Desmond v. Yale-New Haven Hospital, Inc. ( 2022 )

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SANDHYA DESMOND v. YALE-NEW HAVEN
HOSPITAL, INC., ET AL.
(AC 44180)
(AC 44181)
(AC 44182)
Bright, C. J., and Alvord and Norcott, Js.
Syllabus
The plaintiff appealed to this court from the judgments of the trial court
dismissing the substitute complaints in three cases she had filed against
her former employer, the defendant hospital, as barred by the exclusivity
provision (§ 31-284 (a)) of the Workers’ Compensation Act (§ 31-275 et
seq.). The plaintiff had been employed by the defendant when she suf-
fered an injury for which she sought workers’ compensation benefits,
and the defendant accepted the claim. The plaintiff filed functionally
identical substitute complaints in each of the three actions, alleging, inter
alia, that the defendant had engaged in retaliatory and discriminatory
conduct against her in violation of statute (§ 31-290a) as a result of her
having sought workers’ compensation benefits. The trial court granted
the defendant’s motions to strike all three complaints, determining that
they did not allege employment discrimination claims pursuant to § 31-
290a but, rather, bad faith processing of a workers’ compensation claim,
which was barred by § 31-284 (a). Held that the trial court properly
struck the complaints as being barred by § 31-284 (a), as the plaintiff
failed to allege any adverse employment action by the defendant, none
of its alleged behavior related to or had any effect on her employment
status, she admitted in her complaints that the defendant’s behavior did
not arise out of or in the course of her employment, and, despite her
attempt to recast her claims as alleging employment discrimination,
she alleged nothing more than bad faith processing of her workers’
compensation claim.
Argued January 20—officially released May 3, 2022
Procedural History
Action to recover damages for, inter alia, statutory
theft, and for other relief, brought to the Superior Court
in the judicial district of New Haven, where the court,
Nazzaro, J., granted the defendants’ motion to strike;
thereafter, the court denied the plaintiff’s request for
leave to amend her substitute complaint; subsequently,
the court, Ecker, J., granted the defendants’ motion for
judgment and rendered judgment of dismissal, from
which the plaintiff appealed to this court, Sheldon, Kel-
ler and Bright, Js., which reversed the judgment in
part and remanded the case for further proceedings;
thereafter, the court, Young, J., consolidated the case
with two separate actions the plaintiff had brought
alleging discriminatory and retaliatory conduct by the
named defendant in connection with her claim for work-
ers’ compensation benefits and transferred the cases to
the Superior Court in the judicial district of Waterbury,
Complex Litigation Docket; subsequently, the court,
Bellis, J., granted the named defendant’s motions to
strike and for judgments of dismissal, from which the
plaintiff filed separate appeals with this court, which
consolidated the appeals. Affirmed.
Eric M. Desmond, for the appellant (plaintiff).
Phyllis M. Pari, for the appellee (named defendant).
Opinion
ALVORD, J. In these consolidated actions, the plain-
tiff, Sandhya Desmond, a former employee of the defen-
dant Yale-New Haven Hospital, Inc.,1 appeals from the
judgments of the trial court rendered following the
granting of the defendant’s motions to strike her com-
plaints. On appeal, the plaintiff claims that the court
incorrectly construed her claims as alleging bad faith
processing of a workers’ compensation claim rather
than as claims made pursuant to General Statutes § 31-
290a and, therefore, erred in determining that her claims
were barred by the exclusivity provision of the Workers’
Compensation Act (act), General Statutes § 31-275 et
seq. We disagree and, therefore, affirm the judgments
of the trial court.
We begin with the relevant portions of the lengthy
procedural history of these actions, which is set forth
in part in this court’s decision in Desmond v. Yale-New
Haven Hospital, Inc., 138 Conn. App. 93, 50 A.3d 910,
cert. denied, 307 Conn. 942, 58 A.3d 258 (2012) (Des-
mond I). ‘‘[T]he plaintiff was an employee of the [defen-
dant]. On December 30, 2004, she was injured in the
course of her employment. According to the plaintiff,
she suffered a spill-related fall while at work and subse-
quently was diagnosed with bilateral, acute posttraumatic
carpal tunnel injuries. Her physicians have advised her
that, absent medical treatment, she permanently will be
unable to use her hands.
