Opinion
No. (X02) CV 00-0159421-S
November 22, 2004
RULING ON POST-VERDICT MOTIONS.
The jury returned verdicts in favor of the three plaintiffs on both the statutory count, which arose under General Statutes § 31-51q, and the breach of contract count. It awarded damages to plaintiff Arthur Rosenfield as follows: past economic losses — $472,500; future economic losses — $1,960,000; loss of life's enjoyment — $250,000; loss of reputation — $1,000,000; interest — $165,375.00; and punitive damages to be determined by the court. The jury awarded damages to plaintiff Morton Burrell as follows: past economic losses — $107,000; future economic losses — $240,000; emotional distress — $250,000; loss of life's enjoyment — $250,000; loss of reputation — $500,000; interest — $48,150; and punitive damages to be determined by the court. Finally, the jury awarded damages to plaintiff Robert Smith as follows: past economic losses — $8,000; emotional distress — $125,000; loss of life's enjoyment — $125,000; interest — $800; and punitive damages to be determined by the court. The defendant, Yale University, moves on a multitude of grounds for judgment notwithstanding the verdict, to set aside the verdict, and for a remittitur. The court addresses the following issues in detail: whether the court should enter judgment notwithstanding the verdict based on the plaintiffs' alleged failure to exhaust administrative remedies; whether the court erred in failing to charge the jury on the theory of constructive discharge; whether the evidence was sufficient to support, or whether the court should grant a remittitur of, the award of noneconomic damages to the plaintiffs for emotional distress; and whether the court should grant a remittitur of the interest awarded to plaintiffs Burrell and Rosenfield.
I A CT Page 17621
Not until the end of the trial in this case, in late July 2004, did Yale press the claim that the court lacks subject matter jurisdiction due to the plaintiffs' failure to exhaust the administrative remedies and internal complaint procedures set forth in the Yale faculty handbook. Yale attempts to contemporize the claim by grounding it in our Supreme Court's decision in Neiman v. Yale University, 270 Conn. 244, 851 A.2d 1165 (2004), which interpreted the same handbook to require exhaustion of administrative remedies, and which was officially released on July 20, 2004. The plaintiffs understandably object on the ground that Yale has waived this claim or should be estopped from asserting it based on its delay.
The history of this claim does not reflect favorably on Yale. The plaintiffs filed this case on January 7, 2000. Yale filed no motion to dismiss. Over the next four years of often contentious litigation, Yale did not raise the claim of failure to exhaust administrative remedies. Yale first alleged it in a special defense filed with its answer on June 2, 2004, at the beginning of jury selection. Yale did not introduce evidence in support of this special defense at trial. Nor did Yale request a jury instruction on this special defense. Yale then raised exhaustion in its July 16, 2004 motion for a directed verdict at the close of evidence and cited the Neiman case, which had just become available on the judicial branch web site. Yale now renews the claim as part of its motion for judgment notwithstanding the verdict.
Yale has no valid excuse for not raising exhaustion earlier. Yale surely does not claim ignorance of the law. The doctrine of exhaustion of remedies is not new or novel. Yale in fact states in its brief that "[e]ven before Neiman, faculty plaintiffs took care to exhaust internal university remedies before filing suit, and the courts routinely took note of that fact." (Defendant's brief, pp. 25-26 n. 12 (citing, e.g., Daley v. Wesleyan University, 63 Conn.App. 119, 125, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001)). Indeed, as the defendant in Neiman, Yale itself raised exhaustion in a motion to dismiss in that case filed on January 29, 2001. And there is no dispute that the same law firm represented Yale in both Neiman and this case.
