Duart v. Dep't of Corr., SC 18476

• Decision Date: 31 January 2012
• Docket Number: SC 18476
• Court: Connecticut Supreme Court
• Parties: BONNIE DUART v. DEPARTMENT OF CORRECTION

BONNIE DUART v. DEPARTMENT OF CORRECTION

SC 18476

Supreme Court of Connecticut

Argued April 26, 2011

officially released January 24, 2012

Date: January 31, 2012

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Palmer, Zarella, McLachlan, Eveleigh, Vertefeuille and

Bear, Js.^*

Leon M. Rosenblatt, for the appellant (plaintiff).

Gregory T. D'Auria, solicitor general, with whom were Antoria D. Howard, assistant attorney general, and, on the brief, George Jepsen, attorney general, Richard Blumenthal, former attorney general, Margaret Q. Chapple, assistant attorney general, and Jane B. Emons, former assistant attorney general, for the appellee (defendant).

Kathleen Eldergill filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

Charles Krich filed a brief for the commission on human rights and opportunities as amicus curiae.

Opinion

McLACHLAN, J. The issue before us in this certified appeal is whether a party seeking a new trial on the basis of alleged knowing and deliberate discovery misconduct must show that the result at a new trial would likely be different.¹ The plaintiff, Bonnie Duart, appeals, upon our grant of her petition for certification, from the judgment of the Appellate Court affirming the trial court's denial of the plaintiff's motion for a new trial. She claims that the rule that we set forth in Varley v. Varley, 180 Conn. 1, 428 A.2d 317 (1980), to determine whether a new trial should be granted on the basis of allegations that the judgment was obtained through fraud—which requires, inter alia, that the movant demonstrate a substantial likelihood that the result of a new trial will be different—does not apply to a motion for a new trial on the basis of alleged discovery misconduct by the nonmoving party.² She claims, therefore, that the Appellate Court improperly applied the standard set forth in Varley in affirming the judgment of the trial court. We conclude that the Varley rule as reframed in this decision applies to motions for a new trial based on the discovery misconduct of the nonmoving party. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court set forth the following relevant facts and procedural history. ''This case arises out of an employment dispute between the plaintiff, a lieutenant with the department of correction, and the defendant, [the department of correction]. On May 28, 2002, the plaintiff filed an amended complaint against the defendant. In count one, she alleged that the defendant discriminated against her on the basis of her gender and sexual orientation. In count two, the plaintiff alleged that the defendant retaliated against her after she filed a complaint of discrimination with the commission on human rights and opportunities (commission).³

''The plaintiff alleged the following facts in support of her claims. On October 7, 1999, the plaintiff's supervisor, Duane Kelley, wrote an incident report in which he alleged that the plaintiff was dating another female correction officer, Cynthia Bruner, who was in the same chain of command as the plaintiff.⁴ Kelley published this incident report to the warden, Gurukaur Khalsa. Following the publication of the incident report, both Kelley and Khalsa began making false or grossly exaggerated allegations against the plaintiff. They harassed her about her hair, despite her continual compliance with the rules governing hair length, and, at one point, Khalsa stated to the plaintiff that if she did not know how to put her hair up properly, she should get one of her many women friends to help her. The plaintiff understood this statement to be in reference to her sexual orientation. In addition, the plaintiff was accused falsely of being disrespectful to Kelley and was trans-ferred to the third shift despite a medical condition that prevented her from working that particular shift.

''On April 24, 2000, the plaintiff filed her first complaint of discrimination with the commission and the federal Equal Employment Opportunity Commission. After she filed the complaint, the discrimination and harassment by Kelley and Khalsa became even more severe, as evidenced by the following events: (1) the plaintiff was suspended for five days under the pretext of not complying with the hair regulations and for supposed disrespectful behavior to Kelley; (2) the plaintiff received her first unsatisfactory evaluation and her pay raise was taken away; (3) the plaintiff was accused falsely of failing to follow procedures regarding sick days, scheduling training and storing facility keys; (4) the plaintiff was denied vacation time; (5) the plaintiff was demoted from her position of lieutenant; and (6) the plaintiff was transferred by another supervisor, Wayne Valade, to a different correctional facility, which resulted in a decrease in pay, authority and prestige. The plaintiff also alleged that both Valade and Kelley had a practice of harassing female officers.'' Duart v. Dept. of Correction, 116 Conn. App. 758, 760-62, 977 A.2d 670 (2009).⁵

A jury trial commenced on July 14, 2004. On July 27, 2004, the jury issued a verdict denying the plaintiff's claims of discrimination on the basis of gender, race and sexual orientation. On August 6, 2004, the plaintiff filed a motion in arrest of judgment for extrinsic causes, to set aside the verdict and for a new trial. In support of her motion, the plaintiff relied on the defendant's failure to disclose an anonymous note accusing the plaintiff of being in a relationship with Bruner, developments in the defendant's investigation of a complaint by Lieutenant Catherine Osten that Kelley and Valade had retaliated against her, and a 2002 discrimination complaint filed by Lieutenant Lisa Jackson against Osten and Kelley.⁶ Assuming, without deciding, that the defendant had engaged in discovery misconduct, the trial court concluded that the evidence at issue was ''merely cumulative'' of evidence presented at trial and, as such, ''would not have produced a different result.'' The court applied the ''result altering'' standard as set forth in Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transportation Co., 953 F.2d 17, 21 (1st Cir. 1992) (Teamsters), which requires the movant to show that it ''possesses a potentially meritorious claim or defense which, if proven, will bring success in its wake,'' and denied the plaintiff's motion for a new trial.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the defendant's discovery misconduct had ''so perverted the process'' that it had deprived her of the opportunity to fully and fairly discover evidence, and that consequently shewas entitled to a new trial. She argued that the trial court improperly applied the ''result altering'' standard set forth in Teamsters, and should have applied the ''substantial interference'' test set forth in Anderson v. Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988), which requires the movant to show that ''the misconduct substantially interfered with its ability fully and fairly to prepare for, and proceed at, trial.''

The Appellate Court upheld the trial court's decision by applying the ''result altering'' standard as articulated in Varley for a motion for a new trial grounded upon evidence of fraud, rather than by applying First Circuit case law. The Appellate Court held that, although the trial court's memorandum of decision did not expressly set out the standard established in Varley, it had ''effectively applied the correct standard'' in determining that, even if the defendant had disclosed the evidence at issue, the evidence was unlikely to produce a different result. Duart v. Dept. of Correction, supra, 116 Conn. App. 772-73. This certified appeal followed.

The plaintiff argues that the Varley rule is inapposite because discovery misconduct is distinct from misconduct at trial, and she should not be required to prove that the result of a new trial will be different. Instead, she suggests that the court should adopt the standard articulated by the First Circuit in Anderson v. Cryovac, Inc. , supra, 862 F.2d 926, or by this court in Ramin v. Ramin, 281 Conn. 324,915 A.2d 790 (2007). In response, the defendant contends that the Appellate Court properly concluded that the ''result altering'' standard in Varley applies to both claims of fraud and discovery misconduct. We agree with the defendant.

Practice Book § 16-35 authorizes motions for a new trial.⁷ Historically, this court has recognized the difficulty of articulating a ''precise rule'' applicable to all motions for new trials for verdicts...