‘‘Subsequently, she filed a workers’ compensation
claim with regard to her injury, and the [self-insured
defendant] accepted the claim. On March 6, 2008, she
filed a federal action in United States District Court for
the District of Connecticut, in which she alleged various
claims under state law and the Americans with Disabili-
ties Act, 42 U.S.C. § 12101 et seq. On March 23, 2009,
the District Court granted the [defendant’s] motion to
dismiss as to the plaintiff’s state law claims, allowing
the action to proceed only on her claim under the Ameri-
cans with Disabilities Act.2
‘‘On May 20, 2010, the plaintiff filed in the Superior
Court the operative complaint [of the first appeal]
. . . . [That] complaint contained ten counts, alleging
. . . workers’ compensation fraud, statutory negli-
gence, breach of contract, unfair and deceptive acts
and practices in violation of [the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes 42-110a
et seq.] and delay in the delivery of benefits under the
act in violation of the plaintiff’s state constitutional
right to due process. The complaint alleged that the
[defendant] had made various filings with the workers’
compensation commission (commission) in a bad faith
and fraudulent attempt to delay treatment. The com-
plaint alleged that these bad faith attempts to delay
treatment caused the plaintiff’s condition to worsen, as
she did not receive necessary treatment.’’ (Footnote
added.) Id., 95–96.
Following the defendant’s filing of a motion to dis-
miss, the court, relying on our Supreme Court’s decision
in DeOliveira v. Liberty Mutual Ins. Co., 273 Conn.
487, 870 A.2d 1066 (2005) (holding that causes of action
alleging bad faith processing of workers’ compensation
claim are barred by exclusivity provision of act), dis-
missed the action on the ground ‘‘that the plaintiff’s
claims did not allege conduct that was sufficiently egre-
gious to remove the claims from the exclusive jurisdic-
tion of the commission.’’3 Desmond I, supra, 138 Conn.
App. 96. The plaintiff thereafter appealed to this court.
Id.On appeal in Desmond I, this court held that, despite
the labels the plaintiff placed on her claims, ‘‘[a]pplying
the rule articulated in DeOliveira to the facts of [the]
case, it is clear that the plaintiff’s claimed injuries, alleg-
edly caused by the [defendant’s] bad faith delays in
medical treatment, arose out of and in the course of
the workers’ compensation claims process. Therefore,
we conclude that the plaintiff’s alleged injuries fall
within the jurisdiction of the commission and that,
accordingly, the court properly granted the [defen-
dant’s] motion to dismiss.’’ Id., 102. Accordingly, this
court in Desmond I affirmed the judgment of the trial
court dismissing the plaintiff’s action. See id., 105.
Following our decision in Desmond I, the plaintiff,
in August, 2013, brought a new action (2013 action)
against the defendant. This court, in Desmond v. Yale-
New Haven Hospital, Inc., 181 Conn. App. 201, 185
A.3d 665, cert. denied, 330 Conn. 902, 191 A.3d 1001(2018) (Desmond II), set forth additional procedural
history related to the 2013 action. ‘‘On October 3, 2013,
the plaintiff filed her [first] amended complaint . . .
wherein she again set forth ten counts against the
[defendant], claiming statutory theft, common-law
fraud, violation of CUTPA, breach of contract and statu-
tory negligence. The [defendant] moved to strike all of
the plaintiff’s claims on the ground, inter alia, that they
are barred by the exclusivity provision of the act, and
thus that the trial court had no jurisdiction over them.
The plaintiff filed an objection, arguing, inter alia, that
her claims were not barred by the exclusivity of the
act. . . .
