Opinion
HHBCV175018330S
01-11-2019
Debra COHEN v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.
UNPUBLISHED OPINION
OPINION
Sheila A. Huddleston, Judge
The plaintiff, Debra Cohen, brought this administrative appeal to challenge a decision by the defendant, the Commission on Human Rights and Opportunities (commission), acting through its chief human rights referee (referee), dismissing a portion of a whistleblower retaliation complaint and striking the remainder of the complaint as untimely. The plaintiff argues that (1) the referee improperly allowed the defendant, Office of the Probate Court Administrator (administrator), to file a motion to strike after filing its answer, in violation of the Practice Book; and (2) the time limit for filing a whistleblower complaint pursuant to General Statutes § 4-61dd is not jurisdictional and was tolled by the pendency of another administrative proceeding. The defendants argue that (1) the Practice Book does not govern proceedings in administrative agencies; and (2) the time limit is not jurisdictional but is mandatory, and it was not tolled by a personnel proceeding brought against the plaintiff by her employer, the administrator. The court concludes that the referee correctly determined that the plaintiff’s complaint was untimely, that no facts alleged by the plaintiff warranted equitable tolling of the complaint, and that there were no allegations of retaliation against any other official or entity. The plaintiff’s complaint was properly stricken, and the plaintiff’s appeal is dismissed.
BACKGROUND
The probate court administrator is appointed from among the judges of the probate courts by the chief justice pursuant to General Statutes § 45a-74. As set forth in General Statutes § 45a-77, the administrator’s duties are both advisory, providing training to probate judges and staff, and supervisory. The administrator’s supervisory duties include but are not limited to visiting each probate court to examine its records and files to ascertain whether the court’s business has been conducted in compliance with governing statutes. General Statutes § 45a-77(f) and (g).
The administrator is authorized to hire assistants and clerical help. General Statutes § 45a-81(a). Assistants who are attorneys are not permitted to engage, directly or indirectly, in the practice of law before any probate court and are deemed employees of the Judicial Branch. General Statutes § 45a-81(b) and (c).
In accordance with a policy established by the Supreme Court in 1985, serious discipline against a non-union Judicial Branch employee may be imposed only by a three-judge panel, also sometimes called a three-judge board (board), after a finding of cause for such discipline. Serious discipline, under the policy, includes suspension without pay for more than five days, demotion, and discharge. There is no review or appeal procedure for a decision rendered by such a board. See Judicial Branch Administrative Policies and Procedures Manual, Policy 612, Corrective Discipline (Policy 612).
The administrator engaged the plaintiff as a staff attorney in 2005. Her direct supervisor was the administrator’s chief counsel (chief counsel). The plaintiff’s duties included visiting the probate courts and auditing random files to determine whether the files were up to date and whether required accountings had been timely filed. ROR, p. 75-76.
This background summary of the plaintiff’s period of employment with the probate court administrator is drawn from the findings of the three-judge board that terminated the plaintiff’s employment. The plaintiff’s whistleblower complaint expressly referenced the board’s decision as the action that "ripened" her retaliation complaint against the administrator. ROR, p. 310. The transcript of the board’s oral decision was attached to the administrator’s motion to strike. ROR, pp. 72-98. Both parties and the referee treated the transcript of the decision as incorporated by reference into the whistleblower complaint. ROR, pp. 59, 39-40, 28-29.
When the plaintiff joined the administrator’s staff, the plaintiff was also serving as the court-appointed trustee for one probate estate and as the conservator of the estate and person of a conserved person. The administrator was unaware that the plaintiff held these fiduciary positions in the probate courts. The plaintiff continued to serve in these fiduciary positions while she was employed by the administrator. During that time, however, she failed to file required financial accountings in the probate cases. ROR, pp. 75-77, 83.
In May 2012, a probate court clerk contacted the chief counsel to inquire whether the plaintiff, as an employee of the administrator, could serve as a fiduciary in probate matters. The question arose because an assistant probate court clerk had discovered that the plaintiff, as trustee of a probate estate, had failed to file required tri-annual accountings. Over the following year and a half, the chief counsel and the administrator learned that the plaintiff had also failed to file federal and state tax returns on the income to the probate estate for which she was a trustee and had requested fiduciary fees from the estate. ROR, pp. 76-79. The probate judge overseeing the administration of the estate contacted the chief counsel on a number of occasions regarding concerns about the plaintiff’s actions as a fiduciary. The probate judge ordered the plaintiff to resolve the tax issues and to bear responsibility for penalties and interest related to the late tax filings. The chief counsel met with the plaintiff and communicated with her by e-mail numerous times over the period between May 1, 2012 and October 31, 2013. In consultation with the administrator, the chief counsel gave the plaintiff a series of directives regarding resolving the probate court matters in which she was involved and returning any fiduciary fees she had taken while employed by the administrator. In July 2013, the chief counsel issued a written reprimand to the plaintiff. He subsequently issued written directives setting out what the plaintiff was required to do to resolve the probate court matters. On October 17, 2013, he cautioned her that failure to comply could lead to discipline or termination. ROR, pp. 79-87. She then sent him a series of different accounts related to her conservatorship. Review of those accounts revealed discrepancies with earlier accounts the plaintiff had filed. The chief counsel determined that the plaintiff was engaging in deception with the administrator and with the probate court overseeing the estate at issue. On October 31, 2013, he placed the plaintiff on administrative suspension without pay pending an administrative investigation.
Although Judicial Branch policy required a determination of cause for suspension without pay for more than five days, the administrator did not request the appointment of a reviewing panel until May 28, 2014, when he wrote to the chief court administrator and recommended the plaintiff’s termination from employment. He cited three general grounds for termination: (1) By serving as a court-appointed fiduciary in matters before the probate courts while employed by the administrator with supervisory authority over the probate courts, the plaintiff violated various statutes and policies, including engaging in the practice of law; (2) the plaintiff failed to follow directives of her supervisors; and (3) the plaintiff attempted to conceal fiduciary fees taken by submitting deceptive accountings to both the administrator and to the probate courts. The plaintiff disputed these charges.
In accordance with Policy 612, the chief court administrator appointed Superior Court Judges Barbara N. Bellis, Robert J. Devlin, Jr., and Maria Araujo Kahn to serve as the disciplinary board to hear the charges against the plaintiff. ROR, pp. 72-74. The board conducted a hearing on the charges over six days in August and September 2014. ROR, pp. 33, 310. The board admitted approximately a hundred exhibits and heard seven witnesses, including the plaintiff, who was represented by counsel. On October 6, 2014, the board rendered its decision orally in open court. The board held that the administrator bore the burden of proving the charges by clear and convincing evidence. The board unanimously found that the administrator had proved, by clear and convincing evidence, that the plaintiff failed to comply with reasonable directives of her supervisors and made a deliberate attempt to conceal from both the administrator and the probate courts the fees she had taken from the accounts. In light of its findings on those two charges, the board concluded that it was unnecessary to determine whether the plaintiff’s conduct amounted to the practice of law and was prohibited by state statute, regulation, or policy. It found that there was just cause for the imposition of serious discipline, and that termination of the plaintiff’s employment was discipline commensurate with the severity of her conduct and necessary to preserve the integrity and effectiveness of the administrator. ROR, p. 96.
