Dickman v. Univ. of Conn. Health Ctr.

• Decision Date: 19 January 2016
• Docket Number: AC 37251
• Court: Connecticut Court of Appeals
• Parties: PRISCILLA DICKMAN v. UNIVERSITY OF CONNECTICUT HEALTH CENTER

PRISCILLA DICKMAN v. UNIVERSITY OF CONNECTICUT HEALTH CENTER

AC 37251

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 16, 2015

January 19, 2016

DiPentima, C. J., and Gruendel and Sheldon, Js.

(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 general, 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' Compensation Commissioner for the first district (commissioner) dismissing her General Statutes § 31-290a¹ discriminatory discharge claim against the defendant, the University 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 physical 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, depositiontestimony was received from one additional witness, and more than 100 exhibits were admitted into evidence. The commissioner found in favor of the defendant and dismissed the plaintiff's discriminatory discharge claim. This appeal followed.

We set forth the relevant facts found by the commissioner. 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 number 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. Ultimately, 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 nonbusiness related telephone calls at work and was absent from her work area when she should have been working. 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 commission found that the plaintiff had violated General Statutes § 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 capacities 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 constructive discharge. . . . Pursuant to our case law, when a [plaintiff] establishes a prima [facie] case, the burden shifts to the [defendant] to rebut this presumption of discrimination by producing evidence of legitimate nondiscriminatory reasons for its action. . . . I find and conclude that based upon the totality of the evidence, the [defendant] has successfully met its burden." 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 [plaintiff's] § 31-290a claim is dismissed."

On appeal, the plaintiff challenges the commissioner's factual findings, contending that they were clearly erroneous. Specifically, she claims that the commissioner should have found that the defendant created a hostile work environment by not making reasonable accommodations for her and by pursuing criminal andcivil 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 applicable 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 commissioner'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 evidence that gives rise to an inference of unlawful discrimination. . . . 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 rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the [factfinder] . . . 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 constructive discharge." His conclusion rested on the totality of the evidence, namely, the "actions, statements, and e-mails made and authored by various individualsin 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 discrimination.

The evidence before the commissioner supported his finding that the defendant's actions were nondiscriminatory. First, the current administrative director of the pathology and laboratory medicine and a former director 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 accommodate and make the necessary changes to the plaintiff...