‘‘By way of a memorandum of decision filed on
November 26, 2014, the court granted the [defendant’s]
motion to strike the plaintiff’s entire complaint on the
ground that all of the plaintiff’s claims fell within the
exclusive jurisdiction of the commission. The court rea-
soned that the alleged misconduct of the [defendant],
which the court found to be ‘identical to that alleged
in Desmond [I] . . . but for the addition of some con-
duct by the [defendant] postdating the prior suit,’ was
not so egregious to invoke the exception to exclusivity.
‘‘The plaintiff did not appeal from the trial court’s
ruling striking her complaint. Rather, on December 11,
2014, pursuant to Practice Book § 10-44, the plaintiff,
in her view, as advanced before this court, filed a substi-
tute complaint ‘in an effort to plead additional facts
and to amplify the allegations such that viability of the
. . . [General Statutes] § 52-564 [statutory theft] claim
(and associated claims) would be sufficient to allow
the claim to proceed to the merits.’
‘‘On February 5, 2015, the plaintiff filed a request for
leave to amend her substitute complaint, pursuant to
Practice Book § 10-60, to incorporate a claim for retalia-
tory discrimination pursuant to General Statutes § 31-
290a. . . . On April 23, 2015, the court, Nazzaro, J.,
denied the plaintiff’s request for leave to amend, and
sustained the [defendant’s] objection thereto. . . .
‘‘On May 7, 2015, the [defendant] filed a request to
revise the plaintiff’s substitute complaint, which she had
filed on December 11, 2014. The [defendant] sought to
have the plaintiff’s entire substitute complaint deleted
because the allegations of the substitute complaint were
substantially similar to those contained in the plaintiff’s
previously stricken complaint and the allegations added
to the substitute complaint failed to cure the deficienc-
ies of the earlier complaint.’’ (Footnote omitted.) Id.,
205–207. The plaintiff objected to the defendant’s request
to revise. Id., 207.
‘‘On March 4, 2016, the court, Ecker, J., issued an
order overruling the plaintiff’s objections to the [defen-
dant’s] request to revise and rendered judgment dis-
missing her complaint. In so doing, the court held, inter
alia: ‘[I]t is the court’s opinion that the substitute com-
plaint is not, in substance, materially different from the
. . . stricken . . . complaint. In other words, the new
allegations in the substitute complaint do not cure the
legal deficiencies that caused Judge Nazzaro to strike
the [amended] complaint. The substitute complaint con-
tains many more pages of allegations, but those allega-
tions, in this court’s view, do not change the nature or
character of the underlying claims in a manner that
would alter the outcome of Judge Nazzaro’s memoran-
dum of decision striking the [amended] complaint.’ The
court also explained that it was disinclined to revisit
Judge Nazzaro’s decision striking the plaintiff’s com-
plaint, but that, even if it did so, it would agree that
the plaintiff’s allegations could not overcome the exclu-
sivity of the act. The plaintiff subsequently sought rear-
gument, which the court denied.’’ Id., 209. The plaintiff
then appealed. Id.
In Desmond II, this court declined to review the plain-
tiff’s appellate claim that the trial court erred in deter-
mining that her claims were barred by the exclusivity
of the act, concluding that the claim was inadequately
briefed. See id., 213. This court did determine, however,
that the trial court ‘‘considered the wrong complaint
when it denied the plaintiff’s request for leave to amend’’
her substitute complaint in order to add a claim for
retaliatory discrimination under § 31-290a, and, there-
fore, this court reversed the judgment in part and
remanded the case for further proceedings on her
request to amend the complaint and the defendant’s
objection thereto. Id., 215.
In the meantime, in 2015, and later, in 2016, the plain-
tiff filed two additional actions (2015 and 2016 actions)
against the defendant arising from the same conduct,
both captioned as seeking relief pursuant to § 31-290a.
