Opinion
No. KNL CV 06-5000849-S
December 14, 2009
MEMORANDUM OF. DECISION ON MOTION FOR POST-VERDICT RELIEF
On August 12, 2008, the jury rendered a verdict in favor of the plaintiff, Andrea Charron, based upon her complaint that the defendant, Town of Griswold, violated General Statutes §§ 31-51m and 31-51q, in connection with the termination of the plaintiff's employment. The jury awarded damages in the amount of $836,871. On September 15, 2008, the defendant filed a "Motion for Post-Verdict Relief" seeking to set aside the jury verdict and to have judgment enter in the defendant's favor notwithstanding the verdict against it as to both counts of the plaintiff's complaint. Alternatively, the defendant moved that both counts be set aside and a new trial be granted. Oral argument was held on November 7, 2008. The motion was denied by the court on February 18, 2009. Thereafter, on August 21, 2009, the court ruled on the plaintiff's motion for an award of attorneys fees, punitive damages and offer of judgment interest against the defendant and rendered judgment in the total amount of $1,298,519.50. The court now files this memorandum of decision pursuant to Practice Book § 64-1 on the motion for post-verdict relief.
I Motion to Set Aside the Verdict and for Judgment Notwithstanding the Verdict
Although the defendant has denominated its motion as a single one for post-verdict relief, in the text of the motion, the defendant has moved to set aside the verdict and for judgment notwithstanding the verdict. A "verdict will be set aside and judgment directed only if [the court finds] that the jury could not reasonably and legally have reached their conclusion." (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 519, 729 A.2d 740 (1999). "The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . Limiting that discretion, however, is the litigants' constitutional right to have issues of fact determined by a jury where there is room for a reasonable difference of opinion among fair-minded jurors." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 106-07, 708 A.2d 937 (1998).
"In making the determination [as to whether to set aside a verdict,) `[t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.'" Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999), quoting Fink v. Golenbock, 238 Conn. 183, 208, 680 A.2d 1243 (1996). "A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that [it] did in fact reach." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006).
On a motion for judgment notwithstanding the verdict, the court "must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial . . . This standard of review extends deference to the judgment of the judge and the jury who were present to evaluate witnesses and testimony . . . Judgment notwithstanding the verdict should be granted only if [the trial court finds] that the jurors could not reasonably and legally have reached the conclusion that they did reach." (Citations omitted.) Craine v. Trinity College, 259 Conn. 625, 635-36, 791 A.2d 518 (2002). "The standard of review applied to the rendering of judgment notwithstanding the verdict is the same as the standard of review for directed verdicts . . . The question is whether the verdict clearly was against the weight of the evidence, indicating that the jury did not apply the law correctly to the facts . . . Directed verdicts are not favored in Connecticut jurisprudence . . . A verdict may be directed, however, when the decisive question is one of law or when the claim is that there is insufficient evidence to sustain a favorable verdict." (Citations omitted.) Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 413, 357 A.2d 936 (2004).
A. Interrogatories
The defendant claims that in view of the jury's answer to Interrogatory Number 8, the plaintiff failed to prove an essential element of her cause of action pursuant to § 31-51q because the jury found that "the defendant proved by a preponderance of the evidence that it reasonably believed that the Plaintiff's speech substantially or materially interfered with her bona fide job performance or the working relationship between the plaintiff and her employer, the Town of Griswold."
Within the motion itself and the memorandum in support, the defendant also makes several claims related to the interrogatories. The defendant asserts that the court's finding, pursuant to Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811, (1968), that the value of the plaintiff's speech was outweighed by its potential to substantially or materially interfere with the working relationship between the plaintiff and the Town of Griswold, acting through its first selectperson, Anne Hatfield, rendered the speech unprotected as a matter of law and that it "was therefore gratuitous and legally incorrect" for the jury to go on to consider interrogatory 9. Secondly, the defendant argues that the answers to interrogatories 8 and 9 and interrogatories 3 and 8 are irreconcilably inconsistent.
The interrogatories and answers in question with instructions read as follows:
COUNT ONE: CONN. GEN. STAT § 31-51m.
3. Did Defendant produce evidence that there was a legitimate, non-retaliatory reason for the termination of Plaintiff's employment?
Yes_____ No____X___
If the answer is "yes," then proceed to Question 4. If the answer is "no," then you have arrived at a plaintiff's verdict and you should proceed to insert the damages that you have found by a preponderance of the evidence on the Verdict Form.
