Opinion
No. HHB-CV-09-5014038 S
November 5, 2010
MEMORANDUM OF DECISION ON APPEAL
The plaintiff, Patricia Robinson, appearing pro se, appeals from a "memorandum of decision" dated June 30, 2009 [#6, Return of Record] authored by David S. Knishkowy, presiding human rights referee for the Commission on Human Rights and Opportunities [CHRO], rejecting her complaints brought to the CHRO against the State of Connecticut Department of Mental Health and Addiction Services [DMHAS].
PROCEDURAL HISTORY:
On November 30, 2005, the plaintiff filed a complaint with CHRO, for illegal discriminatory practice, alleging she was denied reasonable accommodations for her disability, and was subjected to discrimination and harassment because of her race, color, age, physical disability and prior opposition to the employer's unlawful conduct. The claim of denial of reasonable accommodations was not pursued and the claim of age discrimination under the federal Age Discrimination in Employment Act [ADEA] was subsequently dismissed, leaving the state age discrimination claim pursuant to Section 46a-60(a) of the General Statutes, the federal Title VII, 42 U.S.C. Section 2000e2(a)(1) claim and the state claim under the Connecticut Fair Employment Practices Act [CFEPA], Section 46a-51, et seq., of the Connecticut General Statutes [#6, pp. 1, 25, RoR.]
Subsequently, the plaintiff twice amended her complaint to first add a claim of harassment and retaliation and then to add a claim of retaliatory termination.
CHRO referee Knishkowy held hearings over the course of six days in February 2009. The plaintiff was present at the hearings. At oral argument on this subject appeal, the plaintiff conceded that she was invited to participate but declined, relying on what she considered to be the representation of her interests by the attorney representing CHRO.
The record closed on June 8, 2009. [RoR #6, p. 2.] The plaintiff did not request that the record be reopened at any time thereafter.
On June 30, 2009, referee Knishkowy issued his decision. [RoR #6.] The memorandum of decision sets forth in great detail, 88 separate findings of fact, contained in pp. 3-24 of the 57-page memorandum. In the decision, the referee found no basis for any of the plaintiff's remaining claims of discrimination, harassment or retaliatory termination. At the request of the plaintiff [RoR #5], the decision was reconsidered and affirmed by presiding referee Jon P. Fitzgerald on August 3, 2009. [RoR #1.] On August 31, 2009, the plaintiff filed this appeal.
In support of the appeal, the plaintiff filed a brief with voluminous additional materials, which she wishes the court to consider outside of the Record. The plaintiff did not make application for leave to present additional evidence outside the record, pursuant to Section 4-183(h) of the Connecticut Statutes. The plaintiff made no showing that the additional evidence is material and that there were good reasons for failure to present such evidence in the CHRO hearings. The plaintiff did not petition for reconsideration or file a motion to remand.
The pro se plaintiff's brief was filed unsigned, in violation of Rule 4.2 of the Practice Book. At oral argument on the subject appeal, the defendant agreed to overlook the procedure infirmity, so as to allow the court to reach the merits of the plaintiff's appeal. The court then canvassed the plaintiff, who asserted that she had read the brief, that, to the best of her knowledge, information and belief there was good ground to support it, and that it was not interposed for delay. Upon this representation, the court accepted the brief as if it had been properly signed.
As the plaintiff was representing herself, the court made inquiry of her to determine if there was any basis to allow consideration of evidentiary materials outside the Record. The plaintiff again stated that she had relied on the representation of her side by the CHRO legal counsel. The plaintiff also stated that she discussed such evidence with the CHRO legal counsel, but that the attorney declined to offer such evidence at the hearing. It is noted that the CHRO legal counsel did, however, submit 110 exhibits in support of its position at the hearing. [RoR ##128-220.]
The reason as to why the attorney introduced certain evidence but not other is unknown, nor is it proper for review here. General Statutes Section 4-183(j) does not provide for such a review, nor has any other authority for such a review been proffered by the plaintiff.
The plaintiff's position that this court should consider evidence extraneous to the Record, based upon a claim that the CHRO attorney failed to present her evidence or did not present her complaint in the manner in which she requested, is not a valid reason to allow the court to review evidence outside the Record. At the hearing, the plaintiff was entitled to an attorney of her own choice or to represent herself. General Statutes Section 46a-84(d). She chose not to introduce any evidence at the hearing.
Because the plaintiff failed to take advantage of the options available to her or to follow proper procedure post-hearing which might allow the court to consider additional evidence, the court is limited in its review to the findings of the referee and the Record upon which such findings are based, pursuant to General Statutes Section 4-183(i). The plaintiff's materials submitted with her brief, therefore, were not considered by the court.
The defendant DMHAS filed a motion to strike the inadmissible evidence, to which the plaintiff filed a "response," again unsigned. Following argument on the merits of the motion and its opposition, the motion to strike (117.00) was granted by the court, which then proceeded to hear argument of the merits of the appeal.
STANDARD OF REVIEW:
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.
General Statutes Section 4-183(j)
CLAIMS ON APPEAL:
In reviewing the claims made by the plaintiff, the court follows the "substantial evidence test" of the Uniform Administrative Procedure Act. "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to try the case de novo, . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Citation omitted; internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
This court's "ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 859-60, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005).