The board found that the plaintiff had been suspended without pay for more than five days without approval of the chief court administrator. The board awarded the plaintiff back pay for the period from November 5, 2013, five days after her suspension, to May 28, 2014, when the request for a hearing and suspension without pay was submitted to the chief court administrator. It ordered that her termination was effective as of the day the board rendered its decision, October 6, 2014. ROR, p. 97.
THE WHISTLEBLOWER COMPLAINT
On January 5, 2015, the plaintiff submitted a whistleblower retaliation complaint form to the commission’s Office of Public Hearings pursuant to General Statutes § 4-61dd. The plaintiff named the Office of the Probate Court Administrator as the sole respondent. ROR, pp. 306-13.
In response to question 7.C on the complaint form, the plaintiff alleged that she had met with three auditors in the Office of the Auditors of Public Accounts to complain that (1) the Judicial Branch’s human resources office had failed to investigate her claims of a hostile and retaliatory work environment; (2) the administrator failed to follow Judicial Branch policies and procedures regarding the hiring of employees; and (3) the administrator had taken actions to circumvent state statutes regarding the staffing of probate courts. ROR, pp. 307-09.
The whistleblower complaint form contained the following question: "On what date did you learn about the personnel action(s) threatened or taken against you because of the information you disclosed in 6.C above?" The plaintiff responded:
There is no 6.C on the form; this question was apparently intended to refer to 7.C. Although the plaintiff’s response refers to 6.C, her response relates to the incidents she alleged in 7.C.
The incidents disclosed in 6.C above occurred in the summer/fall 2013 and were disclosed on October 31, 2013, at 9:30 a.m. to the Public Auditors. At 3:00 p.m. on the October 31, 2013, I was put on unpaid administrative leave by my employer ... A lengthy administrative process followed, culminating in a 3-judge panel hearing in Superior Court in August and September 2014. During the course of the hearings, it was acknowledged by [the administrator’s counsel] that they were aware of my whistleblower complaints.
The court rendered its decision on October 6, 2014. That decision relates back to my October 31, 2013 9:30 a.m. whistleblower complaints. It was not until the decision terminating my employment on October 6, 2014, that the retaliation for my whistleblower complaints ripened/became actionable.ROR, p. 310.
The relief sought by the plaintiff included reinstatement to her prior position and pay grade without a break in service or reinstatement to a comparable position as well as retroactive reinstatement of all benefits, lost wages, statutory interest, attorneys fees, and costs. ROR, p. 313.
The complaint was initially assigned to Chief Human Rights Referee Alvin Wilson, who presided over early conferences and discovery issues. Referee Wilson resigned from the Office of Public Hearings in December 2015 and the matter was reassigned to his successor, Chief Human Rights Referee Michele C. Mount, who issued a scheduling order on October 12, 2016. ROR, pp. 106-07. Pursuant to that order, with a one-week extension granted by the referee, the administrator filed a motion to strike the whistleblower complaint on November 7, 2016, asserting that the plaintiff had failed to allege that the administrator had taken any personnel actions against her within the ninety-day statute of limitations period established by General Statutes § 4-61dd(e)(2)(A). ROR, pp. 59, 100. The plaintiff objected to the motion to strike, claiming that it was untimely because it was out of the order of proceedings established by Practice Book § 10-6. ROR, pp. 35-36. She also argued that "judicial review" of an administrative decision required a final decision and that the decision issued by the board on October 6, 2014, was the final decision. ROR, pp. 36-40.
On January 5, 2017, Referee Mount issued a ruling captioned "Ruling on Respondent’s Motion to Strike and Sua Sponte Dismissal." ROR, p. 28. She characterized the plaintiff’s whistleblower complaint as a claim that she was suspended and later terminated "based on false charges by respondent in retaliation for making a claim of sexual harassment," noting that claims of sexual harassment discrimination should be addressed under General Statutes § 46a-51 et seq., rather than the whistleblower statute. She then divided the motion to strike (and presumably the complaint itself) into two counts. "Count one" referred to the findings of the three-judge board and was treated as a motion to dismiss based on lack of jurisdiction. "Count two" referred to claims against the administrator, which the administrator claimed were untimely. ROR, pp. 28-31.
With respect to "count one," the referee stated that the board had found, by clear and convincing evidence, that the plaintiff had engaged in a deliberate attempt to conceal fees, and that the board had ruled that such concealment was in violation of Judicial Branch procedures and probate law, warranting serious discipline. She also noted that a discussion of the board’s decision could be found in Cohen v. Office of Probate Court Administrator, Superior Court, judicial district of Hartford, Docket No. CV 15-5040589S (May 5, 2016, Robaina, J.), 2016 WL 3026785. The referee then stated: "This tribunal has no statutory authority to overturn or modify the complainant’s termination by the Board. Additionally, the Superior Court has previously determined that Cohen’s termination was based purely upon her work-related actions as a public official. The issues determined by the Board are not within the jurisdiction of this court and must be dismissed." ROR, p. 30.
With respect to "count two," allegations that the administrator had retaliated against the plaintiff, the referee stated that the administrator’s act of placing the plaintiff on unpaid administrative leave on October 31, 2013, was "the only qualifying, potential adverse personnel action" on which the plaintiff could have made a whistleblower retaliation claim. She noted that General Statutes § 4-61dd requires an employee to file a retaliation complaint "[n]ot later than ninety days after learning of the specific incident giving rise to a claim that a personnel action has been threatened or has occurred" in retaliation for whistleblowing activity. The referee recognized that the ninety-day filing requirement was not jurisdictional but was a mandatory statute of limitations that barred an untimely action unless "waiver, consent, estoppel or some other equitable tolling applies." She determined that "[t]here are no allegations by the complainant that would require tolling" of the ninety-day time period, and, accordingly, she granted the motion to strike. ROR, p. 30-31.
The plaintiff moved for reconsideration but did not request leave to file an amended complaint to allege facts to support an equitable tolling of the limitation period. The hearing officer did not act on the motion for reconsideration within twenty-five days, thereby denying it pursuant to General Statutes § 4-181a(a). The plaintiff then filed this appeal pursuant to General Statutes § 4-183.