COUNT TWO: CONN. GEN. STAT § 31-51q. CT Page 1162
8. Did Defendant prove by a preponderance of the evidence that it reasonably believed that Plaintiff's speech substantially or materially interfered with her bona fide job performance or the working relationship between the plaintiff and her employer, the Town of Griswold?
Yes____X____ No_______
If the answer is "no," then you have arrived at a plaintiff's verdict and you should proceed to insert the damages that you have found by a preponderance of the evidence on the Verdict Form. If the answer is "yes, "then do not proceed further and notify the Court by a written note that you have answered this interrogatory #8 in the affirmative and you will receive further instruction from the Court.
9. Did Plaintiff prove by a preponderance of the evidence that Defendant's claim that it discharged or disciplined her based on substantial or material interference with her bona fide job performance or her working relationship at the Town of Griswold was pre-textual or unworthy of belief and the real reason was retaliation, or that defendant was motivated to discipline or discharge plaintiff in retaliation for the exercise of her right to speak on matters of public concern?
Yes___X____ No____
If the answer is "yes," then you have arrived at a plaintiff's verdict and you should then proceed to insert the damages that you have found by a preponderance of the evidence on the Verdict Form. If the answer is "no," then enter a defendant's verdict on the Verdict Form regarding Plaintiff's claims under section 31-51q.
In presenting these related arguments, the defendant assumed that the jury's answer to interrogatory 8 combined with the CT Page 1163 Pickering balance by the court are the end of requisite analysis which precluded further action by the jury in the form of interrogatory 9 as well as a verdict in favor of the plaintiff. However, this view is not supported the case law and raises an argument that was not made by the defendant during the trial either at the time of the jury's note indicating the response to interrogatory 8 or after the court announced its decision concerning the Pickering balancing. The defendant did not take exception to the jury going on to answer interrogatory 9. On the contrary, the defendant agreed both on and off the record that interrogatory 9 was part of the analysis and that the answer to interrogatory 8 did not end the case. (See transcript, 8/12/08 at 49-50, 62.)
The court notes at the outset that the design and content of the interrogatories were drafted jointly and agreed to by the parties.
Because the case law is unenlightening as to how to accommodate the so-called Pickering balance in midst of trial, counsel and the court agreed that the court would instruct the jury to send a note indicating their response to interrogatory 8 as soon as they answered it and to halt deliberations at that point pending further instructions. (See transcript, 8/11/08 at 139.)
As the Connecticut Supreme Court has recently written, "[i]t is not the function of a court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. When a claim is made that the jury's answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers." (Internal quotation marks omitted.) Earlington v. Anastasi, 293 Conn. 194, 203, 976 A.2d 689 (2009). Further, "[t]o justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as [a] matter of law judgment could only be rendered for the party against whom the general verdict was found; they must negative every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 269-70, 698 A.2d 838 (1997).
When read together, and in light of the jury's responses to all the preceding interrogatories, it is reasonable to infer that even though the members of the jury concluded that the defendant "reasonably believed" that plaintiff's speech "substantially or materially interfered with her bona fide job performance or the working relationship between the plaintiff and her employer, the town of Griswold," as reflected in their response to interrogatory 8, the jury was also persuaded by a preponderance of the evidence that the defendant's claim in this regard was "pretextual or unworthy of belief" and that the real motivation for the discipline and discharge imposed on the plaintiff was retaliation for exercising her right to speak out on a matter of public concern. (See plaintiff's exhibit 1.) The court came to this view based on the cases following Pickering v. Board of Education, supra, 391 U.S. 568, which state that even if the Pickering balance weighs in favor of the governmental employer, the employee may still prevail if she proves that she was disciplined or discharged in retaliation for speech as opposed to any potential concern of disruption in the workplace. Specifically, in Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999), cert. denied, 528 U.S. 823, 120 S.Ct. 70, 145 L.Ed.2d 60 (1999), the court held that "even if the Pickering balance is resolved in the employer's favor, the employee may still demonstrate liability by proving that the employer disciplined the employee in retaliation for the speech, rather than out of fear of the disruption." In making this statement of the law, the Lewis court relied on an earlier Second Circuit Court of Appeals decision, Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996), which held as follows:
It is clear, though, that a government official may, in certain circumstances, fire an employee for speaking — even on a matter of public concern — where that speech has the potential to disrupt the work environment . . . [T]hat termination does not violate the employee's First Amendment rights where:
(1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech.
