Kovachich v. Dep't of Mental Health & Addiction Servs.

Docket NumberSC 20518
Decision Date27 September 2022
Citation344 Conn. 777,281 A.3d 1144
Parties Virlee KOVACHICH v. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES
CourtConnecticut Supreme Court

Wesley W. Horton, Hartford, with whom was Jacques J. Parenteau, New London, for the appellant (plaintiff).

Clare Kindall, solicitor general, with whom, on the brief, was William Tong, attorney general, for the appellee (defendant).

Michael E. Roberts, human rights attorney, filed a brief for the Commission on Human Rights and Opportunities as amicus curiae.

Robinson, C. J., and McDonald, Mullins, Kahn, Ecker and Keller, Js.

ECKER, J.

Following a bench trial, the trial court rendered judgment for the plaintiff, Virlee Kovachich, finding that the defendant, the Department of Mental Health and Addiction Services, had discriminated against her during the course of her employment by failing to provide reasonable accommodations for her disability, in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60 (b) (1).1 The court also found that the defendant had retaliated against the plaintiff for filing a complaint with the Commission on Human Rights and Opportunities (commission) by constructively discharging her from her employment, in violation of § 46a-60 (b) (4). The Appellate Court reversed the judgment of the trial court on the ground that it improperly had admitted into evidence written settlement communications in violation of § 4-8 of the Connecticut Code of Evidence,2 which caused substantial prejudice to the defendant.

See Kovachich v. Dept. of Mental Health & Addiction Services , 199 Conn. App. 332, 352–53, 236 A.3d 219 (2020). The Appellate Court also identified other evidentiary errors that were likely to arise on remand. See id., at 353–67, 236 A.3d 219.

We granted the plaintiff's petition for certification to appeal to determine whether (1) the written communications improperly were admitted into evidence under § 4-8 of the Connecticut Code of Evidence, (2) the defendant suffered substantial prejudice as a result, and (3) any of the other evidentiary errors identified by the Appellate Court were harmful. See Kovachich v. Dept. of Mental Health & Addiction Services , 335 Conn. 958, 958–59, 239 A.3d 320 (2020). We conclude that the trial court did not abuse its discretion in admitting the written communications into evidence and that the other evidentiary errors identified by the Appellate Court were harmless. Accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following facts, which we supplement as necessary with additional undisputed facts. "The plaintiff worked as a licensed practical nurse [LPN] for the defendant and primarily was assigned to the Brief Care Unit of the Southeastern Mental Health Authority (SMHA). At some point during her employment with the defendant, the plaintiff began experiencing reactions to scents. On January 24, 2011, the plaintiff submitted to the defendant a medical provider report from her physician, Doron J. Ber, which stated that she ‘has allergic and [nonallergic] rhinitis

and asthma. These conditions are intermittent, but can be 100 [percent] debilitating.’ The plaintiff requested from the defendant accommodations in the form of a [scent-free] work environment’ and a [high efficiency particulate air (HEPA)] filter for the office.’ " Kovachich v. Dept. of Mental Health & Addiction Services , supra, 199 Conn. App. at 334–35, 236 A.3d 219.

In an April 14, 2011 letter, Tommy Wilson, the chairperson of the defendant's ADA review committee—which is tasked with reviewing requests for accommodation pursuant to the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. —notified the plaintiff that the review committee had determined that she has "a qualifying disability under [the] ADA" and that her request for a reasonable accommodation had been approved. The review committee provided the plaintiff with the following reasonable accommodations: "1. Upon admission to the [B]rief [C]are [U]nit all clients are to turn over all aerosol sprays to be locked up and inventoried by staff with their personal belongings. Upon being discharged from the [B]rief [C]are [U]nit all inventoried aerosol sprays along with their belongings are to be returned. 2. That the scent-free working environment signs remain up on the unit and that all staff is notified of the scent-free environment and what that means. 3. To notify any overtime staff that the [B]rief [C]are [U]nit is scent-free. 4. The [defendant] is to provide a working air filtration system with a HEPA filter; the filter system can be the existing filter system or a portable unit that is able to filter the entire [B]rief [C]are office area. The nurse's station is 294 square feet and the entire unit is 8470 square feet."