After the appeal was argued, this court’s review of the regulation governing motions to strike in whistleblower cases led it to question whether the referee’s decision was a final decision for purposes of the court’s jurisdiction under General Statutes § 4-183(a). In response to an order by the court, the parties submitted supplemental briefs. Each party argued that the referee’s decision was a final decision, although the parties’ reasoning differed.
After reviewing the supplemental briefs, the court determined that an articulation of the referee’s decision was needed both as to the basis for the referee’s decision that she lacked jurisdiction over "count one" and as to the issue of finality with respect to "count two." It accordingly remanded the case to the commission for such articulation. See Commission on Human Rights and Opportunities v. Hartford, 138 Conn.App. 141, 154 n.9, 50 A.3d 917, cert. denied, 307 Conn. 929, 55 A.3d 570 (2012) ("a trial court hearing administrative appeals has the same power [to remand for articulation of the basis of decision], which sometimes is necessary to reach a reasoned and informed decision"). The referee filed an articulation in the Office of Public Hearings on October 4, 2018, and the administrator filed a copy of the articulation in this court on October 11, 2018. See Docket Entry # 124.
In the articulation, the referee stated that she lacked jurisdiction over any action by the board because— among other reasons— there were no allegations against the board in the whistleblower complaint. The plaintiff’s whistleblower complaint did not claim that the plaintiff had made any complaint or disclosure to a "qualifying individual" regarding the board. The referee further stated that an adverse action taken against the plaintiff by someone other than the respondent or a named party would not be a "qualifying adverse action" under the whistleblower retaliation statute. In addition, the referee analyzed the issue of claim preclusion with respect to the board’s determination that the administrator had proved, by clear and convincing evidence, that the plaintiff had engaged in several types of malfeasance that warranted her dismissal.
With respect to the finality of the decision striking "count two" of the whistleblower complaint, the referee stated that the decision was intended to be final. She further explained her reasons for concluding that the complaint could not be amended to bring it within the ninety-day limitations period.
After the articulation was filed, the court afforded the parties the opportunity to submit supplemental briefing to address the articulation. Docket Entry # 125. No party responded.
APPLICABLE LAW
This appeal was brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. "Under the UAPA, it is [not] the function ... of this court to retry the case or to substitute its judgment for that of the administrative agency ... Even for conclusions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281, 77 A.3d 121 (2013). "[C]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts ... [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes." (Internal quotation marks omitted.) Id.
General Statutes § 4-183(j) establishes the scope of judicial review of administrative decisions. It provides: "(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
"On the other hand, it is the function of the courts to expound and apply governing principles of law." State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988). "This case presents a question of law turning upon the interpretation of a statute." Id., 718. While our Supreme Court has held that a time-tested agency interpretation of a statute will be afforded deference, it has also held that such deference is appropriate "only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous, and the agency’s construction is reasonable." Id., 719. The reasonableness of an agency’s construction is determined by applying "our established rules of statutory construction." (Internal quotation marks omitted.) McCullough v. Swan Engraving, Inc., 320 Conn. 299, 305, 130 A.3d 231 (2016). If a statute is not ambiguous, or if the agency’s construction of the statute is not consistent, time-tested, and reasonable, the court’s review of the agency’s construction of the statute is de novo.
DISCUSSION
A
Before addressing the issues raised by the plaintiff, the court first considers whether the referee’s decision striking the complaint against the administrator was a final decision. This is necessary to establish that the court has jurisdiction. General Statutes § 4-183(a) provides that "[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section." General Statutes § 4-166(5), in turn, defines "final decision" in relevant part as "the agency determination in a contested case ... The term does not include a preliminary or intermediate ruling or order of any agency ..."
In this case, the referee dismissed the complaint to whatever extent it sought relief from the board’s decision and struck the claims against the administrator as untimely. The question is whether a decision striking certain claims is a final decision for purposes of § 4-183.
The regulation governing motions to strike in whistleblower cases provides as follows: "Whenever a respondent alleges that the complaint fails to state a claim for which relief can be granted, the respondent may file a motion to strike. The motion shall be accompanied by a memorandum of law citing the legal authorities relied on and shall distinctly specify the reason or reasons for the claimed insufficiency. Unless otherwise ordered by the presiding officer, the complainant shall file a response to the motion within fifteen days of the filing of the motion. If the motion is granted by the presiding officer, the complainant shall, within the time ordered by the presiding officer, file a revised complaint complying with the ruling. Failure to file a revised complaint may result in the dismissal of the case." Regs., Conn. State Agencies § 4-61dd-15(d).
When the referee struck the claims against the administrator, she did not state a time for amending the complaint or specify any manner in which the complaint should be amended. In her articulation, the referee clarified that she intended the decision to be final, without leave to amend the complaint. She explained that, based on the record, there were no circumstances that could save the complaint from being time barred. The court will address the merits of the referee’s analysis in its discussion of the timeliness of the complaint. With respect to the issue that relates to this court’s jurisdiction— whether the referee’s decision was final for purposes of § 4-183— the court concludes that it was final, and that this court does have jurisdiction.
The court’s question regarding finality arose from analogy to the rules governing motions to strike in the Practice Book. Under the rules of practice that govern civil actions in court, a plaintiff whose complaint is stricken has a right to replead within fifteen days after the decision striking the complaint. A ruling that strikes a complaint is not a final judgment. See Breen v. Phelps, 186 Conn. 86, 88-89, 439 A.2d 1066 (1982). If a plaintiff chooses to stand on a complaint rather than replead, a motion for judgment is ordinarily required to terminate the proceeding and obtain a final judgment for purposes of appeal. DeCorso v. Calderaro, 118 Conn.App. 617, 624 n.14, 985 A.2d 349 (2009), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010).
Practice Book § 10-44 provides in relevant part: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen-day period, the judicial authority may, upon motion, enter judgment against that party on said stricken complaint, counterclaim or cross complaint, or count thereof."
The court concludes that the referee’s decision was final for two reasons. First, unlike the Practice Book, § 4-61dd-15(d) of the regulations does not allow repleading as a matter of right, but instead provides for repleading "within the time ordered by the presiding officer." Second, even if the regulation allowed repleading as a matter of right, our courts have recognized that an appeal may be taken from a stricken count when there is a final judgment as to all other counts.
