Hammond v. City of Bridgeport

Decision Date18 December 2012
Docket NumberNo. 33491.,33491.
Citation58 A.3d 259,139 Conn.App. 687
CourtConnecticut Court of Appeals
PartiesMark HAMMOND v. CITY OF BRIDGEPORT et al.

OPINION TEXT STARTS HERE

Frank A. May, Glastonbury, with whom, on the brief, was Bridget M. Ciarlo, for the appellants (defendants).

Richard H. Greene, for the appellee (plaintiff).

DiPENTIMA, C.J., and BEACH and FOTI, Js.

BEACH, J.

The defendants, the city of Bridgeport (city) and its insurer Berkley Administrators of Connecticut, Inc., appeal from the finding and award of the workers' compensation commissioner for the fourth district (commissioner) rendered in favor of the plaintiff, Mark Hammond, on his discriminatory discharge claim. On appeal, the defendants claim that the commissioner erred in (1) finding that the city discriminated against the plaintiff, (2) denying their motion to reopen award, consider newly discovered evidence, reconsider/reissue finding and award and for a new trial/ formal” with attachments, (3) denying proposed corrections in their motion to correct the finding and award, (4) deciding issues and ordering damages beyond the scope of the issue submitted and agreed to by the parties and (5) interpreting and applying alleged rights under a collective bargaining agreement. We affirm the commissioner's decision.

Following a hearing on July 7, 2010, at which the plaintiff was the only witness to testify, the commissioner issued his decisionon April 20, 2011, in which he set forth the following relevant facts.1 The plaintiff regularly worked for the city's roadway division in the public works department. While working in the sanitation division of the city's public works department, the plaintiff injured his right shoulder on December 10, 2007. He was temporarily totally disabled as of February 28, 2008, the date of the first of three surgeries that were paid for by the workers' compensation policy of the city, and temporarily partially disabled as of April 15, 2009. The city sent the plaintiff a letter dated February 23, 2009, in which Jodie L. Paul, the labor relations officer for the city, informed the plaintiff: “Our records indicate that you have been on leave from your position as a Maintainer I (Grade I) with the [c]ity ... for over twelve (12) months, specifically since December 10, 2007. Please know that your collective bargaining agreement contains a twelve (12) month leave limitation. If you are presently unable or unwilling to return to the position you held prior to the commencement of your leave on a full-time basis, you will be deemed to have resigned from your position effective Friday, March 6, 2009.” The plaintiff was not, however, on a leave of absence from December 10, 2007, through January 30, 2008. The city did not inform the plaintiff that his leave of absence had been calculated from December 10, 2007, until the city sent him the aforementioned letter dated February 23, 2009. The city's leave of absence policy is contained in article 37 of its collective bargaining agreement with the plaintiff's union, which provides in relevant part: “The department head, with the approval of the [d]irector of [l]abor [r]elations, may grant an employee a leave of absence without pay for a period not to exceed one year, except that a six (6) month hardship extension may be granted with the approval of the [d]irector of [l]abor [r]elations.” 2 Paul sent the plaintiff another letter dated April 30, 2009, granting the plaintiff's request for a six month extension of a leave of absence and informing him that the extension would expire on June 12, 2009, and that if he was unable or unwilling to return to his full duty position as of June 15, 2009, he would be deemed to have voluntarily resigned. Paul then sent the plaintiff a letter dated June 15, 2009, to inform him that he was deemed to have voluntarily resigned from his position of “Maintainer I (Grade I) with the city as a result of the one year leave limitation and six month extension he was granted pursuant to the collective bargaining agreement. The plaintiff received temporary total disability benefits from January 31, 2008, until he was terminated from employment on June 15, 2009.

The commissioner applied a three-pronged test in order to determine whether the city had violated General Statutes § 31–290a (a), which provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.” The commissioner discussed the burden shifting test, which is stated in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53–54, 578 A.2d 1054 (1990). “The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination.... In order to 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 fact-finder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” (Citations omitted; internal quotation marks omitted.) Id.