On this record, the court might well find that Yale has waived the ground of exhaustion of remedies, or should be barred by judicial estoppel from raising it. See generally Gagne v. Vaccaro, 80 Conn.App. 436, 445-48, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004) (waiver); SKW Real Estate Ltd. Partnership v. Mitsubishi Motor Sales of America, Inc., 56 Conn.App. 1, 8 n. 6, 741 A.2d 4 (1999), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000) (judicial estoppel). In the analogous appellate context, the Appellate Court has "repeatedly indicated [its] disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds for appeal." (Internal quotation marks omitted.) Gagne v. Vaccaro, supra, 80 Conn.App. 448. The situation is the same here. A civil lawsuit, especially one as long and expensive as this one, is not some sort of card game in which a player can withhold a trump card until it is too late for his opponent to respond.
It is most unfortunate that Yale has waited until after the trial to press the exhaustion issue. As the Neiman Court noted in the context of university tenure decisions, one of the reasons for the exhaustion requirement is that "academic institutions themselves are best suited to be the original forum for these types of disputes." Neiman, supra, 270 Conn. 255. Having observed the trial of this case for six weeks, the court concurs that a jury trial is not necessarily the best means of resolving this type of dispute. Although the jury in this case was attentive and conscientious, a jury of lay people cannot possibly come to know the participants, understand the issues, and propose solutions as well as those in the university, especially those in the complicated world of academic radiology. Yale's failure to raise the ground of exhaustion in a more timely manner has deprived itself of what possibly might have been a more accurate resolution of this dispute, as well as a speedier and much less expensive one.
The court does not agree with the plaintiffs' suggestion that Neiman is distinguishable because it addresses tenure decisions that are not at issue here. The Yale faculty handbook provides for one set of internal review procedures for "[d]ecisions not to reappoint or promote . . ." and a separate set of procedures for "issues other than reappointment or promotion." (Trial exhibit 1, Section III, subsections L and M, pp. 16-21.) The reasons stated above for invoking these procedures apply with equal force to both types of decisions. Although, as plaintiff Rosenfield observes, the examples cited in the handbook of disputes falling within the category of "issues other than reappointment or promotion" all involve discrimination ("e.g., discrimination on the basis of race, color, religion, sex, sexual orientation, handicap, age or national or ethnic origin"), the plaintiffs cannot credibly maintain that, if Yale would entrust disputes involving such difficult and sensitive matters as racial discrimination to internal review procedures, it would not entrust disputes involving its freedom of expression policy. This point is especially true given that the freedom of expression policy derives from the very same handbook.
Yale observes that its handbook calls for the filing of a complaint or grievance with the dean or the provost within forty-five days of the final action giving rise to the complaint (Exhibit 1, Section III.L.3.b, p. 18), and argues that, even if Yale had raised this matter in a pretrial motion to dismiss in 2000, it would have been too late for plaintiffs Burrell and Smith to file timely grievances concerning their 1998 discipline. The handbook does, however, provide that the dean may extend the time for filing a grievance if special circumstances warrant it, (Exhibit 1, Section III.L.3.b, p. 18.) The court is aware that Yale will not grant an extension of time to file a grievance now, because Yale stated at oral argument that it will not consent to a stay of the case while the plaintiffs complete their administrative remedies. But the court does not know whether Yale would have granted an extension in 2000, four years before Yale prevailed in the Supreme Court in the Neiman case. Further, Yale's introduction of this issue in 2000 might have alerted plaintiff Rosenfield, whose discipline did not occur until 2001, to the urgency of exhausting administrative remedies which, as discussed below, he did not completely exhaust. Thus, the court does not agree that Yale's failure to raise this issue in a pretrial motion to dismiss made no difference in the course of this case.
The court, however, cannot hold that Yale has waived exhaustion or can be estopped from asserting it. The Neiman Court clearly identified the failure to invoke internal grievance remedies in a faculty handbook as an exhaustion of remedies issue and reiterated the familiar rule that "the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction . . ." (Internal quotation marks omitted.) Id., 251. And it is well settled that a party cannot waive subject matter jurisdiction or be estopped from asserting its absence, at least before a judgment becomes final. See Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004); Daley v. Hartford, 215 Conn. 14, 27-29, 574 A.2d 194, cert. denied, 498 U.S. 982 (1990). The court is bound by the Supreme Court's rulings in that regard and therefore must conclude that, even at this late date, Yale is entitled to challenge the court's subject matter jurisdiction due to the plaintiffs' alleged failure to exhaust administrative remedies.