***
Thus, even if the potential disruption to the office outweighs the value of the speech, the employer may fire the employee only because of the potential disruption, and not because of the speech. That's to say, it matters not that the potential disruption outweighs the value of the speech if the employer subjectively makes the speech the basis of his termination decision: such `retaliatory'discharge is always unconstitutional.
(Citations omitted; internal quotation marks omitted.) Id., 827. In turn, the Sheppard court relied on a decision of the United States Supreme Court, Waters v. Churchill, 511 U.S. 661, 677, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), which held: "It is necessary that the [employer] reach its conclusion about what was said in good faith, rather than as a pretext; but it does not follow that good faith is sufficient."
Thus, even if an employer demonstrates that it fired an employee based on disruption or fear of disruption caused by the employee's speech, both United States Supreme Court and Second Circuit precedent hold that the employee may still recover if she can demonstrate that the employer had a retaliatory purpose. It makes no sense as the defendant herein argues that a governmental employer, under any circumstances, may be relieved of liability even though the factfinder is persuaded by the requisite burden of proof that it retaliated against an employee by way of discipline or discharge for engaging in protected speech.
Similarly, the Connecticut Supreme Court has held that an employer cannot avoid liability for infringing on an employee's First Amendment rights if the employer's interest in avoiding workplace disruption is, in fact, a pretext that masks a retaliatory intent. In DiMartino v. Richens, 263 Conn. 639, 822 A.2d 205 (2003), an airport employee was transferred and demoted after cooperating with state police in a criminal investigation of several fellow employees concerning violations of airport security. Id., 643. In opposing the employee's First Amendment claim, the employer argued, inter alia, that it had the right to take action against the employee based on his speech because it sought to avoid disruption in the workplace. Id., 670.
In particular, the employer argued that the employee had to be transferred because his coworkers "harbored intense hostility" toward him because of his speech. Id. The court held that the employer's concern for disruption was pretextual because the employer took no action to address the co-worker's hostility, despite the fact that the employer had a "zero tolerance policy" for workplace violence. Id., 671. The court also found that the employee's reassignment was "highly degrading" and placed the employee in locations where hostility was more likely to occur. Id., 672. "If easing hostilities were their concern, the defendants' actions were highly unreasonable and of little value." Id. See also Schnabel v. Tyler, 230 Conn. 735, 759-60, 646 A.2d 152 (1994) (employer did not establish that employee's speech disrupted performance of police department; rather, employer violated law by retaliating against employee based on protected speech).
The defendant's further argument that the use of the word "or" renders interrogatory 9 "independently flawed" and inconclusive is an incorrect reading of the wording of these phrases. In light of all the other interrogatory responses, each of the two phrases separated by the "or," that is, whether the plaintiff proved that the claim of substantial or material interference was "pre-textual and unworthy of belief and the real reason was retaliation," or, that the defendant was motivated to discipline or discharge the plaintiff because other speech on a matter of public concern, supports a plaintiff's verdict. In addition, the court notes that the defendant stipulated to inclusion of interrogatory 9 and the language that it now challenges. Therefore, its post-verdict challenge has all the earmarks of a post-trial rationalization. Any ambiguity as between interrogatories 8 and 9 was cleared up by the jury's finding in response to interrogatory 9 that the true reason for the defendant's actions was retaliation for the plaintiff's protected speech. As noted previously, the court must view the answer to the interrogatories and verdict in a light most favorable to sustaining the verdict. When it does so, there is no basis to overturn the verdict. Significantly, as noted, supra, after the note from the jury indicating the response to Interrogatory 8, the court afforded the defendant ample opportunity to address the necessity of having them proceed to answer interrogatory 9. (Transcript, 8/12/08 at 49, 50 62.)