On remand from Desmond II, on October 19, 2018,
the court, Young, J., issued a memorandum of decision
in which it granted the plaintiff’s request for leave to
amend her complaint in the 2013 action to add retalia-
tion and discrimination claims under § 31-290a. In the
same memorandum of decision, the court, sua sponte,
consolidated the 2013 action, which had been the sub-
ject of our review in Desmond II, with the 2015 and
2016 actions, and all three actions were transferred to
the complex litigation docket.
On November 27, 2019, the plaintiff filed functionally
identical substituted complaints in each of the three
actions.4 In the complaints, the plaintiff alleged that the
defendant sought to delay or terminate her medical
treatment and discriminated against her as a result of
her having filed and maintained a workers’ compensa-
tion claim ‘‘by intentionally or deliberately engaging in
fraudulent, deceptive, misleading, and misrepresenta-
tive conduct . . . .’’ Specifically, she alleged that the
defendant ‘‘engaged in aggressive vehicular surveillance
of the plaintiff and her family’’; ‘‘fabricated allegations’’
about the plaintiff’s health and treatment and presented
those allegations to the commission and the plaintiff’s
doctors; delayed payment for treatment that it had
approved; and otherwise disrupted the plaintiff’s ability
to access treatment for her injury. As a result, the plain-
tiff alleged that she suffered a reduction in benefits, a
denial of treatment, a delay in treatment, and an overall
worsening of her medical condition. The plaintiff specif-
ically stated that ‘‘the harm . . . from the defendant’s
discriminatory conduct did not ‘arise out of or in the
course of her employment’ with the defendant.’’
On December 23, 2019, the defendant filed a motion
to strike each of the substituted complaints, arguing,
inter alia, that the actions ‘‘are barred by the exclusivity
of the [act].’’5 The plaintiff objected.
On June 3, 2020, the court, Bellis, J., issued three
memoranda of decision, one in each action, striking all
three of the complaints.6 The court determined that the
allegations in the plaintiff’s complaints were properly
construed as alleging bad faith processing of a workers’
compensation claim, not employment discrimination
claims pursuant to § 31-290a. The court set forth the
elements of an employment discrimination cause of action
pursuant to § 31-290a as requiring adverse employment
action and determined that ‘‘[a] close review of the
allegations of the plaintiff’s complaint makes clear that
all of the alleged wrongdoing on the part of the defen-
dant concerns its administration of the plaintiff’s work-
ers’ compensation claim. Notably, there are no specific
factual allegations that the defendant discriminated
against the plaintiff with respect to her employment.’’
The court then determined that such a claim was barred
by the exclusivity provision of the act, relying on DeOli-
veira v. Liberty Mutual Ins. Co., supra, 273 Conn. 487.
Finally, the court noted that, even if the complaint prop-
erly was construed as alleging a claim of employment
discrimination pursuant to § 31-290a, ‘‘such a claim
would be legally insufficient because the plaintiff fail[ed]
to allege that the defendant took any adverse employ-
ment action against her.’’
On June 23, 2020, the plaintiff filed motions for rear-
gument and reconsideration as to the court’s decisions
striking all three complaints. The court denied the
motions on July 6, 2020, and subsequently granted the
defendant’s motions for judgment on the stricken com-
plaints. On July 24, 2020, the plaintiff appealed from
each of the court’s decisions striking the complaints,
and this court, sua sponte, consolidated the three appeals.7
On appeal, the plaintiff claims that the trial court erred
in striking her complaints. She argues that the court
improperly construed her claims as alleging bad faith
processing of a workers’ compensation claim because
she asserted claims pursuant to § 31-290a, which are
not barred by the exclusivity provision of the act. The
defendant responds that the court properly construed
the claims as alleging bad faith processing of a workers’
compensation claim and, therefore, properly struck the
claims. We agree with the defendant.
We first set forth the applicable standard of review.
‘‘Because a motion to strike challenges the legal suffi-
ciency of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling . . . is plenary. . . . We take the facts
to be those alleged in the complaint that has been
stricken and we construe the complaint in the manner
most favorable to sustaining its legal sufficiency. . . .
Thus, [i]f facts provable in the complaint would support
a cause of action, the motion to strike must be denied.’’