Despite these accommodations, some employees failed to comply with the scent-free working environment designation.3 As a result, the plaintiff was exposed to scents while working at SMHA, which exacerbated her rhinitis

and asthma and, on multiple occasions, triggered the need for emergency medical treatment. To avoid adverse reactions when she detected a scent in the workplace, the plaintiff often would operate fans to disperse the scent, wear a mask, or remove herself from the scented environment by seeking refuge in the scheduler's office.

The plaintiff retained counsel, who sent a letter dated February 1, 2012, to Cheryl Jacques, the director of SMHA. In the letter, the plaintiff's counsel sought "to engage in an interactive process with respect [to] the provision of reasonable accommodations for [the plaintiff's] disability and [to] ensur[e] that she is adequately protected in the workplace."4 The plaintiff's counsel informed Jacques of the "continued exposure that [the plaintiff] has experienced as a result of her fellow [employees’] failing to comply with [fragrance free] requirements in the workplace, whether [wilfully] or mistakenly," and requested "a meeting to discuss a number of concerns and potential accommodations that can be made to address those concerns."

A meeting was held on April 3, 2012, attended by the plaintiff, her counsel, Wilson, and Human Resources Director Theresa Tiska. The attendees discussed the plaintiff's requests that the defendant provide coworkers with "a notice [of the fragrance free requirement] on the Brief Care Unit overtime sign-up sheet, provide educational materials to coworkers, and take additional action to enforce the scent-free working environment." Kovachich v. Dept. of Mental Health & Addiction Services , supra, 199 Conn. App. at 336, 236 A.3d 219. As a result of this meeting, a notice was placed on the overtime sign-up sheet informing employees that the Brief Care Unit was scent-free. With limited exceptions, however, no additional measures were taken to educate the workforce or to enforce the scent-free designation by means of workforce discipline.5

On April 13, 2012, the plaintiff filed a complaint with the commission, alleging that she had been "denied reasonable accommodation on the basis of a disability ...." The commission thereafter issued a release of jurisdiction, and, in October, 2013, the plaintiff commenced the present action alleging disability discrimination in violation of § 46a-60 (b) (1).

On November 1, 2013, Catherine Girard became the behavioral health clinical manager of the Brief Care Unit at SMHA. At the instruction of Jacques, Girard asked the plaintiff's supervisors, Sharon Reilly and Douglas Fontaine, to provide "a detailed synopsis of the dates and times the [plaintiff] has left the [Brief Care] [U]nit and was unable to work any period of time; over the past two weeks, three months, sixth months ... with as much specificity as possible." After compiling this data and speaking to more than "fifteen employees throughout the agency ... to gather additional data outside of Brief Care" regarding the plaintiff, Girard asked Jacques to transfer the plaintiff from the Brief Care Unit.

Girard subsequently informed the plaintiff that she was expected to follow updated "[s]cent [e]xposure [p]rotocol[s] ...." The updated scent exposure protocols provided: "1. Shift report attendance in the [c]hart room with the [t]eam is required, without exception. 2. If a scent exposure occurs and you are too ill to continue working in your role as LPN, then you are expected to go home. Taking refuge in the [s]cheduler's office is no longer permissible. 3. The [h]ead [n]urse or [c]harge [n]urse must be informed of the reason why you are leaving a shift early. This information will then be conveyed by the nurse via [voicemail] to ... Girard .... 4. Use of fans on [the] Brief Care [Unit] is no longer permissible for scent exposures, as this creates temperature discomfort for clients and employees on the unit."

In an email dated February 7, 2014, the plaintiff informed Wilson that the defendant was "refusing to provide [the] reasonable accommodations for [her] disability [that] were previously provided" and requested "the following reasonable accommodations for [her] disability: 1. The use of a fan when there is a scent that affects [her]. 2. [Access] to a safe room where [she] can work away from others if needed. 3. Overtime makeup if [she has] to leave due to a scent exposure when on duty or if [she has] to cancel overtime due to a scent illness. 4. Mandating [scent-free] classes, providing [her] with the same educational opportunities as others. 5. Enforcement of the [scent-free] restriction on [the] Brief Care [Unit]. 6. A portable HEPA filter for the chart office. 7. Allowing [her] to participate in report by use of speaker phone from a [scent-free] room. 8. An exemption from deployment off [the] Brief Care [Unit] to other programs should the need arise." The plaintiff stated that she was "happy to meet with the [ADA review committee] with [her] attorney to discuss." In...

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