The court does, however, question whether this matter truly implicates exhaustion of remedies and subject matter jurisdiction. One of the cases cited — using the "cf." signal — by the Neiman Court in support of its holding that the exhaustion doctrine applies when faculty handbooks provide for internal grievance procedures was McDowell v. Napolitano, 119 N.M. 696, 895 P.2d 218 (1995). Neiman, supra, 270 Conn. 255. McDowell considered the requirement to invoke these internal procedures a matter of "primary jurisdiction" rather than exhaustion of remedies. McDowell, supra, 119 N.M. 700-01. Connecticut law also recognizes this distinction. See Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 348-50, 363 A.2d 170 (1975). "Primary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed in the special competence of an administrative body; in such case the judicial process is suspended pending referral of such issues to the administrative body for its views." (Internal quotation marks omitted.) Id., 349. In contrast, exhaustion of administrative remedies "contemplates the situation in which the claim is initially enforceable exclusively by administrative action." (Internal quotation marks omitted; emphasis in original.) Id., 349-50. Because the matter at hand is not initially enforceable exclusively by administrative action, but rather is more one involving the resolution of issues which, under a regulatory scheme, have been placed in the special competence of an administrative body, the case appears to involve primary jurisdiction rather than exhaustion of remedies. Further, subject matter jurisdiction is ultimately the "power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . ." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004). The court, as a court of general jurisdiction, clearly has power to hear private employment cases. Although the court would have been greatly aided by Yale's own review of the claims here, the court does not believe it lacks the power, and thus the subject matter jurisdiction, to adjudicate the general class to which this case belongs. Nevertheless, as stated above, the court is bound by the Supreme Court's declaration that this case involves the exhaustion of remedies doctrine, which in turn implicates subject matter jurisdiction.
B
The plaintiffs observe that Neiman was a common-law breach of contract and negligent misrepresentation action and argue that, therefore, its exhaustion of remedies doctrine does not apply to the statutory cause of action here. The plaintiffs cite General Statutes § 31-51m, a companion statute providing for the protection of whistle blowers, that explicitly provides that an employee may bring suit "after exhausting all available administrative remedies." The plaintiffs essentially contend that the inclusion of this provision in § 31-51m, and its omission in § 31-51q, a companion statute, reveals the legislature's intention not to encumber § 31-51q with an exhaustion requirement. Yale invokes similar reasoning, but reaches the opposite conclusion. Yale notes that, in General Statutes § 31-51bb, the legislature enacted a statutory claim exception to the exhaustion requirement for employees covered by collective bargaining agreements. Yale thus argues that, because the legislature specifically exempted persons filing statutory claims from the exhaustion of remedies found in collective bargaining agreements, but has not enacted any other similar exemptions, the legislature did not intend to relieve statutory claimants of fulfilling other exhaustion requirements.
Section 31-51m(c) provides:
Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. An employee's recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorneys fees to be taxed by the court. Any employee found to have knowingly made a false report shall be subject to disciplinary action by his employer up to and including dismissal. CT Page 17636
Section 31-51bb provides:
No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal Constitution or under a state statute solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.
The parties thus draw contrary inferences from the legislature's omission of any mention of the exhaustion rule in § 31-51q. The court resolves this dilemma by reliance on the fact that § 31-51q is a remedial statute. See Cotto v. United Technologies Corp., 251 Conn. 1, 8-9, 738 A.2d 623 (1999). "As a remedial statute, § 31-51q deserves a generous construction that implements its purpose at one of the important places, the private workplace, in which those rights may be impaired." Id. Although an exhaustion rule would serve a salutary purpose, interpreting the statute to include an unexpressed exhaustion rule would also result in the imposition of a significant procedural obstacle for claimants to surmount before filing suit. In this case, for example, Yale maintains the harsh position that, unless a faculty member files a grievance within the forty-five day period or its extension, the member is forever barred from bringing suit under § 31-51q. Such an interpretation is contrary to the statute's remedial purpose. Accordingly, the court does not interpret § 31-51q to include an exhaustion requirement.
