified that
she did not target the plaintiff for ‘‘selective enforce-
ment’’ of ethics violations and that the defendant itself
did not discipline the plaintiff for her actions, i.e., receiv-
ing nonbusiness related calls and leaving her work area.
The testimony pertaining to the investigations under-
mines the claim advanced by the plaintiff that the defen-
dant actively pursued these investigations to create a
hostile work environment.
Although the commissioner found that the plaintiff
was ‘‘intelligent, articulate, determined and firmly
believes in her position on the issue of wrongful dis-
charge,’’ he expressly found the testimony of four cur-
rent or former employees as well as two investigators
‘‘to be more credible and persuasive [than that of] the
testimony of the [plaintiff].’’ We keep in mind that ‘‘[i]t
[is] the commissioner’s function to find the facts and
determine the credibility of witnesses . . . .’’ (Internal
quotation marks omitted.) Hammond v. Bridgeport,
139 Conn. App. 687, 698, 58 A.3d 259 (2012), cert. denied,
308 Conn. 916, 62 A.3d 527 (2013). Because ‘‘[t]his court
does not retry the case or evaluate the credibility of
the witnesses . . . we must defer to the [trier of fact’s]
assessment . . . .’’ (Internal quotation marks omitted.)
Valdes v. Yankee Casting Co., 94 Conn. App. 140, 145,
891 A.2d 994 (2006).
Once the defendant satisfied its burden of production
by rebutting the presumption raised by the prima facie
case, the burden of persuasion shifted to the plaintiff
to show that she was the victim of discrimination. The
commissioner concluded that the plaintiff did not meet
her burden of demonstrating that the defendant created
a hostile work environment resulting in her construc-
tive discharge.
‘‘A workers’ compensation commissioner has the
power to determine the facts and we cannot disturb
them when reasonably found. . . . Conclusions drawn
from those facts also cannot be disturbed unless they
result from an incorrect application of the law to those
facts or from an inference illegally or unreasonably
drawn from them.’’ (Citation omitted.) Chernovitz v.
Preston Trucking Co., 52 Conn. App. 570, 573, 729 A.2d
222 (1999). Under the standard of review established
in Mele v. Hartford, supra, 270 Conn. 767, we determine
that the commissioner’s decision was not clearly
erroneous.
The decision of the Workers’ Compensation Commis-
sioner is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 31-290a provides: ‘‘(a) No employer who is subject
to the provisions of this chapter shall discharge, or cause to be discharged,
or in any manner discriminate against any employee because the employee
has filed a claim for workers’ compensation benefits or otherwise exercised
the rights afforded to him pursuant to the provisions of this chapter.
‘‘(b) Any employee who is so discharged or discriminated against may
either: (1) Bring a civil action in the superior court for the judicial district
where the employer has its principal office for the reinstatement of his
previous job, payment of back wages and reestablishment of employee
benefits to which he would have otherwise been entitled if he had not been
discriminated against or discharged and any other damages caused by such
discrimination or discharge. The court may also award punitive damages.
Any employee who prevails in such a civil action shall be awarded reasonable
attorney’s fees and costs to be taxed by the court; or (2) file a complaint
with the chairman of the Workers’ Compensation Commission alleging viola-
tion of the provisions of subsection (a) of this section. Upon receipt of
any such complaint, the chairman shall select a commissioner to hear the
complaint, provided any commissioner who has previously rendered any
decision concerning the claim shall be excluded. The hearing shall be held
in the workers’ compensation district where the employer has its principal
office. After the hearing, the commissioner shall send each party a written
copy of his decision. The commissioner may award the employee the rein-
statement of his previous job, payment of back wages and reestablishment
of employee benefits to which he otherwise would have been eligible if he
had not been discriminated against or discharged. Any employee who pre-
vails in such a complaint shall be awarded reasonable attorney’s fees. Any
party aggrieved by the decision of the commissioner may appeal the decision
to the Appellate Court.’’
2
‘‘This court . . . has stated that it has always been solicitous of the
rights of [self-represented] litigants and, like the trial court, will endeavor
to see that such a litigant shall have the opportunity to have [her] case fully
and fairly heard so far as such latitude is consistent with the just rights of
any adverse party. . . . Although we will not entirely disregard our rules
of practice, we do give great latitude to [self-represented] litigants in order
that justice may both be done and be seen to be done. . . . For justice to
be done, however, any latitude given to [self-represented] litigants cannot
interfere with the rights of other parties, nor can we disregard completely
our rules of practice.’’ (Internal quotation marks omitted.) Cragg v. Adminis-
trator, Unemployment Compensation Act, 160 Conn. App. 430, 443 n.9,
A.3d (2015).
3
We note that the defendant presented two alternative bases for affirming
the judgment of the court. First, the defendant argued that the plaintiff’s
discriminatory discharge claim was barred by the statute of limitations in
General Statutes § 52-577, which provides that ‘‘[n]o action founded upon
a tort shall be brought but within three years from the date of the act or
omission complained of.’’ Second, the defendant argued that the plaintiff is
collaterally estopped because her claim was disposed by a summary judg-
ment granted in favor of the defendant by a federal District Court. Dickman
v. University of Connecticut Health Center, United States District Court,
Docket No. 3:08-CV-0588 (VLB) (D. Conn. August 29, 2013). Because we
affirm the decision of the commissioner, we do not address these bases.
4
We also note that during the course of this criminal investigation, an
inspector for the Office of the Chief State’s Attorney discovered that the
plaintiff was being investigated for an unrelated fraudulent insurance claim.
State v. Dickman, 119 Conn. App. 581, 585, 989 A.2d 613, cert. denied, 295
Conn. 923, 991 A.2d 569 (2010). The plaintiff was convicted of violating
General Statutes § 53a-140 (a). This court affirmed the conviction; id., 599;
subsequently, this court affirmed the judgment of the habeas court denying
the plaintiff’s petition for a writ of habeas. Dickman v. Commissioner of
Correction, 143 Conn. App. 780, 70 A.3d 1147 (2013).
5
The defendant argues that the plaintiff failed to exhaust her administra-
tive remedies because she did not pursue her rights under General Statutes
§ 31-313. In support of its argument the defendant notes that the commis-
sioner concluded that the plaintiff, between 2001 and 2005, ‘‘did not elect
to pursue her rights pursuant to [§ 31-313] to compel the [defendant] to
accommodate her restrictions.’’ We need not determine whether this finding
implicates subject matter jurisdiction because we conclude that the commis-
sioner properly dismissed the plaintiff’s § 31-290a claim on the facts he found.