(Internal quotation marks omitted.) Karagozian v. USV
Optical, Inc., 335 Conn. 426, 433–34, 238 A.3d 716 (2020).
‘‘Moreover, we note that [w]hat is necessarily implied
[in an allegation] need not be expressly alleged. . . .
It is fundamental that in determining the sufficiency of
a complaint challenged by a defendant’s motion to
strike, all well-pleaded facts and those facts necessarily
implied from the allegations are taken as admitted.’’
(Internal quotation marks omitted.) Lawrence v. O &
G Industries, Inc., 319 Conn. 641, 649, 126 A.3d 569(2015). Although ‘‘[w]e assume the truth of both the
specific factual allegations and any facts fairly provable
thereunder. . . . A [motion to strike] admits all facts
well pleaded; it does not admit legal conclusions or the
truth or accuracy of opinions stated in the pleadings.’’
(Internal quotation marks omitted.) Binkowski v. Board
of Education, 180 Conn. App. 580, 585, 184 A.3d 279(2018). ‘‘A motion to strike is properly granted if the
complaint alleges mere conclusions of law that are
unsupported by the facts alleged.’’ (Internal quotation
marks omitted.) Santorso v. Bristol Hospital, 308 Conn.
338, 349, 63 A.3d 940 (2013). Furthermore, ‘‘[t]he inter-
pretation of pleadings is always a question of law for
the court and . . . our interpretation of the pleadings
therefore is plenary.’’ (Internal quotation marks omit-
ted.) Boone v. William W. Backus Hospital, 272 Conn.
551, 573 n.12, 864 A.2d 1 (2005).
We next set forth the act’s exclusivity provision which
provides in relevant part: ‘‘An employer who complies
with the requirements of subsection (b) of this section
shall not be liable for any action for damages on account
of personal injury sustained by an employee arising out
of and in the course of his employment . . . but an
employer shall secure compensation for his employees
as provided under this chapter . . . . All rights and
claims between an employer who complies with the
requirements of subsection (b) of this section and
employees . . . arising out of personal injury or death
sustained in the course of employment are abolished
other than rights and claims given by this chapter
. . . .’’ General Statutes § 31-284 (a).
In DeOliveira, our Supreme Court held that § 31-284
bars actions that allege bad faith processing of workers’
compensation claims.8 The court explained that ‘‘[t]he
legislature . . . expressly has conferred jurisdiction
upon the commission to adjudicate claims related to
untimely payment of benefits and has developed a
scheme under which remedies may be provided.’’9 DeO-
liveira v. Liberty Mutual Ins. Co., supra, 273 Conn.
496–97. In addition, as the court explained, ‘‘[t]he legis-
lature has empowered the commission to take other
measures to ensure prompt payment of benefits . . . .’’
Id., 497. ‘‘In other words, by providing remedies for
such conduct, the legislature evinced its intention to
bar a tort action for the same conduct proscribed and
penalized under the act. . . . Indeed, construing the
act to permit a tort action for an injury for which a
remedial process is provided under the act would invite
the indefinite prolonging of litigation and risk double
recoveries and inconsistent findings of fact, a result
which the legislature, in enacting a system of compensa-
tion in place of common law remedies, certainly wished
to avoid.’’ (Citations omitted; internal quotation marks
omitted.) Id., 499–500.
Thus, the court concluded: ‘‘In light of the remedies
expressly provided, we decline to construe § 31-284 as
not barring [actions alleging bad faith processing of a
workers’ compensation claim] . . . [because] to do so
would . . . usurp the legislative function. . . . [A]
damage suit as an alternative or additional source of
compensation, becomes permissible only by carving a
judicial exception in an uncarved statute. . . . Neither
moral aversion to the [insurer’s act] nor the shiny pros-
pect of a large damage verdict justifies interference with
what is essentially a policy choice of the [l]egislature.’’