The net result is that the plaintiffs did not have to exhaust administrative remedies for the statutory count but, under Neiman, did have to exhaust remedies for the breach of contract count. The jury interrogatories reveal that it found for the plaintiffs on every element of both counts. Thus, even if the plaintiffs could not and did not satisfy the exhaustion rule on the breach of contract count by substantial compliance, as discussed in the next subsection, the jury's finding of liability and damages on the statutory claim provides an independent, unimpaired basis for the jury verdict. For these reasons alone, the court rejects Yale's contention that the plaintiffs' failure to exhaust administrative remedies requires the entry of judgment notwithstanding the verdict.
C
The plaintiffs maintain that substantial compliance with internal grievance procedures is sufficient to confer jurisdiction on the court and that they have substantially complied. The Neiman Court did not resolve whether substantial compliance is sufficient to confer jurisdiction. See Neiman, supra, 270 Conn. 252-53. See also id., 255 (citing, with a "cf." signal, McDowell v. Napolitano, supra, 119 N.M. 696, for the proposition that the "exhaustion doctrine [is] not absolute because plaintiff substantially complied with grievance procedures and had already appealed to [the] highest authority at [the] university."). The Court did recognize, however, that several limited exceptions to the exhaustion rule do exist. Neiman, supra, 258-59. See Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993).
The court confronts the substantial compliance issue not in a motion to dismiss at the beginning of a case, as in Neiman, see Neiman, supra, 270 Conn. 246, but rather at the end of the trial. At this point, as discussed, it is too late for plaintiffs to comply with any remaining internal procedures or to cure any technical defects in their attempts to obtain administrative relief. It would also be too late, because of the statute of limitations, for plaintiffs to refile if the court were to dismiss their suit due to any imperfections in their exhaustion efforts that might have been curable. When, as here, a defendant delays raising exhaustion until the end of trial, the plaintiffs ought not bear the burden of any technical noncompliance with grievance procedures, as long as they have substantially complied by giving the university notice of their claim and an opportunity to resolve it. The court accordingly concludes that substantial compliance is sufficient when, as here, the defendant first raises exhaustion after trial has begun.
Yale views the substantial compliance question narrowly and looks only at whether the plaintiffs took the appropriate measures to overturn the disciplinary measures taken against them. But, in reality, the evidence at trial revealed that the plaintiffs had two overlapping categories of complaints — those relating to patient care, possible billing fraud, and management of the department of diagnostic radiology ("the department"), and those relating to their own salaries and positions. These issues were linked because validation of the plaintiffs' complaints about management of the department might well have led to vindication of the plaintiffs' individual concerns.
Thus, while it is true that plaintiffs Burrell and Smith did not file grievances pursuant to the faculty handbook, they did write letters to Yale's president complaining about perceived departmental unethical practices, staffing concerns, harsh cost-cutting practices, and a general atmosphere of intimidation. (Plaintiffs' exhibits 98, 116.) Those same letters cited the department chairman's decision to remove these plaintiffs from various positions of authority and to cut their salaries. In response, the dean of the medical school instituted an investigation. (Plaintiffs' exhibits 122, 124.) After completion of the investigation, the dean approved plaintiff Burrell's salary cut and the removal of Burrell from the position of director of abdominal imaging. (Plaintiffs' exhibit 173.) The dean also rejected most of plaintiff Smith's complaints about his recall from sabbatical leave, his removal from two administrative positions, and his reduction in pay. (Plaintiffs' exhibit 175.)
Exhibits 173 and 175 were marked for identification at trial but not introduced. At oral argument, Yale challenged their relevancy for purposes of this motion, but not their authenticity. The court finds these exhibits relevant and therefore relies on them in this portion of the decision.
