Barrett v. Hebrew Home & Hospital, Inc.

• Decision Date: 29 October 2002
• Docket Number: (AC 22231)
• Court: Connecticut Court of Appeals
• Parties: ANN BARRETT v. HEBREW HOME AND HOSPITAL, INC.

73 Conn. App. 327
807 A.2d 1075

ANN BARRETT
v.
HEBREW HOME AND HOSPITAL, INC

(AC 22231)

Appellate Court of Connecticut

Argued May 30, 2002

Officially released October 29, 2002

Flynn, Bishop and West, Js.

73 Conn. App. 328

James V. Sabatini, with whom, on the brief, was Vincent F. Sabatini, for the appellant (plaintiff)

Michael Kurs, with whom was Alan I. Scheer, for the appellee (defendant).

Opinion

WEST, J.

This appeal arises out of an action brought by the plaintiff, Ann Barrett, pursuant to General Statutes § 31-290a,¹ against her former employer, the defendant,

73 Conn. App. 329

Hebrew Home and Hospital, Inc., alleging that the defendant wrongfully terminated her employment because, prior to her discharge, she had filed claims for workers' compensation benefits or otherwise exercised her workers' compensation rights. The trial court rendered judgment in accordance with the jury's verdict in favor of the defendant. On appeal, the plaintiff claims that the court improperly (1) instructed the jury and (2) denied her motion to set aside the verdict.² We affirm the judgment of the trial court

The jury reasonably could have found the following facts from the evidence presented at trial. During 1984, the plaintiff was hired by the defendant as a certified nursing assistant (nursing assistant).³ A nursing assistant's primary responsibility, as set forth in a written job description, was to take care of patients, including, inter alia, turning and lifting, where necessary, some very debilitated and some very heavy total care residents. Throughout the period of the plaintiff's employment, the defendant maintained a written policy against the assignment of nursing assistants to permanent light duty.

On September 8, 1993, while assisting a patient, the plaintiff injured her neck and right shoulder. Subsequently,

73 Conn. App. 330

she filed a workers' compensation claim, and several months later, as a result of those injuries, she was placed on light duty for approximately one month. On February 6, 1995, the plaintiff underwent an independent medical examination, was diagnosed as having a chronic cervical sprain and was assigned a 2.5 percent permanent partial disability of the cervical spine. Thereafter, during July, 1996, the plaintiff suffered injuries to her back and leg and again sought workers' compensation benefits. As a consequence of those injuries, the plaintiff's physician indicated that she should be assigned to light duty. The plaintiff performed a light duty assignment until her dismissal by the defendant on November 25, 1996. Her employment was terminated after the defendant was advised by the plaintiff's physician that the plaintiff had a permanent lifting restriction requiring that she be assigned to permanent light duty in contravention of the defendant's written policy

Subsequently, the plaintiff brought an action claiming wrongful termination of her employment. The court instructed the jury and, in doing so, directed the jury to answer "yes" to the second of four interrogatories given to the jury to assist it in reaching its verdict.⁴

73 Conn. App. 331

Specifically, the court instructed the jury to answer "yes" that the defendant had produced evidence that its termination of the plaintiff's employment was based on a legitimate, nonretaliatory reason. The jury returned the interrogatories, having answered "yes" to the second, as directed, and "no" to the first, and returned a verdict in favor of the defendant, which the plaintiff thereafter moved to set aside. The court denied the motion and rendered judgment in accordance with the jury's verdict. The plaintiff appealed. Other facts will be discussed where relevant.

I

The plaintiff's first claim is that the court improperly instructed the jury regarding the three step, shifting burden analysis adopted by our Supreme Court in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990).⁵ As a consequence of the court's allegedly improper instruction, the plaintiff claims that she was "unquestionably harmed" such that her motion to set aside the verdict should have been granted. We disagree.

"Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and ... are not to be judged in artificial isolation from the overall charge.... The whole

73 Conn. App. 332

charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict... and not critically dissected in a microscopic search for possible error.... The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict.... We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial....

"Our standard of review on this claim is whether it is reasonably probable that the jury was misled.... The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.) Marshall v. O'Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000).

The plaintiff contends that her proposed charge, or one substantially similar to it, should have been given to the jury because her charge reviewed the elements of a prima facie case, informed the jury as to how she could have demonstrated a causal connection between the filing of a workers' compensation claim and the termination of her employment by the defendant, and it explained that she had the opportunity to show that the defendant's proffered nondiscriminatory reasons for her discharge were a pretext. The plaintiff claims that her requested charge was adequate and proper while the court's charge to the jury was deficient and

73 Conn. App. 333

misleading. Of course, the question under consideration by this court, in that regard, is not whether the trial court should have given the proposed charge to the jury, but whether the instructions that were given were correct in law, adapted to the issues, sufficient for the guidance of the jury and "whether it is reasonably probable that the jury was misled." (Internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 625, 760 A.2d 969 (2000). Furthermore, "[a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance." (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 592, 783 A.2d 1001 (2001).

To determine whether the court charged the jury in accordance with the law we look to the rule established in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53-54, which is applicable in retaliatory discharge cases, including those brought pursuant to § 31-290a. "The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. [McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)]. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of...