The defendant cites the case of Barrese v DeFillippo, 45 Conn.App. 102, 104, 64 A.2d 797 (1997), in support of its argument that, "in retrospect . . . interrogatory 9 misdirected the jury's attention and should not have been considered," and that "it is entirely appropriate for the court to correct this error" on a motion to set aside the verdict. (See Defendant's Reply Memorandum, pages unnumbered (hereinafter, "Defendant's Reply Mem.")) The court declines this invitation and finds the defendant's citation to this case somewhat puzzling. In Barrese, the Appellate Court declined to review a similar claim to the present one because the defendant failed to raise its claim of inconsistent interrogatories in the trial court, did not except to the jury charge in accordance with the interrogatories in question and submitted the verdict forms and interrogatories that went to the jury. Here, at oral argument on the post-trial motions, this court repeatedly asked the defendant to present transcript references that supported its post-trial claim that it previously raised the argument that the differences between the statute (§ 31-51q) and federal analysis mandated that if the issue of substantial or material interference/ Pickering balance interrogatory 8) was decided in the defendant's favor, the plaintiff could not prevail under the statute. (Transcript, 11/7/08 at 15-16, 18-19, 21, 24 and 74-76.) Although the defendant filed a supplemental memorandum on January 6 or 7, 2009, no pre-verdict transcript references to such an argument were cited. Also rejected in Barrese was the defendant's alternative claim of plain error. The Appellate Court stated, "[p]lain error is reserved for extraordinary circumstances and situations in which the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) Barrese v. DeFillippo, supra, 45 Conn.App. 105.
As previously stated, the defendant's claim that a jury cannot find pretext even where the plaintiff establishes that the reasonable belief of an employer is tainted by improper or illegal motive cannot be correct. A finding that retaliation "is of no consequence if the statute's proviso is established" would undermine the public policy which gave rise to the statute. (See Defendant's Reply Mem.; see also Defendant's Supplemental Memorandum (hereinafter "Defendant's Supp. Mem."), pp. 6-7, where defendant seems to recognize that the apparent legislative intent in § 31-51q was "to incorporate federal considerations.") At trial, the defendant agreed that the court should apply federal analysis by supporting the concept of the Pickering balance, yet asserts, post-verdict, that § 31-51q is unique and entitled to a more restrictive literal reading than the federal cases allow. That is, the defendant now argues that the state statute requires a different analysis while, at the same time, argues that the court's Pickering balance should trump the finding of the jury in interrogatory 9 that, despite what the defendant might have reasonably believed, its true reason for discharging and/or disciplining the plaintiff was retaliation. The defendant cannot have it both ways. It cannot claim on the one hand that § 31-51q makes no provision for an inquiry into pretext, and on the other, that federal analysis applies and the court's finding that the Pickering balance tipped in the defendant's favor trumps the jury's finding of pretext. The defendant made neither of these arguments at trial stipulating to both the federal analysis and interrogatory 9 allowing the jury to find that the plaintiff proved pretext.
For all the foregoing reasons, the Pickering balance, even if decided in the defendant's favor, does not conclude the analysis in a retaliation claim based on speech pursuant to § 31-51q. The inclusion of interrogatory 9 and allowing the jury to answer it despite the "yes" answer to interrogatory 8 was required and legally correct. The hearing held upon receiving the note concerning the jury's answer to interrogatory 8 afforded the defendant ample opportunity to make the argument it now makes at a time when the plaintiff could have addressed it and the court could have done something about it. Not only did the defendant fail to make this argument, it specifically agreed to have the jury proceed to interrogatory 9. In so doing, the defendant waived any post-verdict claim that proceeding with interrogatory 9 was "gratuitous and incorrect," as it now claims. See Daley v. Aetna Life Casualty Co., 249 Conn. 766, 796, 734 A.2d 112 (1999); see also Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 878-79, 794 A.2d 997 (2002).
The defendant also claims that the jury's answer to interrogatory 3 finding that the defendant did not produce evidence of a "legitimate, nonretaliatory reason for the termination of Plaintiff's employment," is inconsistent with the jury's response to Interrogatory 8. The defendant does this in an obvious attempt to discredit the jury's finding in interrogatory 9 which reflects that the jury rejected the defendant's proffered reason finding instead that the real reason for the termination was retaliation for her speech, a response by the jury fully consistent with their answer to interrogatory 3.