Plaintiff Rosenfield wrote Yale's president in July 1999 to complain about departmental staffing, patient care, teaching, promotions, and what he called a "reign of terror." (Plaintiffs' exhibit 313.) Rosenfield's letter did not complain about his removal from clinical practice and loss of salary because those events did not occur until January 2001.
Rosenfield did file such a complaint with the university provost pursuant to the faculty handbook in March 2001. (Defendant's exhibit 996.) In April and June 2001, Rosenfield wrote the provost that he was awaiting further action on a request for a hearing or an appeal with the medical board at the Yale-New Haven Hospital ("the hospital"), thus essentially requesting a stay of his grievance. (Defendant's exhibits 998, 999, 1000.) Rosenfield believed that his loss of position and salary reduction stemmed from a letter of complaint sent by the hospital to the chairman of the department and that a hearing at the hospital might resolve the matter. (Defendant's exhibits 344, 345.) Although the hospital initially took the position that Rosenfield was not entitled to a hearing because he had not suffered any loss of hospital privileges, ultimately the hospital conducted a "special meeting" and passed a resolution in December 2001 that affirmed its respect for all parties involved and recommended that the parties resolve the matter though negotiation. (Defendant's exhibits 1005, 1097.) In November 2002, the provost's office wrote Rosenfield that it had not heard from him since June 2001 and inquired whether he wished to pursue his grievance. Rosenfield replied that he was attempting to obtain a full "due process" hearing from the hospital medical board. (Defendant's exhibits 1003, 1004.)
On this record, the court concludes that the plaintiffs' efforts to exhaust internal remedies were often misguided but nonetheless substantial. The plaintiffs' failure to invoke or complete the Yale grievance process eliminated a possible means of resolving this case without the tremendous expense it ultimately imposed on the parties, counsel, the court, and ultimately the taxpayers of this state. The plaintiffs also overlooked an avenue for regaining their positions in the department, a result that might have been more meaningful to academic radiologists than money damages. For these costs and lost opportunities, the plaintiffs must share the blame.
On the other hand, all three plaintiffs clearly put forth their concerns about management of the department to the president of the university. This attempt had the potential of correcting the perceived underlying problems that led to the plaintiffs' loss of positions and benefits. Further, plaintiffs Burrell and Smith specifically addressed their personal losses and the medical school dean substantially declined to reverse them. Plaintiff Rosenfield at least initially filed a grievance. He then proceeded to challenge the putative source of the evidence that led to his discipline — the hospital. After the initial special meeting at the hospital, Rosenfield asked for a full hearing, which apparently the hospital did not grant him. Because these efforts by all three plaintiffs bore some realistic potential for redressing the plaintiffs' grievances, they amounted to substantial compliance. The court accordingly declines to enter judgment notwithstanding the verdict on the ground of failure to exhaust remedies.
II
At oral argument, Yale made the claim that the court had erred in failing to charge the jury, in accordance with request number nine of Yale's May 24, 2004 preliminary request to charge, that plaintiff Rosenfield could not recover damages unless he proved that his transfer to the West Haven Veterans Administration Hospital was a constructive discharge. Specifically, request to charge number nine provided that "[a]n employee cannot refuse a [work] assignment unless it amounts to a constructive discharge, meaning that the employer's decision to reassign the employee intentionally creates working conditions so difficult or unpleasant that a reasonable person in the employee's shoes would feel compelled to resign" and that Rosenfield is "entitled to damages for the reduction in salary in January 2001 only if he has proved [constructive discharge]" (Yale's preliminary request to charge, pp. 14-15).
Yale's claim of error is both procedurally and substantively flawed. The court granted Yale permission to file a sixty-five page opening brief in support of its post-trial motions. Yet nowhere in this thick document did Yale make the court's decision to deny request to charge number nine a separate claim of error. Yale first attempted to do so in its reply brief. (Yale's reply brief, pp. 12-17.) It is well-settled, however, that a litigant cannot raise arguments for the first time in a reply brief. See Bovat v. Waterbury, 258 Conn. 574, 585-86 n. 11, 738 A.2d 1001 (2001). Yale's attempt to raise this issue as a separate claim of error in its reply brief is a disservice to the plaintiffs and the court, because it deprived the plaintiffs of an opportunity for a written response, and deprived the court of the benefit of that response. Id. To the extent that it is necessary for Yale, in its post-verdict motions, to renew challenges to the jury instructions, the court finds that Yale has not properly done so on this issue.