(Internal quotation marks omitted.) Id., 501. ‘‘[I]njuries
arising out of and in the course of the workers’ compen-
sation claims process fall within the scope of the exclu-
sive remedy provisions because this process is tethered
to a compensable injury.’’ (Internal quotation marks
omitted.) Id., 503. ‘‘It is also clear that [i]nsurer activity
intrinsic to the workers’ compensation claims process is
also a risk contemplated by the compensation bargain.
Thus, insurer actions10 closely connected to the pay-
ment of benefits fall within the scope of the exclusive
remedy provisions. . . . Consistent with this reason-
ing, we conclude that we must construe the exclusion-
ary provision’s prohibition on damages actions for injur-
ies arising out of and in the course of . . . employment
to include injuries arising out of and in the course of
the workers’ compensation claims process.’’ (Citation
omitted; emphasis in original; footnote added; internal
quotation marks omitted.) Id., 504.
We next set forth the principles governing a claim of
employment discrimination brought pursuant to § 31-
290a,11 which provides in relevant part: ‘‘(a) No employer
who is subject to the provisions of this chapter shall dis-
charge, or cause to be discharged, or in any manner dis-
criminate against any employee because the employee
has filed a claim for workers’ compensation benefits
or otherwise exercised the rights afforded to him pursu-
ant to the provisions of this chapter. . . .
‘‘(b) Any employee who is so discharged or discrimi-
nated against . . . may . . . (1) [b]ring 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 reestab-
lishment 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 discriminated or discharge. The court may also
award punitive damages. Any employee who prevails
in such a civil action shall be awarded reasonable attor-
ney’s fees and costs to be taxed by the court . . . .’’
‘‘To establish a prima facie case of discrimination
under § 31-290a, the plaintiff must show that she was
exercising a right afforded her under the [act] and that
the defendant discriminated against her for exercising
that right. . . . [T]he plaintiff must show a [causal]
connection between exercising her rights under the act
and the alleged discrimination she suffered. Implicit in
this requirement is a showing that the defendant knew
or was otherwise aware that the plaintiff had exercised
her rights under the act. . . . [T]o establish [a] prima
facie case of discrimination, the plaintiff must first pres-
ent sufficient evidence . . . that is, evidence sufficient
to permit a rational trier of fact to find [1] that she
engaged in protected [activity] . . . [2] that the
employer was aware of this activity, [3] that the
employer took adverse action against the plaintiff, and
[4] that a causal connection exists between the pro-
tected activity and the adverse action, i.e., that a retalia-
tory motive played a part in the adverse employment
action. . . .’’ (Emphasis added; internal quotation
marks omitted.) Callender v. Reflexite Corp., 143 Conn.
App. 351, 364, 70 A.3d 1084, cert. denied, 310 Conn.
905, 75 A.3d 32 (2013); see also Gibilisco v. Tilcon
Connecticut, Inc., 203 Conn. App. 845, 860–61, 251 A.3d
994, cert. denied, 336 Conn. 947, 251 A.3d 77 (2021).12
‘‘A plaintiff sustains an adverse employment action
if he or she endures a materially adverse change in
the terms and conditions of employment. . . . To be
materially adverse a change in working conditions must
be more disruptive than a mere inconvenience or an
alteration of job responsibilities. . . . [A]n adverse
employment action [has been defined] as a significant
change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly dif-
ferent responsibilities, or a decision causing a signifi-
cant change in benefits.’’ (Internal quotation marks
omitted.) Heyward v. Judicial Dept., 178 Conn. App.
757, 767–68, 176 A.3d 1234 (2017).