Both the text and the history of § 4-61dd-15(d) of the regulations indicate that the presiding referee has discretion to grant or deny leave to amend a stricken complaint. The text, as noted above, does not confer an automatic right to replead, but allows the presiding officer to order repleading within a specified time. The history of this provision supports the conclusion that the presiding officer may exercise discretion to deny leave to amend. When the whistleblower regulations were first promulgated in 2003, they did not provide for a motion to strike. Instead, the procedure provided for testing the legal sufficiency of a complaint was a motion to dismiss. As the presiding referee in one case observed, however, dismissal was a "draconian" result when the defects in a complaint might be cured by repleading. See Asante v. University of Connecticut, Commission on Human Rights and Opportunities, OPH/WBR No. 2006-031 (March 2, 2007), 2007 WL 1052596. In cases where it appeared that a defective complaint could be amended to state a claim, referees sometimes denied a motion to dismiss and ordered the complainant to file an amended complaint within a specified time. See id. (denying motion to dismiss and directing complainant to file amended complaint within two weeks); see also O’Sullivan v. Vartelas, Commission on Human Rights and Opportunities, OPH/WBR No. 2008-086 (November 20, 2008), 2008 WL 5122194 (denying motion to dismiss without prejudice and directing complainant to amend her complaint within two weeks). As of December 30, 2008, however, the regulations were amended to provide a motion to strike for testing the sufficiency of the complaint. See § 4-61-dd-15, Regs., Conn. State Agencies; see also Schwartz v. Eagan, Commission on Human Rights and Opportunities, OPH/WBR No. 2008-095 (March 17, 2009), 2009 WL 910180 (discussing 2008 amendments to whistleblower regulations). Since the regulation was amended to provide for a motion to strike, referees have continued to state a time for amending a complaint when it appears that amendment may cure deficiencies, but have denied leave to amend where amendment could not cure the deficiency. See Schwartz v. Eagan, supra (granting motion to strike and ordering amendment as to certain claims; concluding that "no repleading could cure the legal deficiencies" in other claims and dismissing those claims). If amendment is not ordered, the decision striking a claim is final.
As originally promulgated in 2003, § 4-61dd-15(c) of the regulations provided: "The presiding officer may, on his own or upon motion by a party, dismiss a complaint or a portion thereof if the complainant: (1) Fails to establish jurisdiction; (2) Fails to state a claim for which relief can be granted; (3) Fails to appear at a lawfully noticed conference or hearing without good cause; or (4) Fails to sustain his burden after presentation of evidence."
As amended effective December 30, 2008, § 4-61dd-15 of the regulations provides in relevant part as follows:
(c) The presiding officer may, on his own or upon motion by a party, dismiss a complaint or a portion thereof if the complainant: (1) Fails to establish subject matter jurisdiction or personal jurisdiction; (2) Fails to appear at a lawfully noticed conference or hearing without good cause; or (3) Fails to sustain his or her burden after presentation of evidence.
(d) Whenever a respondent alleges that the complaint fails to state a claim for which relief can be granted, the respondent may file a motion to strike. The motion shall be accompanied by a memorandum of law citing the legal authorities relied on and shall distinctly specify the reason or reasons for the claimed insufficiency. Unless otherwise ordered by the presiding officer, the complainant shall file a response to the motion within fifteen days of the filing of the motion. If the motion is granted by the presiding officer, the complainant shall, within the time ordered by the presiding officer, file a revised complaint complying with the ruling. Failure to file a revised complaint may result in the dismissal of the case.
Even if § 4-61dd-15(d) of the regulations expressly authorized repleading without leave of the presiding officer, as Practice Book § 10-44 does with respect to complaints in court, nevertheless, rulings striking a portion of a complaint may be treated as a final decision when a final decision is rendered as to the remainder of the complaint. See Breen v. Phelps, supra, 186 Conn. 89-91; DeCorso v. Calderaro, supra, 118 Conn.App. 623-24. In this case, the referee treated the plaintiff’s complaint as consisting of two counts, one addressing the action of the three-judge board in terminating the plaintiff’s employment, and one addressing the actions of the administrator in suspending the plaintiff without pay. The referee dismissed the complaint with respect to the board’s decision and struck the complaint, without leave to amend, as to the administrator. Because the decision conclusively resolved all claims in the whistleblower complaint, it is a final decision for purposes of appeal under § 4-183.
B
The plaintiff’s whistleblower retaliation complaint was filed pursuant to General Statutes § 4-61dd. Section 4-61dd(a) provides that a person having knowledge of "any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency ... may transmit all facts and information in such person’s possession to the Auditors of Public Accounts." Section 4-61dd(e)(1) prohibits any state officer or employee from taking any personnel action "in retaliation" for a disclosure of such information to the auditors of public accounts. Section 4-61dd(e)(2)(A) then provides in relevant part: "Not later than ninety days after learning of the specific incident giving rise to a claim that a personnel action has been threatened or has occurred in violation of subdivision (1) of this subsection, a state ... employee ... may file a complaint against the state agency ... concerning such personnel action with the Chief Human Rights Referee designated under section 46a-57. Such complaint may be amended if an additional incident giving rise to a claim under this subdivision occurs subsequent to the filing of the original complaint ..."
When the events alleged in the plaintiff’s whistleblower complaint occurred, General Statutes (Rev. to 2013) § 4-61dd(d) governed the proceedings before the referee. Although a subsequent amendment inserted a new subsection (c) and resulted in the redesignation of the operative provision as § 4-61dd(e), the amendments have no bearing on the merits of this appeal. In the interest of simplicity, this decision refers to the current revision of the statute. General Statutes § 4-61dd provides in relevant part:
(a) Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency ... or any Probate Court ... may transmit all facts and information in such person’s possession concerning such matter to the Auditors of Public Accounts ...
(e)(1) No state officer or employee ... shall take or threaten to take any personnel action against any state or quasi-public agency employee ... in retaliation for (A) such employee’s or contractor’s disclosure of information to (i) an employee of the Auditors of Public Accounts or the Attorney General under the provisions of subsection (a) of this section ...
(2)(A) Not later than ninety days after learning of the specific incident giving rise to a claim that a personnel action has been threatened or has occurred in violation of subdivision (1) of this subsection, a state or quasi-public agency employee ... may file a complaint against the state agency, quasi-public agency, [or] Probate Court ... with the Chief Human Rights Referee designated under section 46a-57. Such complaint may be amended if an additional incident giving rise to a claim under this subdivision occurs subsequent to the filing of the original complaint. The Chief Human Rights Referee shall assign the complaint to a human rights referee appointed under section 46a-57, who shall conduct a hearing and issue a decision concerning whether the officer or employee taking or threatening to take the personnel action violated any provision of this section ... If, after the hearing, the human rights referee finds a violation, the referee may award the aggrieved employee reinstatement to the employee’s former position, back pay and reestablishment of any employee benefits for which the employee would otherwise have been eligible if such violation had not occurred, reasonable attorneys fees, and any other damages. For the purposes of this subsection, such human rights referee shall act as an independent hearing officer. The decision of a human rights referee under this subsection may be appealed by any person who was a party at such hearing, in accordance with the provisions of section 4-183.
(B) The Chief Human Rights Referee shall adopt regulations, in accordance with the provisions of chapter 54, establishing the procedure for filing complaints and noticing and conducting hearings under subparagraph (A) of this subdivision.
