Kovachich v. Department of Mental Health and Addiction Services, 072820 CTCA, AC 41976

Docket Nº:AC 41976
Opinion Judge:ALVORD, J.
Party Name:VIRLEE KOVACHICH v. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES
Attorney:Clare Kindall, solicitor general, with whom, on the brief, were William Tong, attorney general, and Matthew F. Larock and Nancy A. Brouillet, assistant attorneys general, for the appellant-appellee (defendant). Jacques J. Parenteau, with whom was Magdalena Wiktor for the appellee-appellant (plain...
Judge Panel:Alvord, Moll and Norcott, Js.
Case Date:July 28, 2020
Court:Appellate Court of Connecticut
 
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VIRLEE KOVACHICH

v.

DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES

No. AC 41976

Court of Appeals of Connecticut

July 28, 2020

Argued December 5, 2019

Procedural History

Action to recover damages for, inter alia, alleged employment discrimination, and for other relief, brought to the Superior Court in the judicial district of New London, where the matter was tried to the court, Hon. Joseph Q. Koletsky, judge trial referee; judgment for the plaintiff, from which the defendant appealed and the plaintiff cross appealed. Reversed; new trial.

Clare Kindall, solicitor general, with whom, on the brief, were William Tong, attorney general, and Matthew F. Larock and Nancy A. Brouillet, assistant attorneys general, for the appellant-appellee (defendant).

Jacques J. Parenteau, with whom was Magdalena Wiktor for the appellee-appellant (plaintiff).

Michael E. Roberts, Scott Madeo, and Kimberly A. Jacobsen filed a brief for the Connecticut Commission on Human Rights and Opportunities as amicus curiae.

Alvord, Moll and Norcott, Js.

OPINION

ALVORD, J.

The defendant, Department of Mental Health and Addiction Services, appeals from the judgment of the trial court rendered following a court trial in favor of the plaintiff, Virlee Kovachich. The plaintiff filed a cross appeal. On appeal, the defendant claims that the court improperly (1) admitted into evidence settlement communications between the parties, (2) found that the defendant violated the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-60 et seq., by providing insufficient accommodations to the plaintiff and failing to engage in the interactive process required under the act, (3) precluded the defendant from cross-examining the plaintiff with deposition testimony that was changed through an errata sheet, and (4) determined that hearsay statements by any state employee, including statements from the plaintiff's union representatives, were admissible against the defendant as admissions by a party opponent.1 On cross appeal, the plaintiff claims that the court improperly denied both her posttrial request to file a second amended complaint to conform to the proof at trial and motion to open the judgment.[2]We agree with the defendant's first, third, and fourth claims and, accordingly, reverse the judgment of the trial court.3

The following facts, as found by the trial court or otherwise undisputed, and procedural history are relevant to our resolution of this appeal. The plaintiff worked as a licensed practical nurse 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 non-allergic 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 ‘‘HEPA filter for the office.''

In an April 14, 2011 letter, Tommy Wilson, the chairperson of the defendant's review committee pursuant to the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., notified the plaintiff that ‘‘the . . . committee approves your request for a reasonable accommodation.'' The letter set forth the following as ‘‘the committee's final reasonable accommodations'': ‘‘1. Upon admission to the brief care unit 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 brief care unit 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 brief care unit is scent-free. 4. The agency 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 brief care office area. The nurse's station is 294 square feet and the entire unit is 8470 square feet.'' Following the approval of the plaintiff's accommodations, some employees did not comply with the scent-free working environment designation. In a February 1, 2012 letter to Cheryl Jacques, the director of SMHA, 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 ensuring that she is adequately protected in the workplace.'' The plaintiff's counsel requested a meeting to discuss the plaintiff's concerns and potential accommodations that could be made to address those concerns. A meeting was held on April 3, 2012. The plaintiff, her counsel, Wilson, and Human Resources Director Theresa Tiska attended. The attendees discussed the plaintiff's requests that the defendant include a notice 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.

On April 13, 2012, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities (commission), alleging that she was denied reasonable accommodations on the basis of a disability. The commission issued a release of jurisdiction to sue on September 9, 2013.[4] On September 30, 2013, the plaintiff commenced the present action.5 In count one of the operative complaint filed March 4, 2015, the plaintiff alleged that the defendant had discriminated against her in the terms and conditions of her employment by failing to provide reasonable accommodations for the plaintiff's disability and by failing to engage in a good faith interactive process in violation of the act. The plaintiff alleged that she continued to suffer adverse incidents caused by coworkers' violations of the scent-free working environment designation. She alleged that the defendant made no serious effort to educate the workforce and that ‘‘[t]he lack of educational efforts has led to misunderstandings and has prevented voluntary compliance with the restriction.'' She alleged that the defendant refuses to enforce Work Rule 13, which prohibits intentionally interfering with the productivity of another employee, when an employee intentionally interferes with the plaintiff's ability to perform her work by knowingly wearing a chemical-based fragrance. She further alleged that the defendant had ‘‘failed to assist its own managers in the implementation of the fragrance free restriction, including [a] policy drafted in April, 2011, to the frustration of on line managers and union delegates responsible for the safety of the employees they work with day-to-day.'' Lastly, the plaintiff alleged that the defendant ‘‘failed to engage in a good faith interactive process designed to solve the reasonable accommodation problem by failing to meet with [the] plaintiff and her representatives and rejecting all of [the] plaintiff's proposals without offering alternative solutions.'' She alleged that she ‘‘has suffered the loss of wages and benefits, including significant compensatory and sick time, and has suffered emotional distress, loss of enjoyment of life and harm to her reputation.''

In count two, the plaintiff alleged that the defendant ‘‘has retaliated against [her] for filing a complaint of disability discrimination, has failed to engage in a good faith interactive process, and has failed to accommodate her disability.'' She further alleged that she had been constructively discharged because of her disability. She alleged that the defendant retaliated against her ‘‘for opposing the discriminatory conduct [to] which she was subjected by not providing the accommodations sought leading to the constructive discharge'' of the plaintiff. She alleged that as a result of the defendant's conduct, she ‘‘has suffered damages including, but not limited to, loss of wages, loss of enjoyment of life, emotional distress and attorney's fees and costs.'' On December 2, 2015, the defendant filed an answer and special defenses. The plaintiff filed her reply on November 30, 2016.[6]

The matter was tried to the court, Hon. Joseph Q. Koletsky, judge trial referee, in March and April, 2018. On April 20, 2018, the court issued its oral decision rendering judgment for the plaintiff, determining that the plaintiff had proven her allegations of violations of the act. The court found ‘‘that the plaintiff was deprived of $3800 of additional pension income, finding it more probable than not the plaintiff would have worked for two more years but for the wrongful actions of the defendant.'' The court further found that the plaintiff was constructively discharged. It awarded the plaintiff $125, 000 in damages for ‘‘emotional distress caused by the actions of the defendant . . . .''

On April 20, 2018, the plaintiff filed a motion for attorney's fees, and the defendant filed an objection on July 17, 2018. The plaintiff filed a memorandum in support of her motion for attorney's fees on July 25, 2018, and the defendant filed an objection on August 22, 2018. At the conclusion of oral argument on August 23, 2018, the court orally granted the motion, awarding the plaintiff attorney's fees in the amount of $415, 389.50. The plaintiff subsequently filed a motion to open the judgment and a request for leave to amend her complaint to conform to the proof at trial, both of which were denied. The defendant appealed, and...

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