Yale mentions request number nine in its statement of facts and then vaguely refers to the underlying issue, without mentioning request number nine, in its discussion of the evidence and the charge on Rosenfield's failure to mitigate damages. (Yale's opening brief, pp. 19; 31 n. 14; 57.)
A second procedural flaw arises from the fact that Practice Book § 16-23(a) requires a request to charge contain a "citation of authority upon which it is based . . ." In part, the court did not grant Yale's request to charge because the request did not contain any Connecticut authority applying the concept of constructive discharge to a case involving a transfer, as opposed to a resignation or complete loss of employment. In support of its request, Yale cited two cases: Alicea Rosada v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977), and Seery v. Yale-New Haven Hospital, 17 Conn.App. 532, 540, 554 A.2d 757 (1989). Alicea Rosada does apply the concept of constructive discharge to a transfer, but it is a 1977 First Circuit decision that was not binding on the court. In contrast, Seery merely defines constructive discharge in the traditional context of determining whether a complete loss of employment was a voluntary resignation or, alternatively, a constructive discharge that would entitle the plaintiff to maintain a wrongful discharge action.
At oral argument on the motions, Yale for the first time cited Brittell v. Department of Correction, 247 Conn. 148, 717 A.2d 1254 (1998). In Brittell, our Supreme Court concluded, in a sexual harassment employment suit, that a plaintiff employee had failed to prove constructive discharge because she had rejected an opportunity to transfer to another work location where there was less likelihood of harassment. Id., 178-79. While this case does factor a possible transfer into the analysis of whether an employer's action amounted to a constructive discharge, it did not specifically hold, as Yale's request provides, that unless an employee can prove that an employer's transfer order amounts to a constructive discharge, an employee who refuses the transfer order may not any obtain damages for his consequent reduction in pay. In fact, no Connecticut appellate court has so held. In any event, Yale never cited Brittel in its request to charge. Yale's request thus did not comply with the requirement of Practice Book § 16-23(a) to provide a "citation of authority upon which it is based . . ."
Substantively, "[t]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in a way that injustice is not done to either party under the established rules of law . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate." (Internal quotation marks omitted.) Wallenta v. Moscowitz, 81 Conn.App. 213, 218, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004). The court did charge that the jury should consider whether Rosenfield's "removal from clinical practice" amounted to "discipline," which the court defined as "a material employment disadvantage, such as a change in salary, benefits, or responsibilities." (Charge to jury, p. 5.) The jury thus had before it the question, similar to that involved in the determination of constructive discharge, of whether Rosenfield's transfer to the West Haven veterans hospital amounted to a significant reduction in his work benefits and responsibilities. The court also charged the jury that one of the factors it should consider in deciding whether to make an award of future economic damages was "whether there is a reasonable prospect of obtaining comparable alternative employment . . ." (Charge to jury, pp. 12-13.) Similarly, the court charged, in accordance with the case law, that the defendant had raised the special defense that Rosenfield had a duty to mitigate damages "by obtaining comparable work elsewhere" and that Rosenfield, in that regard, "must act as a reasonable person would be expected to act." (Charge to jury, p. 13.) See Ann Howard's Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 229, 676 A.2d 844 (1996); Preston v. Keith, 217 Conn. 12, 15, 584 A.2d 439 (1991). The court thus placed before the jury the issue, similar to that raised in request to charge number nine, of whether Rosenfield had acted reasonably in refusing to accept the transfer and declining to seek work elsewhere. The court's charge thus "correctly [adopted] the law to the case in question and . . . [provided] the jury with sufficient guidance in reaching a correct verdict." Wallenta v. Moscowitz, supra, 218-19.
