Eagen v. Comm'n on Human Rights & Opportunities, No. 33241.

• Court: Appellate Court of Connecticut
• Citation: 135 Conn.App. 563,279 Ed. Law Rep. 985,42 A.3d 478
• Decision Date: 22 May 2012
• Docket Number: No. 33241.
• Parties: Michael EAGEN v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

135 Conn.App. 563
42 A.3d 478
279 Ed. Law Rep. 985

Michael EAGEN
v.
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

No. 33241.

Appellate Court of Connecticut.

Argued Feb. 14, 2012.
Decided May 22, 2012.

[42 A.3d 480]

Antoria D. Howard, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Josephine S. Graff, assistant attorney general, for the appellant (plaintiff).

David M. Teed, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (named defendant).

Rose Longo–McLean, with whom, on the brief, was John R. Williams, New Haven, for the appellee (defendant Daniel Schwartz).

BEACH, BEAR and SCHALLER, Js.

BEAR, J.

[135 Conn.App. 565]The plaintiff, Michael Eagen, an attorney employed by the University of Connecticut (university) as a labor and employment specialist, appeals from the judgment of the trial court dismissing his appeal from the decision of the human rights referee (referee) from the defendant commission on human rights and opportunities, office of public hearings (office of public hearings), finding that the plaintiff, in violation of General Statutes (Rev. to 2007) § 4–61dd (b)(1),¹ had retaliated

[42 A.3d 482]

135 Conn.App. 567]against the defendant Daniel Schwartz, a former university laboratory animal veterinarian, for Schwartz' whistle-blowing activities.² On appeal, the plaintiff claims that the court erred in dismissing his appeal because (1) the referee improperly expanded the scope of § 4–61dd by interpreting the term “personnel action” to mean “employment action,” (2) there was not substantial evidence to show that the plaintiff had retaliated against Schwartz and (3) the court should have considered errors of fact made by the referee. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to our resolution of the plaintiff's appeal. The university hired Schwartz as a part-time consultant and attending veterinarian in December, 1995, and, in September, 1996, it hired him as a full-time attending laboratory animal veterinarian in the office of animal research services (animal research office). The university hired the plaintiff as its labor and employment specialist in 2005, and his duties include involvement in disciplinary matters. Over the course of Schwartz' employment with the university, he filed several complaints, both with the university and with outside agencies, concerning incidents at the animal research office, allegedly involving improper hiring practices, maltreatment of animals, unauthorized access to and improper distribution of restricted or controlled substances, unethical practices and violations of federal and state law. The plaintiff was aware of Schwartz' complaints, as was Schwartz' supervisor, Cecile Baccanale, the director of the animal research office. Many other university employees also were aware of Schwartz' complaints. In August, 2007, the plaintiff drafted a letter to Schwartz, which was signed by Gregory Anderson, the university's vice provost for research and graduate education and dean of [135 Conn.App. 568]the graduate school, stating that the university was considering disciplinary action against him on the basis of a report submitted by Baccanale.

In January, 2008, Baccanale discovered medical supplies in the office pharmacy that she thought had expired, which would have been a violation of United States Department of Agriculture regulations, and that those supplies had been placed there by Schwartz. She hoped that an investigation would lead to Schwartz and result in the termination of his employment with the university. The investigation revealed, however, that the medical supplies, although old, had not expired and that they had been in the pharmacy for at least six months.

Since April, 2008, the plaintiff had been aware that Baccanale wanted Schwartz' e-mails examined to see if he was the source of a “leak” at the animal research office. In June, 2008, the plaintiff received an e-mail from the university's provost, Peter Nicholls, advising him, and others, that Schwartz was engaging in discussions with Kim Fearney, from the university's office of audit, compliance and ethics, regarding complaints of unethical practices, mismanagement and violations of state laws or regulations.