In a further effort to demonstrate inconsistencies in the responses to the interrogatories, the defendant disingenuously equates the jury's finding in interrogatory 8 as to what the defendant "reasonably believed" with a non-existent finding that the defendant proved by a preponderance of the evidence that the speech in question substantially or materially interfered with the plaintiff's bona fide job performance or her working relationship with the town. The defendant assumes these findings equate while the court finds otherwise. (See transcript, 11/7/08 at 10.) The defendant also argues that the town would have discharged the plaintiff in the absence of the letter of January 12, 2006. In making this claim in its memorandum, the defendant mischaracterizes interrogatory 8, which did not ask if the jury found that the defendant proved that there was "a legitimate, non-discriminatory reason for plaintiff's discharge" as the defendant suggests. (See Defendant's Memorandum in Support of Motion for Post-Verdict Relief ("hereinafter Def. mem."), p. 16). Rather the interrogatory asked: "Did Defendant prove by a preponderance of the evidence that it reasonably believed that Plaintiff's speech substantially or materially interfered with her bona fide job performance or the working relationship between the plaintiff and her employer, the Town of Griswold?" (Emphasis in original.) Based on the evidence and the jury instuctions, the jury could have found that the second and third selectmen "reasonably believed" that they were voting to terminate the plaintiff's employment based on their good faith belief that it was in the plaintiff's best interest because Hatfield became abusive in her treatment of the plaintiff and convinced them that she and the plaintiff could not get along. That is, the first and second selectmen could have reasonably believed that they were voting to discharge the plaintiff because she and Hatfield could not get along which was the stated reason by Hatfield and not because of her January 12, 2006 letter, while Hatfield's intention was precisely to fire her because of the letter. In this regard, this case is remarkably similar to Schnabel v. Tyler, supra, 230 Conn. 760, where the court found that it was "undisputed . . . that the relationship between Schnabel and Tyler dramatically deteriorated following Tyler's speech," and the evidence supported "the inference that the relationship deteriorated precisely because Schnabel was retaliating against Tyler for his speech." As in Schnabel, it is undisputed in the instant case that the relationship between Hatfield and Charron "dramatically deteriorated" following Charron's speech and also that the evidence, when viewed in a light most favorable to sustaining the verdict in favor of the plaintiff, gives rise to the inference that "the relationship deteriorated precisely because Hatfield was retaliating against Charron for her speech." Id. (See also transcript, 8/8/08 at 40-41.) Further, the jury may also have reasonably concluded that the plaintiff proved that the second and third selectmen were improperly influenced by the retaliatory intent of Hatfield. For all these reasons, the court rejects the defendant's argument that the answers to interrogatories 8 and 9 and 3 (finding that the defendant did not have a legitimate, non-retaliatory reason for terminating the plaintiff) are irreconcilable.
This question was asked in the context of interrogatory 3 in connection with § 31-51m (count one) which the jury answered in the negative.
If interrogatory 8 was inartfully drawn by including the "reasonably believed" language, the responsibility for the ambiguity must fall on the defendant for agreeing to its wording.
The jury instruction on this issue was as follows:
In considering the circumstantial evidence presented by the plaintiff on the issue of retaliatory action on the part of the defendant, you may consider that while the plaintiff is required to prove by a preponderance of the evidence intention to retaliate by the Town of Griswold, she is not required to establish that each member of the Board of Selectman was so motivated. That is, the defendant may be held liable for retaliation even where the entire decision-making body, the Board of Selectmen, did not intentionally retaliate against her in violation of her constitutional rights under circumstances where you find that the information used by the Board of Selectmen in deciding to terminate plaintiff's employment was filtered through or dependent on a member who had a retaliatory intent.
Specifically, in this case, the plaintiff claims that First Selectwoman Anne Hatfield had a retaliatory motive that influenced the other selectmen's actions in this case, including voting to terminate plaintiff's employment. Thus, if plaintiff establishes that the Board of Selectman acted to terminate plaintiff's employment based on information provided by First Selectman Anne Hatfield, and if you find that First Selectman Anne Hatfield had a retaliatory motive, then you may find the Town of Griswold has violated both Section 31-51m and Section 31-51q.
Defendant also comments that the jury's silence on interrogatory 4 cannot be construed as further support of the verdict in favor of the plaintiff as to the § 31-51m claim. The court disagrees. Unlike the § 31-51q claim, there was no need to answer interrogatory 4 because the burden-shifting methodology related to § 31-51m does not require the plaintiff to establish pretext in the absence of an employer's articulation of a legitimate reason. Therefore, the jury could have reasonably believed the plaintiff's evidence and found that the defendant did not have a legitimate reason for its actions. The Pickering balance does not factor into § 31-51m and so cannot be used to defeat the finding in the plaintiff's favor as to count one.