There is a limited scope of review to be exercised by the trial court in reviewing a CHRO determination that there is no reasonable cause to believe that a discriminatory practice has been committed. Ezikovich v. Commission on Human Rights and Opportunities, 57 Conn.App. 767, 770, 759 A.2d 494, cert. denied, 253 Conn. 925, 754 A.2d 796 (2000). The court must determine whether there is "substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Citations omitted.) Dufraine v. Commission on Human Rights and Opportunities, 236 Conn. 250, 259, 673 A.2d 191 (1996); Adriani v. Commission on Human Rights and Opportunities, 220 Conn. 307, 314-15, 596 A.2d 426 (1991). "[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . This `substantial evidence rule' is embodied in General Statutes § 4-183(j)(5) and (6)." [Internal citations omitted.] Dufraine, supra, 236 Conn. at 259-60.
It is unclear from her brief under which of the bases of General Statutes Section 4-183(j) the plaintiff seeks review. At oral argument, she stated she was seeking a review on the basis of Section 4-183(j)(5). However, in reading the brief in a light favorable to the plaintiff, she appears to seek review on the basis of Section 4-183(j)(6). The court's review will encompass both and will discuss the assertions made by the plaintiff in the order presented in her brief.
The plaintiff first asserts that the referee improperly concluded that the defendant "did not violate the plaintiff's rights pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)" [plaintiff's brief, p. 26] and allegedly set his own standard for determining a hostile work environment by characterizing the plaintiff as "unquestionably thin-skinned." [RoR, #6, p. 56.] The plaintiff is not making reference to any particular finding of fact. Rather, the "thin-skinned" comment was made by the referee in concluding from his findings that the defendant was not subjected to "an objectively hostile work environment." [RoR, #6, p. 56.] While the referee may be accused of inflaming the plaintiff's emotions by characterizing her as "thin-skinned," there is ample factual basis for this conclusion [RoR #6, findings of fact 9, 13, 15, 47, 48, 50, 60, and 69] as well as the conclusion that the plaintiff was not subjected to an objectively hostile work environment. [RoR #6, findings of fact 20, 26, 27, 28, 35, 63, 64, 65, 68, 69, 85-88]. The plaintiff has offered nothing contained in those findings which would make the referee's conclusion arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion as required by General Statutes Section 4-183(j)(6). The referee properly set forth the shifting burden analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and determined that the defendant had met its prima facie burden, shifting the burden of proof back to the plaintiff.
While it appears that the plaintiff is challenging the referee's conclusions as to hostile work environment, rather than his findings, an analysis made as to General Statutes Section 4-183(j)(5) as well.
"A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn.App. 325, 330-31, 983 A.2d 293 (2009). The plaintiff has made no showing that the referee's findings of fact were not based upon the evidence presented. The court has no basis to believe a mistake has been committed. The plaintiff's claim of a clearly erroneous decision is without merit.
The plaintiff's next assertion is that her "best evidence" is her performance appraisals. It is unclear as to what this "best evidence" would show or refute. In any event, the performance appraisals are not part of the record and cannot be considered, as discussed above.
The plaintiff next asserts that her work duties were not defined. It is unclear how the plaintiff is attacking the findings of the referee by this assertion and it does not appear to be a topic reviewable pursuant to General Statutes Section 4-183(j). The plaintiff makes no reference to any particular finding of the referee which she claims is clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion.
The plaintiff next states the testimony of the defendant's witnesses is contradicted by the aforementioned performance appraisals. Again, the performance appraisals are not part of the record and not subject to review. The plaintiff makes no reference to any particular finding of the referee which she claims is clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. Her assertion is not reviewable pursuant to General Statutes Section 4-183(j).
The next topic of the plaintiff's brief is in the form of a question, that being whether her supervisor was experienced or qualified. The plaintiff again raises the issue of the performance appraisals which are not in evidence and then questions how the referee could find the supervisor to be credible. "Weighing conflicting evidence is a matter solely committed to a fact finder." Verspyck v. Franco, 274 Conn. 105, 115, 874 A.2d 249 (2005). The plaintiff makes no reference to any particular finding of the referee which she claims is clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. Her assertion is not reviewable pursuant to General Statutes Section 4-183(j).
The plaintiff next claims an evaluation by her of a mental health examiner was unfair because the examiner was not impartial. "The weight given to this bias [sic] report by Hearing Officer was wrong." The argument is that the referee accepted the examiner's report without question. At the hearing, the plaintiff offered nothing to rebut the conclusions of the subject report. The weight assigned to it is the role of the referee. See Verspyck, id. The plaintiff makes no reference to any particular finding of the referee which she claims is clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. Her assertion is not reviewable pursuant to General Statutes Section 4-183(j).
The plaintiff next asserts the referee improperly relied on a memo and hearsay testimony. The plaintiff fails to identify the evidence at issue. There is no reference to any objection interposed by the plaintiff at the hearing concerning this evidence. The plaintiff makes no reference to any particular finding of the referee which she claims is clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. Her assertion is not reviewable pursuant to General Statutes Section 4-183(j).