[42 A.3d 483

In a July 29, 2008 letter, the university placed Schwartz on paid administrative leave and informed him that he was not to visit the university's Storrs campus or have contact with university personnel without obtaining prior written permission from Baccanale. He also was informed that a dismissal hearing would be conducted and that dismissal was being initiated because of “ongoing concerns regarding [his] work performance, poor judgment in carrying out [his] duties, and failure to constructively resolve problems associated with animal care.” The university also disabled his access to his university e-mail, computer and voice mail. [135 Conn.App. 569]Via correspondence dated September 16, 2008, Nicholls notified Schwartz that, effective September 19, 2008, Schwartz' employment with the university would be terminated. Nicholls also told Schwartz to make arrangements with Jay Hickey from the university's human resources department to retrieve his personal belongings from the animal research office. This correspondence imposed no restrictions on Schwartz' access to the university's Storrs campus.

On September 18, 2008, the plaintiff advised his supervisor, Donna Munroe, the associate vice president of human resources and payroll services, that he would supervise the packing and home delivery of Schwartz' personal belongings so that Schwartz did not have to come into the animal research office. Schwartz inquired about his personal belongings on at least six dates between September 22, 2008, and December 5, 2008. Schwartz was willing to pack his personal belongings himself and was willing to have security personnel present while he packed. The plaintiff initiated and drafted correspondence, which was revised and signed by attorney Keith Hood, the university's manager of labor relations, informing Schwartz that he was not permitted to visit campus facilities, such as offices, classroom buildings or laboratories, without a prior appointment and the prior approval of the appropriate administrator of the facility, but that he was free, however, to visit areas that were accessible to the public, such as the library and the auditorium.

On September 29, 2008, Schwartz went to the university's department of human resources to discuss his health care coverage and attempted to speak with Hickey about obtaining his personal belongings. Hickey was not available, and Schwartz, instead, was met by Hood, who told him that he needed to make an appointment before visiting the university, including the human resources department. Later that day, Schwartz [135 Conn.App. 570]e-mailed Hickey about obtaining his personal belongings. Also on September 29, 2008, Schwartz e-mailed Hood requesting permission to attend a seminar at the university. On September 30, 2008, Hickey told Schwartz that the animal research office would pack his belongings with a representative from human resources and that they would be delivered to the union office. Schwartz expressed concerns to Hickey and to the president of the university about his belongings. The university's policies provide that an employee separated from employment is to be reminded to collect his or her personal belongings. On October 3, 2008, Hood denied Schwartz' request to attend the university seminar.

On October 27, 2008, the university delivered to Schwartz twenty-four boxes containing personal belongings. On that date, Schwartz also was permitted to go to the animal research office to retrieve some specific personal belongings, but he was not permitted to look through or take boxes that already were packed. On October 29, 2008, Schwartz provided to his union a partial list of items that had not been returned to him. On November 10, 2008, Schwartz attended, without incident, a luncheon

[42 A.3d 484]

at which some of his former coworkers were present.

The referee found that Schwartz had never threatened any of his coworkers.

On November 19, 2008, Schwartz filed a whistle-blower retaliation complaint with the chief human rights referee of the office of public hearings pursuant to § 4–61dd, alleging that the plaintiff had retaliated against him for his whistle-blowing activities. On December 5, 2008, the university delivered to Schwartz an additional eleven boxes of his personal belongings. Schwartz, on that same day, notified his union of other items of his personal property that still had not been delivered to him. On January 15, 2009, the university [135 Conn.App. 571]delivered some additional items to Schwartz. These items had been packed by the plaintiff's administrative assistant and by a representative of the animal research office. Some of Schwartz' personal belongings were not returned to him, including United States Department of Agriculture forms that specifically had been issued and assigned to him, a letter of appreciation from the American Association of Laboratory Animal Science for Schwartz' donation of the proceeds from the sales of a book he had written and significant material he had received during his years as a member and officer of the American Association of Laboratory Animal Science.

In a February 18, 2010 decision, the referee, utilizing the burden shifting framework from the federal antidiscrimination statutes, as articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), found that the plaintiff had violated § 4–61dd by acting with retaliatory animus against Schwartz in failing to return all of Schwartz' personal belongings following the termination of his employment, and the referee ordered the plaintiff to pay to Schwartz...