The commissioner found that the plaintiff met his burden of proving by the preponderance of the evidence a prima facie case of discrimination. The commissioner found that [the plaintiff] was accused by a supervisor of faking his shoulder injury and, despite being ... given a light duty assignment in the [r]oadway division until his February 28, 2008 surgery, [he] often performed full duty tasks such as shoveling sand.” 3 The commissioner then found that the city satisfied its burden under the second prong by introducing its collective bargaining agreement and the letters from Paul into evidence, because the agreement and letters demonstrated a legitimate, nondiscriminatory reason for the city's actions. As to the third prong under Ford, the commissioner found that the plaintiff demonstrated that the city's contention that the termination of employment procedure was uniformly applied to all employees lacked credibility and set forth the following as support for his finding: “The fact that the [c]ity attempted to begin the [twelve] month leave of absence on the day of injury despite the claimant having continued to work for almost three months afterward, and [t]he fact that the [c]ity attempted to apply its neutral [twelve] month termination requirement more than [fourteen] months after it contended the [twelve] month leave of absence began, and [t]he fact that the [c]ity attempted to apply its neutral [six] month extension policy over the next [six] weeks rather than [six] months.” Accordingly, the commissioner concluded that the city discriminated against the plaintiff in violation of § 31–290a.4 The commissioner ordered the city to reinstate the plaintiff to his last full-time position in the roadway division of the department of public works and to pay the plaintiff back wages from the date of termination to the date of the decision. The commissioner further ordered the city to reinstate to the plaintiff all sick pay, vacation pay, pension contributions and pension service from the date of termination to the date of the decision. Finally, the commissioner awarded the plaintiff reasonable attorney's fees to be paid by the city.

On May 4, 2011, the defendants filed a motion to correct the finding and award, in which it proposed sixteen corrections and sixty-four additional findings. On the same date, the defendants also filed a motion to reopen award, consider newly discovered evidence, reconsider/reissue finding and award and for a new trial/formal” (motion to open the award and for a new trial). They sought to have the commissioner consider job descriptions for the relevant time period, a physical demand analysis of the maintainer position in the roadway division and a decision dated November 22, 2010, of the state board of mediation and arbitration dismissing the plaintiff's grievance concerning his termination by the city. The commissioner ordered eight corrections and denied the remainder of the defendants' motion to correct. The commissioner also denied in its entirety the defendants' motion to open the award and for a new trial. The defendants have appealed from the commissioner's April 20, 2011 finding and award, the May 9, 2011 ruling denying the defendants' motion to correct and the May 9, 2011 ruling denying the defendants' motion to open the award and for a new trial.5

I

The defendants first claim that the commissioner erred in concluding that the city discriminated against the plaintiff in violation of § 31–290a. We disagree.

We first set forth the standard of review. A claim of employment discrimination brought pursuant to § 31–290a is evaluated under the Ford burden shifting analysis, as cited previously. “To establish a prima facie case of discrimination under § 31–290a, the plaintiff must show that [he] was exercising a right afforded [him] under the [Workers' Compensation Act (act), General Statutes § 31–275 et seq.] and that the defendant discriminated against [him] for exercising that right.... [T]he plaintiff must show a causal connection between exercising [his] rights under the act and the alleged discrimination [he] suffered. Implicit...

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  • Weaver v. McKnight
    • United States
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    • 2 Septiembre 2014
    ...to admit expert testimony and, unless the trial court's decision is unreasonable, made on “untenable grounds”; Hammond v. Bridgeport, 139 Conn.App. 687, 701, 58 A.3d 259 (2012); or involves “a clear misconception of the law,” we will not disturb its decision. (Internal quotation marks omitt......
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    ...treatment, or through evidence such as disparate treatment. . . or directly through evidence of retaliatory animus." Hammond v. Bridgeport, 139 Conn. App. 687, 696 (2012), cert. denied, 308 Conn. 916 (2013) (internal marks omitted; emphasis in original). "Without some proof of an improper m......
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