B. Whistleblowing
The defendant also moves to set aside the verdict on the ground that the plaintiff failed to establish that she reported on "unethical practices, mismanagement or abuse of authority," in support of her claim pursuant to General Statutes § 31-51m. It also claims that the content of the letter did not involve a matter of public concern. On this issue, the defendant argues that the plaintiff's letter of January 12, 2006; (Plaintiff's Exhibit 1, Defendant's Exhibit NN (hereinafter Plaintiff's Ex. 1); was no more than an expression of her opinion as to the character of the second and third selectmen and the director of finance and that she failed to demonstrate a "good faith belief in the existence of any unethical practices, mismanagement or abuse of authority on the part of the Town." (Defendant's Mem., p. 29.) The defendant further claims that Hatfield was not the plaintiff's employer for the purpose of establishing liability under § 31-51m. The defendant cites no law in support of this proposition.
The plaintiff argues in opposition that the defendant failed to make this argument in its oral motion for a directed verdict at the end of the plaintiff's case, did not raise it at the conclusion of the evidence, and therefore, it is waived. Because the pertinent portion of the transcript is unavailable as of the writing of this memorandum, the court has no record to which it can refer in addressing this waiver argument. In any event, viewing the evidence in the light most favorable to supporting the answers to the interrogatories and the verdict the letter in question substantially involved a matter of public concern. It reflected a deep concern about perceived unethical behavior on the part of Hatfield as first selectperson including mismanagement and abuse of authority. In particular, the letter protested disparaging public behavior by Hatfield directed award the second and third selectmen and the director of finance, which reasonably could be construed as undermining their credibility and public confidence in town government. As reflected in the letter, the plaintiff was motivated to act based on Hatfield's comment to her that the lack of insurance alone or in combination with the burning of the town hall was a political ploy by the others "designed to get her." A related statement of the plaintiff in the letter was bolstered by a witness who reported overhearing a similar comment by Hatfield at the fire scene. The letter also suggested that Hatfield was withholding important information about insurance for the building from other public officials and/or disseminating false information about the insurance issue in a blatant effort to gain political advantage. In addition, the letter accused Hatfield of manipulating events and public statements by using information only available to her since the fire. The jury could have reasonably construed these actions by Hatfield as manipulating the power of her position and using unfair and underhanded tactics to make herself look good and the others look bad at the expense of the credibility and integrity of town government. Importantly, in strong terms, the letter claimed that Hatfield deliberately acted dishonestly in connection with a matter of significant public importance, i.e., the fire that destroyed the old town hall, a historic, very valuable and marketable asset of the town, when the public and the other public officials should have had a complete and truthful account from Hatfield, as the highest elected public official, of what she knew and when she knew and when she knew it. In terms of § 31-51m, by calling Hatfield on her behavior as a public official toward her co-officials, the jury reasonably could have found, by way of this letter, that the plaintiff blew the whistle on Hatfield, and as a result, the plaintiff was penalized and eventually discharged.
Finally, although not specifically raised in its motion, the defendant claims that the content of the plaintiff's letter was in the nature of an internal communication. This claim ignores the fact that the letter was intended for and directed to the entire board of selectman, the governing body of the town of Griswold as well as the director of finance. There is no articulated ground or authority recited for overturning the finding of the jury that the plaintiff proved by a preponderance of the evidence that she reported "unethical practices, mismanagement or abuse of authority, in good faith to a public body."
The actual interrogatory and answer are as follows:
1. Did Plaintiff prove by a preponderance of the evidence that she reported unethical practices, mismanagement, or abuse of authority, in good faith to a public body?
Yes___X___ No____
If the answer is "yes," then proceed to Question 2. If the answer is "no," then enter a defendant's verdict on the Verdict Form regarding Plaintiff's claims under section 31-51m.
For the foregoing reasons, the motion to set aside the verdict on the ground that the plaintiff failed to establish that she reported on "unethical practices, mismanagement and abuse of authority," is denied.
II MOTION FOR A NEW TRIAL
The defendant has moved for a new trial on the grounds that certain evidentiary rulings and jury instructions were improper and constituted harmful error. "A motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Gilmore, 289 Conn. 88, 98, 956 A.2d 1145 (2008). The trial court has "broad discretion . . . to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial . . ." (Internal quotation marks omitted.) State v. Ouellette, 110 Conn.App. 401, 416, 955 A.2d 582, cert. granted on other grounds, 289 Conn. 951, 961 A.2d 417 (2008).