Finally, it is inconceivable that the granting of Yale's request on constructive discharge would have made any difference in the outcome. The jury's award of $2,432,500 in past and future economic damages necessarily means that the jury found that Rosenfield's removal from clinical practice and related transfer to the veterans hospital was sufficiently onerous to amount to discipline. Further, the jury specifically found in interrogatory 8a that Yale had failed to prove that Rosenfield had a duty to mitigate damages, thus revealing its finding that Rosenfield acted reasonably in refusing to accept his transfer. The jury, in fact, found against Yale on every interrogatory question in Rosenfield's case, including whether Yale's conduct warranted punitive damages, and awarded a total of $3,847,875 in damages. Given these facts, it defies common sense to believe that the submission of an additional instruction on the overlapping topic of whether Rosenfield's transfer was a constructive discharge would have led the jury to reverse its course, enter a defendant's verdict, and deny Rosenfield all damages.
III
Yale has launched a comprehensive attack on the sufficiency of the evidence on virtually every significant element of liability and damages. Many of its arguments were heard and rejected in its summary judgment motion or directed verdict motions, and it is unclear why Yale has chosen to burden the court and the plaintiffs with these arguments again. The court once again finds the evidence sufficient to go to the jury, for all the reasons previously stated. A new issue, and one worthy of some discussion, however, is whether the evidence was sufficient to support, or at least whether the court should grant a remittitur of the award of, noneconomic damages to the plaintiffs for emotional distress. "The trial court has inherent power to set aside a jury verdict which, in the court's opinion, is either against the law or the evidence . . ." (Internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 428 n. 21, 673 A.2d 514 (1996). "A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn.App. 637, 646, 777 A.2d 745 (2001). A court should not lightly set aside a jury verdict because litigants have a constitutional right to trial by jury. See Hunt v. Prior, supra, 236 Conn. 428 n. 21. "The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929 (1999). The court must view the evidence in a light most favorable to sustaining the verdict. Id.
The court finds the evidence of loss of life's enjoyment sufficient to sustain the jury's award to all three plaintiffs. Plaintiff Smith did not claim damages for loss of reputation. Although there was no evidence of any economic loss due to damage to the reputations of plaintiffs Burrell and Rosenfield, and the jury's award was generous, the jury could reasonably have found that the reputation of an academic physician is a critical asset, and that even intangible damage to it is worthy of considerable compensation.
The only evidence of emotional distress experienced by plaintiff Smith came from his own testimony that it was very stressful going into work with people who previously looked up to him and who might now think that he had done something improper. (July 1, 2004 transcript, pp. 11-12.) Based on this testimony the jury awarded him $125,000 in noneconomic damages.
Although the jury had a basis to award plaintiff Smith some amount of emotional distress damages based on his testimony, the award of $125,000 shocks the court's sense of justice. See Ham v. Greene, supra, 248 Conn. 536. This award is completely out of line with awards in other cases in the court's experience in which a plaintiff has endured prolonged physical pain and suffering or has experienced some permanent employment or avocational disability. In contrast, in the present case, there was no evidence at all from Smith of any physical manifestations of distress such as depression, sleeplessness, or illness, of any need for medical care, or of any impairment of vocational or avocational abilities.
The award of $125,000 is also out of line with the limited nature of the harm done to plaintiff Smith. The present case does not involve anything approaching the loss of or injury to a limb, the loss of or injury to a family member, an improper arrest, or an act of bigotry, all of which might justify a high award for emotional distress alone. Instead, the evidence construed favorably to plaintiff Smith revealed that Yale improperly relieved him of several positions of authority at the medical school beginning in August 1997. The jury also found that Smith's economic damages were the modest amount of $8,000 which, according to Smith's own testimony, resulted from a reduction in salary for the 1998-99 academic year. (June 30, 2004 transcript, p. 76.) In June 1999, Smith resigned his Yale faculty appointment and accepted a position at Cornell Medical School. Smith would not have experienced emotional distress after this period of approximately twenty-two months, since Smith's testimony was that he experienced stress from going to work at Yale. Thus, Smith's emotional distress was not of a permanent or even prolonged nature. Accord Buckman v. People Express, Inc., 205 Conn. 166, 176, 530 A.2d 596 (1987).