On review, it is clear that the plaintiff did not allege
a claim of employment discrimination pursuant to § 31-
290a, as the complaints in these consolidated actions
failed to allege any adverse employment action. In the
complaints, the plaintiff admitted that the defendant’s
behavior ‘‘did not ‘arise out of or in the course of her
employment’ . . . .’’ As the court determined, ‘‘all of
the alleged wrongdoing on the part of the defendant
concerns its administration of the plaintiff’s workers’
compensation claim.’’ None of the alleged behavior
related to or had any effect on her employment status,
and, thus, the plaintiff did not allege any adverse
employment action.13 See Heyward v. Judicial Dept.,
supra, 178 Conn. App. 767–68. Not only did the plaintiff
fail to allege any adverse employment action, her allega-
tions form the type of claim that DeOliveira prohibits.14
We reject the plaintiff’s attempt to recast her claims
as alleging employment discrimination pursuant to § 31-
290a. Despite the labels the plaintiff has affixed to her
complaints, she has alleged nothing more than bad faith
processing of her workers’ compensation claim. See
Ganim v. Smith & Wesson Corp., 258 Conn. 313, 348,
780 A.2d 98 (2001) (‘‘the labels placed on the allegations
by the parties [are] not controlling’’); see also Gazo v.
Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001) (‘‘we
look beyond the language used in the complaint to
determine what the plaintiff really seeks’’). Therefore,
the court properly determined that the plaintiff’s com-
plaints alleged claims of bad faith processing. Further-
more, as § 31-284 bars actions that relate to the pro-
cessing of workers’ compensation claims, the court
properly struck the complaints as being barred by the
exclusivity provision of the act. See DeOliveira v. Lib-
erty Mutual Ins. Co., supra, 273 Conn. 501; see also
Karagozian v. USV Optical, Inc., 335 Conn. 433–34.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Although in the first action at issue in this appeal, Docket No. CV-13-
6045184-S, the plaintiff initially also named Yale-New Haven Health Services,
Inc., as a defendant, the operative complaint in that action alleged no claims
against Yale-New Haven Health Services, Inc., and did not list it as a defen-
dant. Accordingly, we refer in this opinion to Yale-New Haven Hospital,
Inc., as the defendant.
2
See Desmond v. Yale-New Haven Hospital, Inc., Docket No. 3:08-cv-
00346 (VLB) (D. Conn. March 23, 2009). The District Court later granted the
defendant’s motion for summary judgment, rendering judgment in favor of
the defendant on the remaining claim. See Desmond v. Yale-New Haven
Hospital, Inc., 738 F. Supp. 2d 331, 333 (D. Conn. 2010).
3
The exclusivity provision of the act limits tort remedies available to
workers’ compensation recipients. DeOliveira v. Liberty Mutual Ins. Co.,
supra, 273 Conn. 496. In DeOliveira, the court explained that there is a
‘‘narrow exception to the exclusivity provision for intentional torts.’’ Id.,
506. Specifically, the court ‘‘recognize[d] that there could be an instance in
which an insurer’s conduct related to the processing of a claim, separate
and apart from nonpayment, might be so egregious that the insurer no longer
could be deemed to be acting as an agent of the employer and, thus, a claim
arising from such conduct would not fall within the scope of the act.’’
(Emphasis in original.) Id., 507. That narrow exception is not at issue in
the present appeal. See footnote 15 of this opinion.
4
In the operative complaint in the 2013 action, Docket No. CV-XX-XXXXXXX-
S, the plaintiff set forth thirty-four pages of allegations and requested relief
pursuant to § 31-290a. In the 2015 and 2016 actions’ operative complaints,
Docket Nos. CV-XX-XXXXXXX-S and CV-XX-XXXXXXX-S, the plaintiff organized
the same allegations into two counts: discrimination in violation of § 31-
290a and retaliation in violation of § 31-290a. The allegations in each count
are virtually identical with the exception of the terminology: in count one,
the plaintiff characterizes the defendant’s actions as ‘‘discriminatory’’ and
in count two as ‘‘retaliatory.’’
5
The defendant also argued that the complaints failed to allege the requi-
site elements of a § 31-290a claim and that they were barred by the law of
the case doctrine, the absolute litigation privilege, res judicata and collateral
estoppel, the prior pending action doctrine, and the applicable statute of
limitations.