A. EVIDENTIARY RULINGS
1. The defendant moves for a new trial on the grounds that the court refused to allow the defendant's witness, Stuart Norman, to testify as to the advice he gave Hatfield when she came to see him on January 12, 2006, after the plaintiff read her letter to Hatfield. The defendant claimed that the evidence it sought to elicit from Norman was not hearsay as it was being offered, not for its truth, but for its impact on Hatfield and the reasonableness of Hatfield's subsequent conduct. The court rejected the evidence on the grounds of both hearsay and relevance. The witness was allowed to testify that he and Hatfield had a conversation and also about his observations concerning Hatfield's demeanor. Norman was not allowed to testify as to the advice he claims to have given Hatfield on that day that allegedly caused her to act as she did. Since Hatfield, who testified after Norman, could not remember her conversation with Norman or what she may have done as a result of it, the basis of the defendant's claim of harmful error is befuddling. The record will more fully reflect the basis for the court's ruling.
2. The defendant also claims that it is entitled to a new trial for the reason that the court did not allow cross examination of the plaintiff about her tort claims against Anne Hatfield that were settled on the eve of the commencement of evidence. The defendant claims that this line of questioning was in the nature of prior admissions, although there were no statements in the complaint that the defendant sought to employ. In fact, no version of the complaint or any other document was marked for identification or sought to be used in any way during the examination or proffer on this issue. Rather the defendant sought to examine the witness concerning the settlement of the claims. The plaintiff objected to this line of cross examination pursuant to General Statutes § 52-216a. The defendant's position and argument that evidence as to prior claims was relevant to the issue of causation would have been prejudicial and confusing to the jury in that Hatfield was both the tortfeasor and principal actor on behalf of the town. The defendant suggests incredibly that this evidence would have allowed the jury to somehow separate the damage caused to plaintiff by Hatfield as the "rogue tortfeasor" and Hatfield as the first selectperson of the town. In addition, although the motion papers include a somewhat cryptic reference to double recovery, this argument was not raised as a question of law during the trial. Further, the defendant never sought to reduce the verdict against it based on a claim that testimony concerning the prior settlement "improperly permitted [the plaintiff] to recover the same damages more than once." (Def. Mem. at 39.)
At the time of the settlement the only personal tort claim claimed that remained against Hatfield individually was invasion of privacy.
General Statutes § 52-216a provides in pertinent part as follows: "An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial . . ."
B. JURY INSTRUCTIONS
1. As to the § 31-51q claim, the defendant claims harmful error and seeks a new trial on the ground that the court erred in instructing the jury that, "as a matter of law, the plaintiff's speech involved a matter of public concern — `integrity in municipal government,'" and argues that this question should have been submitted to the jury. As the Connecticut Supreme Court stated in Daley v. Aetna Life Casualty Co., supra, 249 Conn. 777: "We conclude herein that whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court. We further conclude herein that whether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made. This later inquiry necessarily involves a question of fact." In accordance with the Daley opinion, the court instructed the jury as follows:
The first element that a plaintiff must prove in order to prevail is that she exercised rights that are protected by the First Amendment to the United States Constitution or analogous sections of the Connecticut Constitution. To do so, the plaintiff must initially prove that she spoke out on a matter of public importance or concern. The speech in question can be oral or in writing. I have determined as a matter of law that the topic of integrity in municipal government is a matter of public importance or concern because this topic addresses a matter of political or social concern to the community. In her complaint the plaintiff alleges that she exercised her right of speech protected by law when she raised concerns to the Board of Selectmen regarding integrity of municipal government. It is your responsibility to determine, under all the circumstances, based on the content, form, and context of the plaintiff's letter, whether the plaintiff was motivated to speak out as a concerned citizen on a public issue, on a matter of public importance, rather than as an employee seeking to further her private interests regarding her job, and whether her speech, as set forth in Exhibit 1 or Exhibit NN, actually addressed behavior or conduct on the part of the defendant that falls within this matter of public importance, or concern, as I have defined it.
The defendant took no exception to this charge.