Next, the plaintiff complains that the defendant accepted some employees' excuses for their actions but not hers. This appears to be a claim that she was treated differently and one would have to presume she is stating the disparate treatment was based on race, color, age or some other protected class. Unfortunately, the plaintiff makes no reference to any finding of fact which she disputes. The referee reviewed the situations of four other disciplined employees in RoR #6, findings of fact 85 through 88 analyzed the shifting burdens under McDonnell Douglas Corp. v. Green, supra, and its progeny, analyzed the circumstances of each of the other disciplined employees on pp. 34 through 36 of his memorandum of decision and concluded that, with the defendant meeting its prima facie burden, the plaintiff failed to meet the ultimate burden of proving her claim of discrimination. There is nothing clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion in the findings of fact, the analysis or the conclusion of the referee.
The plaintiff next complains that the referee did not consider the defendant's past practice of accepting after-the-fact explanation for why she failed to call in or show up for work. She refers to no proffer of evidence of this assertion made at the hearing. The plaintiff makes no reference to any particular finding of the referee which she claims is clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. Her assertion is not reviewable pursuant to General Statutes Section 4-183(j).
The plaintiff next attacks the methodology of how the referee weighed evidence. It is not the role of this court to substitute its own judgment for that of the referee. Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988). The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. It is not a de novo proceeding. The plaintiff must establish that substantial evidence does not exist in the record as a whole to support the referee's decision. Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. at 584, 821 A.2d 734 (2003).
The plaintiff posits her argument in the form of questions and merely argues that how she conducted herself was "the least disruptive method . . ." This assertion is not an attack on any particular finding and is not reviewable pursuant to General Statutes Section 4-183(j). She has not met her burden.
The next contention of the plaintiff concerns her subjective version of what transpired at a meeting which she attended on September 12, 2005. Although she does not reference any particular finding of fact, it appears to be RoR #6, findings of fact 57 through 65. The plaintiff has not articulated how the referee's finding was clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. She merely argues that her subjective version is the correct one. Her assertion is not reviewable pursuant to General Statutes Section 4-183(j).
The plaintiff calls into question a statement contained on page 29 of the referee's memorandum of decision, in which the referee states, "Moreover, her numerous absences likely reduced the hours available to complete her work in a timely fashion." From that statement, the plaintiff claims that the referee considered her workers' compensation claims negatively against her. There is no support for this claim. The referee is merely noting, within the context of the plaintiff's claim that she was overloaded with work, that her absence from work likely reduced the time in which she had to complete her assignments. The plaintiff has not articulated how the referee's finding was clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. Her assertion is not reviewable pursuant to General Statutes Section 4-183(j).
Next, the plaintiff claims that she was the only one who didn't know this allegedly was the referee's last case before retiring. There is no evidence of this "fact" before the court and the court is hard pressed to know how this would impact the validity of the referee's findings of fact. The court finds the memorandum of decision to be thorough and comprehensive. This is not an issue reviewable pursuant to General Statutes Section 4-183(j).
The next two assertions by the plaintiff are questions posited by the plaintiff. The questions are, "Did Human Resources Owe a Duty to the Employee?" and "Whether a Fitness for Duty Evaluation for physical reasons would have been appropriate rather than a mental health examination?" There are no references to any findings of fact or conclusions of the fact finder. Rather, the plaintiff appears to raise issues which would not appear to have been raised by her at the hearing. These questions are not reviewable pursuant to General Statutes Section 4-183(j).
Next, the plaintiff attacks CHRO for filing a motion to dismiss. It is presumed that the plaintiff refers to the motion to dismiss (105.00) filed by CHRO as to this appeal. This claim is not reviewable pursuant to General Statutes Section 4-183(j).
The plaintiff also attacks CHRO and her own counsel for improperly communicating about her. It is essentially a claim that two attorneys spoke about her behind her back. How this relates to the findings of fact and conclusions of the fact finder is unclear. This claim is not reviewable pursuant to General Statutes Section 4-183(j).
The last claim of the plaintiff consists of two statements: "A vigorous defense by an employee of their [sic] rights does not equate or make the employee a bad apple. The due process cause [sic] as well as the union contract gives the Plaintiff the right to litigate and to advocate for herself." There is no actual claim presented here and the statements are not reviewable pursuant to General Statutes Section 4-183(j).
In summary, this court's review of an agency's decision is limited, pursuant to statute. The plaintiff's appeal is nothing more than a series of statements contesting the facts found, and conclusions made, by the referee, who did not find the plaintiff to be a particularly credible witness. "`It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, CT Page 21600 248 Conn. 904, 731 A.2d 310 (1999)." Seligson v. Brower, 109 Conn.App. 749, 952 A.2d 1274 (2008).
The court has no basis upon which to determine that the facts and conclusions of the referee were clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. There is in the Record ample and substantial evidence to support the referee's findings and conclusions. The plaintiff has failed to meet her burden pursuant to General Statutes Section 4-183(j).
CONCLUSION:
The appeal is dismissed. No costs are awarded to any party.