6
In the memoranda of decision in the 2015 and 2016 actions, the court
referred to its analysis in the memorandum of decision issued in the 2013
action as the basis for striking those complaints, determining that the com-
plaints in the 2015 and 2016 actions were ‘‘virtually indistinguishable’’ from
the complaint in the 2013 action.
7
The plaintiff thereafter filed motions for articulation, which were denied.
The plaintiff then filed motions for review with this court, which granted
review but denied the relief requested.
8
In DeOliveira, ‘‘the plaintiff asserted claims of negligent, reckless and
intentional conduct, implied breach of the covenant of good faith, negligent
and intentional infliction of emotional distress and a violation of [CUTPA]’’;
DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 493; after his
employer ‘‘contest[ed] that the plaintiff’s injury arose in the course of his
employment.’’ Id., 491. The claims were, however, construed as ‘‘alleging,
in essence, that the defendant unreasonably delayed its processing of the
plaintiff’s workers’ compensation claim . . . .’’ Id., 489.
9
‘‘As a general matter, the [workers’ compensation] commissioners have
jurisdiction to hear all claims . . . arising under [the act] . . . . General
Statutes § 31-278. Specifically, the commissioners have the authority to hear
an employee’s claim that, through the fault or neglect of an employer or
insurer, the adjustment or payment of compensation due . . . [has been]
unduly delayed and to assess a civil penalty of up to $500 for each case of
delay. General Statutes § 31-288 (b). If an employer or insurer unreasonably
contests liability, the commissioners have authority to award attorney’s fees
to the employee. General Statutes § 31-300. Similarly, if a commissioner
determines that, through the fault or neglect of the employer or insurer,
payments or adjustments in payment have been delayed unduly or unreason-
ably, the commissioner may include interest and attorney’s fees in an award.
General Statutes § 31-300. Finally, if an employer fails to make payments
due under an award or voluntary agreement within the statutorily prescribed
period, a commissioner shall assess a penalty for each late payment, in the
amount of [20 percent] of such payment, in addition to any other interest
or penalty imposed pursuant to the provisions of this chapter. General
Statutes § 31-303.’’ (Internal quotation marks omitted.) DeOliveira v. Liberty
Mutual Ins. Co., supra, 273 Conn. 497.
10
The court noted that exclusivity applies to ‘‘wrongful, not merely negli-
gent, conduct.’’ DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn.
507. Indeed, the court explained that the exclusivity provision only allows
an exception for intentional torts when the behavior alleged is ‘‘egregious
. . . .’’ Id.; see also footnote 3 of this opinion.
11
Although § 31-290a has been amended since the events at issue; see
Public Acts 2021, No. 21-18, § 1; Public Acts, Spec. Sess., June, 2021, No.
21-2, § 90; those amendments are not relevant to this appeal. We therefore
refer to the current revision of § 31-290a.
12
The plaintiff argues that a claim of employment discrimination brought
pursuant to § 31-290a does not require adverse employment action and
asserts a variety of arguments in support of that position; however, after
careful review of these arguments, the applicable law, and the record, we
conclude that these arguments are meritless.
13
The plaintiff argues, in the alternative, that, if a § 31-290a claim requires
an adverse employment action, the trial court ‘‘fail[ed] to recognize that
adverse employment actions include discrimination against workers’ com-
pensation claimants.’’ According to the plaintiff, ‘‘[t]he relationship between
the plaintiff and the defendant constitutes a type of implied employment
relationship that is contingent upon an underlying employer-employee rela-
tionship. This is sufficient to find that the defendant’s actions constitute
adverse employment actions with respect to the plaintiff’s exercises of rights
under the act . . . [because], when [the] defendant discriminatorily targets
the plaintiff . . . it causes a materially adverse change to the uninterrupted
receipt by [her] of employment related wages and benefits.’’ (Internal quota-
tion marks omitted.) We reject this argument as meritless.
14
We note that the plaintiff never argued, and does not do so on appeal,
that she has alleged conduct that was sufficiently egregious to remove the
claims from the exclusive jurisdiction of the commission. See footnote 3 of
this opinion.