2. As to her § 31-51q claim, the defendant moves for a new trial on the ground that certain erroneous jury instructions constituted harmful error. Specifically, the defendant challenges the court's instructions as to certain definitions of words within the terms "unethical practices, mismanagement or abuse of authority." The defendants contend that because the statute itself does not include a definition of these words, as ordinary citizens, the jurors' understanding of their meaning without instruction from the court is controlling. The charge in question was as follows: "The terms, `unethical, mismanagement and abuse of authority,' are not defined by the statute. The dictionary defines the word `unethical' within the term `unethical practices' as `having to do with ethics or morality; of or conforming to moral standards.' The word `mismanagement' means `to manage or administer badly or dishonestly.' The word authority within the term abuse of authority is defined as `the power or right to give commands, enforce obedience, take action or make final decisions.' The word abuse is defined as `to use wrongly; misuse' and `to hurt by treating badly, mistreat.'" The court disagrees with the defendant's contention that defining these terms was erroneous. Our appellate courts have held that "[t]he standard technique to assess the common understanding of a statutory term is to turn to a dictionary of common usage." State v. Marrero, 66 Conn.App. 709, 721-22, 785 A.2d 1198 (2001). See also State v. Brown, 259 Conn. 799, 792 A.2d 86 (2002).
"Although it is generally preferable for a jury to be instructed on the statutory definition of a word where one exists, a trial court is not necessarily required to do so . . . Specific words in a statute need not be defined if they are being used and understood in their ordinary meaning . . . [T]he definition of words in our standard dictionaries is taken as a matter of common knowledge which the jury is supposed to possess . . . If this commonly understood meaning of the word, as found in a dictionary and presumably applied by the jury, is substantially the same as the statutory definition, then the failure of the trial court to give the statutory definition could not have had any effect on the jury deliberations." (Citations omitted; internal quotation marks omitted.) State v. Brown, supra, 259 Conn. 808-09. Therefore, the court properly instructed the jury as to the ordinary meaning of statutory terms in question by referring to a dictionary of common usage.
3. The defendant further contends that the court's jury instruction as to what could be considered as "discipline" within the meaning of § 31-51q constituted harmful error which requires a new trial. As to the referenced portion of the jury charge, the court recited the plaintiff's claims of discipline but did not state that the itemized claims constituted discipline as a matter of law. The court defined discipline as "adverse employment action short of discharge which creates a material employment disadvantage. Such adverse employment actions may include demotion, suspension, reduction in pay, reprimand, significantly diminished responsibilities but may also include lesser affirmative acts of punishment or deprivation taken by the employer which leave an employee less well off and which in combination and in their totality, create a working environment that is unreasonably inferior, hostile or adverse to the employee when compared to atypical or normal, not ideal or model, workplace. Incidents that are relatively minor and infrequent such as a change of working conditions that is a mere inconvenience or simply alters an employee's job responsibilities, personality conflicts at work that generate antipathy and snubbing by supervisors and co-workers will not meet this standard."
Since there is no appellate definition of "discipline" in the context of § 31-51q, this portion of the charge was an attempt by the court to harmonize the requests to charge by the plaintiff and the defendant and was taken from the cases cited by both parties. See Williams v R.H. Donnelley Corp., 368 F.3d 123, 128 (2d Cir., 2004); see also Bombalicki v. Pastore, Superior Court, judicial district of New Haven, Docket No. 378772 (May 10, 2000, Blue, J.) [ 27 Conn. L. Rptr. 183]. Further, the legislative history of § 31-51q supports a broad reading consistent with its remedial purpose. See Cotto v. United Technologies Corp., 251 Conn. 1, 8-9, 733 A.2d 623 (1999). Finally, without citing any legal authority, the defendant contends that the court's recitation of the plaintiff's claims regarding discipline was also error. The court rejects this bald assertion.
4. Finally, as to the § 31-51m claim, the defendant claims post-trial that the court should have included in its jury instruction the same expanded rationale that the defendant alleged constituted a legitimate non-retaliatory reason for plaintiff's discharge as the court included in the § 31-51q instruction. The court notes that the court invited the defendant to document that this argument was made prior to the post-trial motion and it failed to do so. (See transcript, 11/7/08 at 61.) Since the defendant did not request a charge of this nature and did not take exception to the charge on this basis, the court considers it waived and does not address it.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant's motion for post-verdict relief is denied.