The administrator moved to strike the plaintiff’s whistleblower complaint on the ground that all the personnel actions alleged in that complaint occurred more than ninety days before the plaintiff filed the complaint. The administrator noted that the only event alleged in the plaintiff’s complaint that occurred within the ninety-day statute of limitations was the issuance of the board’s decision terminating the plaintiff’s employment, but the plaintiff had not named the board as a respondent or claimed that the board acted in retaliation for the plaintiff’s alleged whistleblowing.
A motion to strike tests the legal sufficiency of a pleading and requires no factual findings. Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). Under the rules of practice that govern actions in the trial court, motions to strike usually may not be used to raise statute of limitations claims. See Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006). Even in the trial court, however, there are two exceptions to that general rule. One is when the parties agree that the complaint sets forth all the facts relevant to the statute of limitations issue. See Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). The second exception arises "when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right— it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 277 Conn. 344 n.12. In objecting to the motion to strike, the plaintiff in this case objected to the use of the motion to strike out of the order of pleadings prescribed by the Practice Book, but she did not argue that a motion to strike is an inappropriate procedure for raising a statute of limitations claim under § 4-61dd.
In her objection to the motion to strike, the plaintiff made three arguments to the referee. First, she argued that the motion to strike was filed out of order under Practice Book § § 10-6 and 10-7. Second, she argued that a forensic accountant examined her fiduciary records in the course of the administrator’s investigation following her suspension, and that the forensic accountant determined that there was no wrongdoing with respect to the plaintiff’s fiduciary roles. Third, she argued that there was no "final decision" pursuant to General Statutes § 4-183 until the board rendered its decision terminating her employment. The referee did not err in rejecting these arguments.
First, the argument that the order of pleadings before the referee are governed by the Practice Book is clearly wrong. Practice Book § 1-1(a) expressly states that "[t]he rules for the superior court govern practice and the procedure in the superior court ..." (Emphasis added.) The Practice Book does not govern proceedings before administrative agencies. See Vega v. Waltsco, Inc., 46 Conn.App. 298, 302, 699 A.2d 247 (1997) ("The Superior Court judges have inherent power to make rules governing procedure in the courts ... The judges exercise that power by enacting rules of practice that are expressly limited to governing practice and procedure in the Superior Court. Nowhere in those rules do the judges purport to extend their rule-making authority to procedures before administrative agencies"). To the contrary, the UAPA requires administrative agencies to develop their own rules of practice. See General Statutes § 4-167. In this case, the regulations that govern whistleblower proceedings before a human rights referee are set forth in § 4-61dd-1 through § 4-61dd-21 of the regulations of Connecticut State Agencies. Section 4-61dd-9(b) provides in relevant part that the presiding officer "shall establish a schedule for all prehearing matters ... including but not limited to ... (4) [m]otions directed to the pleadings." Unlike the Practice Book, the whistleblower regulations do not prescribe the order of pleadings after the complaint and the answer. Moreover, the presiding officer is clearly afforded discretion to manage the proceedings by issuing scheduling orders. In this case, the referee set a date for a dispositive motion, then extended that deadline by a week, and considered and ruled on the administrator’s motion to strike. The plaintiff’s claim that the Practice Book barred the motion to strike lacks merit.
General Statutes § 4-167(a) provides in relevant part: "In addition to other regulation-making requirements imposed by law, each agency shall ... [a]dopt as a regulation rules of practice setting forth the nature and requirements of all formal and informal procedures ..."
The plaintiff’s second claim to the referee was that a forensic investigation of her fiduciary accounts cleared her of wrongdoing with respect to those accounts. Her whistleblower complaint, however, contained no allegations concerning a forensic investigation. Nor is it clear how her argument regarding the forensic investigation affects the claim that her complaint was untimely. She argued to the referee (without supporting allegations in her complaint) that both the administrator and the administrator’s attorney testified about the forensic accountant’s review on August 27, 2014, before the three-judge board. She did not, however, ask for leave to amend her whistleblower complaint to add allegations regarding the forensic examination, nor did she explain how events occurring on or before August 27, 2014— more than ninety days before she filed her whistleblower complaint— rendered that complaint timely.
Finally, the plaintiff objected to the motion to strike on the ground that she had been unable to seek "judicial review" of the administrator’s action pursuant to General Statutes § 4-183 until she had a "final decision" in a "contested case." Her argument appeared to confuse the statutory procedure for judicial review of an agency action under § 4-183 with the procedure for seeking administrative review by the commission under § 4-61dd for actions allegedly taken or threatened in retaliation for whistleblowing. The plaintiff’s argument was mistaken in two respects. First, § 4-61dd does not require a "final decision" before a whistleblower complaint is filed; to the contrary, § 4-61dd(e)(2)(A) expressly authorizes the filing of a whistleblower complaint when a personnel action is merely "threatened" in retaliation for a party’s actions in reporting misconduct. Second, even if the requirements of § 4-183 could somehow be imported into § 4-61dd, § 4-183 would not apply to the proceeding before the board because that proceeding was not a "contested case" as that term has been defined by General Statutes § 4-166 and explained by the Supreme Court. According to the allegations of the plaintiff’s whistleblower complaint and the transcript of the board’s decision incorporated therein, the proceeding before the board was conducted pursuant to a Judicial Branch personnel policy established by the Supreme Court in 1985. It was not a hearing mandated by a statute.
General Statutes § 4-166(4) defines "contested case" in relevant part as "a proceeding, including but not restricted to rate-making, price-fixing and licensing, in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held ..."
"The test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for a hearing or which a hearing is in fact held." (Internal quotation marks omitted.) Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 164, 927 A.2d 793 (2007). "Under this test, if an agency is not statutorily required to hold a hearing, but nonetheless holds a hearing gratuitously, a contested case does not arise." Id.
The referee rejected the plaintiff’s arguments regarding the timeliness of her whistleblower complaint, concluding that § 4-61dd requires a complaint to be filed not later than ninety days after learning of the specific incident giving rise to the claim that a personnel action has been taken or threatened in retaliation for whistleblowing activity. ROR, pp. 30-31. The referee observed that the administrator’s "action of putting complainant on unpaid administrative leave is the only qualifying, potential adverse personnel action on which, the plaintiff may have made a whistleblower retaliation claim" under § 4-61dd; ROR, p. 30; and that the limitation period for that action, which occurred on October 31, 2013, expired on January 29, 2014, almost a year before the plaintiff filed her complaint. ROR, p. 31. The referee also concluded that she had no jurisdiction over any action by the board.