For this limited amount of harm, the jury additionally awarded Smith $125,000 for loss of enjoyment of life, which also related to Smith's dissatisfaction with his reduced responsibilities and thus largely duplicated the award for emotional distress. (June 30, 2004 transcript, pp. 76-79.)
The jury's award of $125,000 for emotional distress to plaintiff Smith appears more attributable to a sense of outrage over Yale's conduct than a dispassionate analysis of the evidence. See Ham v. Greene, supra, 248 Conn. 536; Buckman v. People Express, Inc., supra, 205 Conn. 176-77 n. 10. The jury in this case rejected Yale's position against every plaintiff on every interrogatory question, every substantive count, and every damage award. The jury then found Yale liable for punitive damages. The jury, of course, was entitled to resolve the substantive issues in the way it did and, as a result, feel outraged at Yale's conduct. Yet, as the court instructed, the jury was not entitled, in making an award of noneconomic damages, to punish the defendant or be generous to the plaintiff.
As Yale recognizes, this case is not governed by the rule of Perodeau v. City of Hartford, 259 Conn. 729, 792 A.2d 752 (2002), that there can be no tort of negligent infliction of emotional distress during ongoing employment relationships. In contrast, § 31-51q does contemplate emotional distress awards. Nonetheless, the observations made by the Perodeau court are universal:
it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. There are few things more central to a person's life than a job, and the mere fact of being demoted or denied advancement may be extremely distressing. That is simply an unavoidable part of being employed. Id., 757. Given the reality that the workplace is invariably stressful, Smith's unadorned testimony that it was stressful to go to work at Yale during the limited period of time in question does not warrant an award of $125,000 for emotional distress. Accordingly, the court orders a remittitur of $100,000 of the emotional distress award, thus reducing the award to $25,000.
In contrast to plaintiff Smith, plaintiff Rosenfield, who experienced the much greater penalty of losing all his clinical responsibilities at Yale, did not even claim any emotional distress. Further, although the jury's award of $250,000 in emotional distress damages to plaintiff Burrell seems overly generous for some of the same reasons stated above, the jury did have before it testimony from the plaintiff's wife that, in the wake of his removal from various administrative positions at Yale, plaintiff Burrell experienced depression, anxiety about going to work, sleeplessness, loss of concentration, and loss of interest in doing things around the house. Further, because plaintiff Burrell did not leave Yale, his symptoms could have persisted. Thus, there was some evidentiary basis for a large award in his case.
IV
Yale argues that the jury incorrectly calculated the pretrial interest due plaintiffs Burrell and Rosenfield. Rosenfield conceded this point in his brief and Burrell did so at oral argument. In accordance with the calculations in Yale's brief, the court orders a remittitur of $24,520.83 of the interest award to plaintiff Burrell and a remittitur of $82,687.50 of the interest award to plaintiff Rosenfield.
The court has reviewed the other claims made by Yale and, for the reasons stated previously in court, finds them to be without merit.
V
The court denies the motions for judgment notwithstanding the verdict and to set aside the verdict. The court orders a remittitur of $100,000 in the case of plaintiff Smith. If plaintiff Smith fails to accept this remittitur within three weeks, or within any extended period of time granted by the court, the court orders that his verdict be set aside and that a new trial take place. See Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 85-86, 544 A.2d 158 (1988); Buckman v. People Express, Inc., supra, 205 Conn. 177. The court orders a remittitur of $24,520.83 of the interest award to plaintiff Burrell and a remittitur of $82,687.50 of the interest award to plaintiff Rosenfield. Because these plaintiffs have already indicated their acceptance of these remittiturs, there is no need for them to do so again.
It is so ordered.
Carl J. Schuman
Judge, Superior Court