C
On appeal to this court, the plaintiff argues that (a) the referee improperly considered the motion to strike, which was filed out of the order of pleadings required by Practice Book § § 10-6 and 10-7; (b) the referee erroneously concluded that the ninety-day time limit was jurisdictional; (c) the plaintiff’s whistleblower complaint was timely because the plaintiff was required to exhaust her administrative remedies through the three-judge board hearing; and (d) the referee erred in holding that the only "qualifying event" was the administrator’s decision placing the plaintiff on administrative leave without pay on October 31, 2013. The plaintiff also argues that the referee’s decision that she lacked jurisdiction over the board was based on an erroneous view that the plaintiff had made a claim of sexual harassment and was unsupported by any legal discussion.
As discussed in section B above, the plaintiff’s argument regarding the applicability of Practice Book pleading rules fails because the Practice Book does not govern procedures in administrative agencies. See Practice Book § 1-1(a); see also Vega v. Waltsco, Inc., supra, 46 Conn.App. 302. The whistleblower proceeding before the referee was governed by the whistleblower regulations and was subject to the scheduling discretion of the presiding referee. As discussed below, the plaintiff’s remaining arguments on appeal also fail.
The plaintiff’s argument that the referee erroneously concluded that the ninety-day time limit in § 4-61dd was jurisdictional is refuted by the express language of the referee’s ruling. The referee stated: "This ninety-day filing requirement is technically not a jurisdictional prerequisite, but, in essence, is a mandatory statute of limitations. Thus, an untimely complaint will be barred unless waiver, consent, estoppel or some other compelling equitable tolling applies." ROR, pp. 30-31. In support of that ruling, the referee cited Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), which concerned filing deadlines for Title VII discrimination claims, and Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 283-85, 777 A.2d 645 (2001), which concerned filing requirements under the Connecticut Fair Employment Practices Act.
In Williams, the Supreme Court held that a 180-day period for filing a discrimination complaint was not a jurisdictional limitation but was nevertheless a mandatory statute of limitations. It further held that "a complaint that is not filed within the mandatory time requirement is dismissable unless waiver, consent, or some other compelling equitable tolling doctrine applies." Id., 284. The referee’s decision in this case applied the analysis of the Williams court to conclude that the ninety-day limitation period in § 4-61dd(e)(2)(A) is not jurisdictional but is nevertheless mandatory.
The referee’s decision in this case was also consistent with the Appellate Court’s decision in Saeedi v. Commissioner of Mental Health & Addiction Services, 143 Conn.App. 839, 848-52, 71 A.3d 619 (2013). In Saeedi, the Appellate Court relied on Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 258, when it rejected a claim that the ninety-day time limit in § 4-61dd(e) is jurisdictional. It did not reach the related question of whether the time limit is mandatory because the defendant in Saeedi had not properly asserted a statute of limitations defense. In this case, however, the administrator did assert a statute of limitations defense as its third special defense to the whistleblower complaint. ROR, pp. 292-93. Consistent with the logic of both Williams and Saeedi, the referee in this case correctly held that the ninety-day time limit in § 4-61dd(e)(2)(A) is not jurisdictional but is mandatory and failure to comply with it warrants striking a complaint unless waiver, consent, or other compelling grounds for equitable tolling exist.
The plaintiff’s claim that her complaint was timely because she was required to exhaust her administrative remedies through the three-judge board is unavailing on both procedural and substantive grounds. As a procedural matter, the plaintiff did not make this argument to the referee in her objection to the motion to strike, but only in a petition for reconsideration after the referee issued her ruling. As a substantive matter, the exhaustion argument fails because § 4-61dd(e)(2)(A) does not require exhaustion of other administrative remedies.
A plaintiff cannot raise issues on appeal that she failed to present to the hearing officer below. See Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005); see also Valente v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV-15-6029369-S (October 19, 2015, Schuman, J.) (61 Conn.L.Rptr. 138), affirmed per curiam, 169 Conn.App. 908, 155 A.3d 328 (2016). It is not sufficient to raise a claim in a petition for reconsideration when the claim could have been raised before a ruling was issued. General Statutes § 4-181a(a) authorizes a petition for reconsideration to point out an error of fact or law, to offer new evidence that is material where there was good cause for failing to offer it in the agency proceeding, and for other good cause. A petition for reconsideration, like a motion for reargument in court, is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs that could have been presented at the time of the original argument. See Opoku v. Grant, 63 Conn.App. 686, 693, 778 A.2d 981 (2001).
General Statutes § 4-181a(a)(1) provides: "Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered with materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition."
The plaintiff’s unpreserved exhaustion argument also fails on the merits. In making the argument, she relies on Campbell v. Plymouth, 74 Conn.App. 67, 82, 811 A.2d 243 (2002). This reliance is misplaced. Campbell involved a whistleblower retaliation action brought pursuant to General Statutes § 31-51m(c), which expressly requires a whistleblower to exhaust "all available administrative remedies" before bringing a civil action in Superior Court. General Statutes § 4-61dd(e)(2)(A), to the contrary, allows a whistleblower to file a complaint with the commission within ninety days after learning of "the specific incident giving rise to a claim that a personnel action has been threatened or has occurred ..." (Emphasis added.) It further provides that "[s]uch complaint may be amended if an additional incident giving rise to a claim under this subdivision occurs subsequent to the original complaint." (Emphasis added.) By imposing time limits for making claims regarding "specific incidents," the statute requires a complainant to take prompt action to preserve and present a whistleblower retaliation complaint. Allowing a complaint to be brought when an adverse action is only "threatened" but has not yet occurred serves to avert retaliatory conduct before it ripens into a more consequential action. The relatively short time limit in § 4-61dd(e) serves to foster the early resolution of whistleblower retaliation claims.
General Statutes § 31-51m(b) prohibits employers from penalizing employees who report a violation of any state or federal law or regulation to a public body. That prohibition may be enforced through a civil action brought pursuant to General Statutes § 31-51m(c), which provides in relevant part: "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 final administrative determination or within ninety days of such violation, whichever is later ..."
Indeed, it would make little sense to impose an exhaustion requirement on whistleblower retaliation complaints to the Chief Human Rights Referee, because the whistleblower complaint procedure set out in § 4-61dd(e)(2)(A) is itself an administrative proceeding that was intended as alternative to existing administrative avenues for whistleblower protection. See Conn. Joint Standing Committee Hearings, Government Administration & Elections, 2002 Sess., p. 205 (testimony of Attorney General Richard Blumenthal). In what is now codified as General Statutes § 4-61dd(e)(3), the legislature preserved the administrative remedies that had previously been codified in General Statutes (Rev. to 2001) § 4-61dd(b). Such other avenues included filing a grievance with the Employees’ Review Board pursuant to General Statutes § 5-202 or pursuing relief through a collective bargaining agreement process. The plaintiff’s argument that her whistleblower retaliation claim did not "ripen" until the board issued its decision terminating her employment ignores the plain language of § 4-61dd(e)(2)(A).
General Statutes § 4-61dd(e)(3) provides: "As an alternative to the provisions of subdivision (2) of this subsection: (A) A state or quasi-public agency employee who alleges that a personnel action has been threatened or taken may file an appeal not later than ninety days after learning of the specific incident giving rise to such claim with the Employees’ Review Board under section 5-202, or, in the case of a state or quasi-public agency employee covered by a collective bargaining contract, in accordance with the procedure provided by such contract; or (B) an employee of a large state contractor alleging that such action has been threatened or taken may, after exhausting all available administrative remedies, bring a civil action in accordance with the provisions of subsection (c) of section 31-51m." It is noteworthy that § 4-61dd(e)(3)(B) expressly retains an exhaustion requirement for the bringing of civil actions under General Statutes § 31-51m(c), but does not similarly impose an exhaustion requirement on bringing complaints to the Employees’ Review Board or the grievance procedures under collective bargaining agreements.
General Statutes (Rev. to 2001) § 4-61dd(b) provided: "No state officer or employee, as defined in section 4-141, no quasi-public agency officer or employee, no officer or employee of a large state contractor and no appointing authority shall take or threaten to take any personnel action against any state or quasi-public agency employee or any employee of a large state contractor in retaliation for such employee’s disclosure of information to the Auditors of Public Accounts or the Attorney General under the provisions of this section. A state or quasi-public agency employee alleging that such action has been threatened or taken may file an appeal within thirty days of knowledge of the specific incident giving rise to such claim with the Employees’ Review Board under section 5-202, or, in the case of state or quasi-public agency employee covered by a collective bargaining contract, in accordance with the procedure provided by such contract. An employee of a large state contractor alleging that such action has been threatened or taken may, after exhausting all available administrative remedies, bring a civil action in accordance with the provisions of subsection (c) of section 31-51m."
The plaintiff also claims on appeal that the referee erred in holding that the only "qualifying event" for a whistleblower retaliation claim was the administrator’s action placing her on unpaid administrative leave on October 31, 2013. She argues that the administrator engaged in repeated retaliatory acts. Although she is correct that her whistleblower complaint contained allegations of other personnel actions that occurred later than October 31, 2013, none of the acts alleged in the complaint that are attributable to the administrator occurred within the ninety-day period before she filed her whistleblower complaint.
More specifically, in response to question 8(B) on the whistleblower complaint form, the plaintiff alleged that the following personnel actions were taken in retaliation for her whistleblowing: (1) she was placed on unpaid administrative leave on October 31, 2013; (2) she was referred to the Office of Chief Disciplinary Counsel on November 6, 2013; (3) her unemployment compensation claim was opposed in January or February 2014; (4) on May 28, 2014, the administrator wrote to the chief court administrator to request a hearing to terminate the plaintiff’s employment; (5) the administrator and the chief disciplinary counsel responded to press inquiries after the administrator’s May 28, 2014 letter was posted on the Judicial Branch website, and (6) the plaintiff was subjected to a protracted proceeding to terminate her employment. ROR, pp. 311-12. None of these alleged actions by the administrator are said to have taken place later than the end of the evidentiary hearing before the three-judge board in September 2014. On October 6, 2014, the three-judge board convened only to render its decision; it did not receive evidence or hear argument on that date. ROR, pp. 72-73.
The numbering of these claims does not employ the numbering used in the whistleblower complaint (ROR, pp. 311-12) because several of the plaintiff’s numbered paragraphs refer to the October 31, 2013 action. This is a summary of the allegations.
The plaintiff’s whistleblower complaint states that the hearing before the three-judge board took place in "August and September 2014" but does not give the specific dates of the hearing. ROR, p. 310. Construing the complaint most favorably to the plaintiff, the court will assume that the hearing may have ended as late as September 30, 2014. If that were the case, the last day for the timely filing of a whistleblower complaint based on the administrator’s participation in that hearing would have been December 29, 2014. The plaintiff did not file her whistleblower complaint until January 5, 2015.
The plaintiff concedes that the administrator— the sole respondent in her whistleblower retaliation complaint— did not have the power to terminate her employment. That power resided solely in the three-judge board appointed by the chief court administrator to hear the evidence relevant to the recommended personnel action and decide whether such action was warranted. All of the allegedly retaliatory acts by the administrator were complete by the close of the evidentiary hearing before the board. At that hearing, the administrator bore the burden of proving grounds for the recommended termination by clear and convincing evidence. Nothing alleged in the whistleblower complaint suggests that the administrator took any action with respect to the plaintiff after the close of evidence before the three-judge board.
The plaintiff cites a Superior Court decision, Healey v. Dept. of Mental Retardation, Superior Court, judicial district of Hartford, Docket No. CV 96-0559173-S (Sept. 11, 1997, Barry, J.), in support of her claim that repeated acts of retaliation toll the limitations period. The Healey decision is distinguishable. It states summarily that "[t]he plaintiff pleads facts that allege a continuing course of conduct" that "continued past ... the date on which she filed her complaint." Here, the plaintiff’s whistleblower complaint did not allege any actions by the administrator that occurred after the close of the evidentiary hearing.
In her brief to this court, the plaintiff argued that the administrator failed to disclose "exculpatory" information to the three-judge board. Although she made a similar argument to the referee in her objection to the motion to strike, no such allegation appears in her whistleblower retaliation complaint, and she did not seek leave to amend the complaint to include such a claim. In her initial appeal brief to this court, she offered no legal analysis as to the significance of the information she now claims was withheld. As our Supreme Court has frequently stated, courts "are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstraction, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016). The allegation of nondisclosure was not made in the whistleblower complaint and the plaintiff failed to provide any legal analysis of its significance in her opening brief. This court declines to consider arguments that are not supported by the record and are not supported by legal analysis.
More specifically, the plaintiff claims that the administrator failed to disclose that a forensic accountant determined that the plaintiff reimbursed a conservator estate by $ 10, 000 more than she had actually taken in fees. The plaintiff never explains why she believes disclosure of this information would have affected the board’s decision. The court notes that the board’s decision was not based on a conclusion that the plaintiff ultimately took fiduciary fees to which she was not entitled. Rather, it found that between October 6, 2013, and October 27, 2013, the plaintiff submitted inconsistent versions of the accounts for the conservator estate to the chief counsel. The version submitted on October 6, 2013, showed $ 16, 000 in fiduciary fees; the version submitted on October 27, 2013, showed zero dollars in fiduciary fees but also reduced the value of the estate in an amount comparable to the fees that had been removed. ROR, pp. 86, 95. The board found that the plaintiff had manipulated the accounts in October 2013, to conceal fees that she had already taken. ROR, p. 95. After reviewing these inconsistent accounts, the chief counsel placed the plaintiff on unpaid administrative leave on October 31, 2013. ROR, p. 87. On December 16, 2013, the plaintiff filed accounts in the conservatorship proceeding that showed that she had taken $ 23, 500 in fees. ROR, p. 88. The clerk of the probate court informed her that her accounts were off by $ 157, 161.87 for the period from 2002 to 2005. ROR, p. 88. In January 2014, the probate judge gave the plaintiff specific instructions about revising the accounts. She filed a revised accounting on February 7, 2014, indicating that she had taken $ 33, 500 in fees. ROR, p. 95. The board found that she ultimately repaid the estate $ 33, 500 in fees she had taken. ROR, p. 88. Even if, as she claims, this amount was $ 10, 000 more than the amount she had actually taken in fees, her revised accounting— based on an order from the probate court overseeing the estate— would not alter the fact that she had attempted to conceal the fees in submissions to the chief counsel in October 2013. She has not offered any analysis to show that a conclusion that she subsequently miscalculated the fees to her own disadvantage would have had any effect on the board’s conclusion that she had engaged in deception in October 2013.
In her reply brief to this court, the plaintiff attempts to rely on the "continuing course of conduct" doctrine, based on the nondisclosure alleged in her initial brief but not in her whistleblower complaint, to establish that her complaint was timely. This argument is not supported by any allegations in the plaintiff’s whistleblower retaliation complaint, which does not allege any actions by the administrator after the close of the evidentiary hearing before the board. Equally as important, this argument was not made in the plaintiff’s initial brief to this court. "[I]t is improper to raise a new argument in a reply brief, because doing so deprives the opposing party of the opportunity to respond in writing." (Internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 74, 23 A.3d 668 (2011). The court declines to consider legal arguments that are not supported by the record and were improperly raised for the first time in the plaintiff’s reply brief.
D
The plaintiff also claimed that the referee improperly dismissed the complaint insofar as it related to the proceeding conducted by the three-judge board. She argued that the referee erroneously stated that the plaintiff had complained of sexual harassment. She further argued that the referee erroneously determined that she lacked statutory authority to overturn the board’s termination of the plaintiff’s employment. She argued, finally, that her whistleblower complaint set forth the elements of a prima facie case of retaliation and that no portion of it should have been dismissed.
In response to the plaintiff’s arguments regarding the dismissal of any claims relating to the board’s termination of the plaintiff’s employment, the commission argued that the plaintiff inadequately briefed her jurisdictional argument and it should be deemed abandoned. The administrator argued that the court should exercise its plenary power of review to strike all claims in the whistleblower complaint because all claims against the administrator were untimely and the plaintiff failed to allege any retaliatory actions by the board.
Because the referee’s decision did not fully explain the reasoning for the jurisdictional dismissal, the court remanded the matter to the referee for articulation. The referee articulated her decision, stating several reasons for her conclusion that she lacked jurisdiction under § 4-61dd as to any claims against the board. Although the court thereafter offered the parties an opportunity to submit briefs regarding any issues discussed in the articulation, no party responded to that offer. In this decision, the court will address only two points presented in the articulation.
The points addressed in this decision were raised by the parties before the articulation was ordered. The first point was raised in the plaintiff’s brief; the second point was raised in the administrator’s brief. The court does not need to, and does not, address other issues addressed by the referee in the absence of any argument by any party that such other issues should be addressed.
First, the referee stated that her dismissal of any claims as to the plaintiff’s termination by the board was not based on a belief that the plaintiff had claimed to have been subjected to sexual harassment. She stated that she mentioned sexual harassment in her ruling because of the ambiguity of the plaintiff’s claim that she was subjected to "aggressive and intimidating behavior" and "disparate treatment," claims that might fall under General Statutes § 46a-60 if based on gender or other protected classifications. The court concludes that the referee’s allusion to sexual harassment, even if mistaken, was not essential to the referee’s reasoning and therefore did not prejudice substantial rights of the plaintiff.
Second, the referee stated that her conclusion regarding lack of jurisdiction was based on the absence of any allegation of retaliatory action by the three-judge board. She observed that "[t]he complainant never made a [complaint] or disclosure to a qualifying individual regarding the conduct of the Board. Further, an adverse action taken by someone other than the Respondent or named party, would not be a qualifying adverse action." Articulation, p. 10. The court concludes that the referee properly concluded that the plaintiff had not made any claims against the board that come within the scope of the whistleblower statute.
General Statutes § 4-61dd(e)(1) prohibits any state officer or employee from taking or threatening to take any personnel action in retaliation for a disclosure of information to the state auditors or to the attorney general under the terms of § 4-61dd(a). General Statutes § 4-61dd(e)(2)(A) authorizes any employee against whom a personnel action has been taken or threatened to file a whistleblower complaint with the chief human rights referee.
See note 8, supra, for the relevant statutory text.
Reading these provisions together, it is clear that the commission’s chief human rights referee is authorized by § 4-61dd to hear a whistleblower retaliation complaint if the complaint alleges that (1) the complainant made a protected disclosure, and (2) a state officer or employee took or threatened an adverse personnel action in retaliation for the disclosure. The plaintiff’s whistleblower retaliation complaint alleged only that the plaintiff had made a protected disclosure regarding the administrator to the auditors of public accounts and that the administrator had retaliated against her in a number of ways, including suspending her without pay and referring her for professional discipline. The complaint does not allege that the plaintiff made any protected disclosure against the three-judge board or any member thereof. The complaint does not allege that the board terminated the plaintiff’s employment in retaliation for any complaint made by the plaintiff. The complainant did not name either the three-judge board or the Judicial Branch as a respondent.
It is undisputed that the administrator lacked the authority to terminate the plaintiff’s employment. Termination or other serious discipline could be imposed only by a three-judge board if it found just cause for such discipline after a hearing.
In an administrative appeal, the complaining party has the burden of demonstrating that her substantial rights were prejudiced by any alleged error. Tele Tech of Connecticut Corp. v. Dept. of Public Utilities Control, 270 Conn. 778, 788, 855 A.2d 174 (2004). The plaintiff has not shown that any alleged error by the referee in dismissing the "count" against the board prejudiced the plaintiff’s substantial rights, for the simple reason that there was no such count. The plaintiff, who is an attorney, chose not to name the Judicial Branch or the three-judge board as a respondent in her whistleblower retaliation complaint. At no point in the administrative proceeding or on appeal has the plaintiff alleged that the board’s action in terminating her employment was taken in retaliation for a disclosure to the state auditors or was in any way improper. She has not shown that her rights were prejudiced by the dismissal of a claim she never made.
CONCLUSION
For the reasons stated above, the plaintiff’s appeal is dismissed. Judgment may enter for the defendants.