Kovachich v. Dept. of Mental Health and Addiction Services ( 2020 )


Menu:
  • ***********************************************
    The “officially released” date that appears near the be-
    ginning of each opinion is the date the opinion will be pub-
    lished in the Connecticut Law Journal or the date it was
    released as a slip opinion. The operative date for the be-
    ginning of all time periods for filing postopinion motions
    and petitions for certification is the “officially released”
    date appearing in the opinion.
    All opinions are subject to modification and technical
    correction prior to official publication in the Connecticut
    Reports and Connecticut Appellate Reports. In the event of
    discrepancies between the advance release version of an
    opinion and the latest version appearing in the Connecticut
    Law Journal and subsequently in the Connecticut Reports
    or Connecticut Appellate Reports, the latest version is to
    be considered authoritative.
    The syllabus and procedural history accompanying the
    opinion as it appears in the Connecticut Law Journal and
    bound volumes of official reports are copyrighted by the
    Secretary of the State, State of Connecticut, and may not
    be reproduced and distributed without the express written
    permission of the Commission on Official Legal Publica-
    tions, Judicial Branch, State of Connecticut.
    ***********************************************
    VIRLEE KOVACHICH v. DEPARTMENT OF MENTAL
    HEALTH AND ADDICTION SERVICES
    (AC 41976)
    Alvord, Moll and Norcott, Js.
    Syllabus
    The plaintiff employee sought to recover damages for the defendant employ-
    er’s alleged violation of the Connecticut Fair Employment Practices Act
    (§ 46a-51 et seq.). The plaintiff alleged that the defendant discriminated
    against her on the basis of her disability as a result of the defendant’s
    failure to provide her with a reasonable accommodation and retaliated
    against her for filing a complaint of disability discrimination. The plaintiff
    suffered from allergic and non-allergic rhinitis and asthma and was
    sensitive to scents, and, as a result, she requested a scent-free work
    environment and a HEPA filter for the office. The defendant’s American
    with Disabilities Act review committee approved the plaintiff’s request
    for a reasonable accommodation. Some employees, however, did not
    comply with the scent-free working environment designation. The plain-
    tiff filed a complaint with the Commission on Human Rights and Oppor-
    tunities and it issued a release of jurisdiction to sue. The court rendered
    judgment for the plaintiff, from which the defendant appealed and the
    plaintiff cross appealed. Held:
    1. Contrary to the plaintiff’s claim, the defendant’s appeal was not moot
    because it failed to challenge the court’s judgment on the plaintiff’s
    retaliation claim; the defendant challenged evidence the trial court
    admitted and relied on to determine that the defendant failed to engage
    in the interactive process and this determination was not limited to the
    plaintiff’s discrimination claim and, thus, because the two claims and
    the trial court’s rulings thereon were intertwined, the defendant’s appeal
    sufficiently challenged the court’s judgment as to both counts.
    2. The trial court improperly imposed liability on the defendant on the basis
    of inadmissible evidence, and, accordingly, the case was remanded for
    a new trial; the court impermissibly considered e-mails exchanged
    between the parties that constituted settlement communications on the
    issue of liability, and based its finding that the defendant had failed to
    engage in the interactive process on those e-mails; moreover, in light
    of this court’s reversal of the judgment of the trial court and remand
    for a new trial, it was not necessary to address the plaintiff’s claims
    raised in her cross appeal.
    3. The trial court improperly precluded admission of the plaintiff’s deposition
    responses that had been amended on an errata sheet; the plaintiff’s
    original deposition responses were admissible as they remained a part
    of the record, and the defendant was permitted to use the plaintiff’s
    deposition testimony, errata sheet notwithstanding, pursuant to the
    applicable provision (§ 8-3) of the Connecticut Code of Evidence as a
    statement made by a party opponent and the applicable rule of practice
    (§ 13-31 (a) (3)), which allows deposition testimony of a party to be
    used by an adverse party for any purpose; moreover, once the original
    responses were entered into evidence, the plaintiff would be permitted to
    introduce the amended answers and explain the reasons for the change.
    4. The trial court erred in concluding that all statements made by employees
    of the defendant were admissible pursuant to the applicable provision
    (§ 8-3 (1) (D)) of the Connecticut Code of Evidence; the plaintiff failed
    to establish, and the trial court did not determine, that the statements
    sought to be admitted related to a matter within the scope of the declar-
    ants’ employment and, in the absence of an analysis whether the state-
    ments did in fact relate to a matter within the scope of the declarants’
    employment, the statements should not have been admitted.
    Argued December 5, 2019—officially released July 28, 2020
    Procedural History
    Action to recover damages for, inter alia, alleged
    employment discrimination, and for other relief,
    brought to the Superior Court in the judicial district of
    New London, where the matter was tried to the court,
    Hon. Joseph Q. Koletsky, judge trial referee; judgment
    for the plaintiff, from which the defendant appealed
    and the plaintiff cross appealed. Reversed; new trial.
    Clare Kindall, solicitor general, with whom, on the
    brief, were William Tong, attorney general, and Mat-
    thew F. Larock and Nancy A. Brouillet, assistant attor-
    neys general, for the appellant-appellee (defendant).
    Jacques J. Parenteau, with whom was Magdalena
    Wiktor for the appellee-appellant (plaintiff).
    Michael E. Roberts, Scott Madeo, and Kimberly A.
    Jacobsen filed a brief for the Connecticut Commission
    on Human Rights and Opportunities as amicus curiae.
    Opinion
    ALVORD, J. The defendant, Department of Mental
    Health and Addiction Services, appeals from the judg-
    ment of the trial court rendered following a court trial
    in favor of the plaintiff, Virlee Kovachich. The plaintiff
    filed a cross appeal. On appeal, the defendant claims
    that the court improperly (1) admitted into evidence
    settlement communications between the parties, (2)
    found that the defendant violated the Connecticut Fair
    Employment Practices Act (act), General Statutes § 46a-
    60 et seq., by providing insufficient accommodations
    to the plaintiff and failing to engage in the interactive
    process required under the act, (3) precluded the defen-
    dant from cross-examining the plaintiff with deposi-
    tion testimony that was changed through an errata sheet,
    and (4) determined that hearsay statements by any state
    employee, including statements from the plaintiff’s union
    representatives, were admissible against the defendant
    as admissions by a party opponent.1 On cross appeal, the
    plaintiff claims that the court improperly denied both her
    posttrial request to file a second amended complaint to
    conform to the proof at trial and motion to open the
    judgment.2We agree with the defendant’s first, third, and
    fourth claims and, accordingly, reverse the judgment of
    the trial court.3
    The following facts, as found by the trial court or other-
    wise undisputed, and procedural history are relevant
    to our resolution of this appeal. The plaintiff worked
    as a licensed practical nurse for the defendant and
    primarily was assigned to the Brief Care Unit of the
    Southeastern Mental Health Authority (SMHA). At some
    point during her employment with the defendant, the
    plaintiff began experiencing reactions to scents. On Jan-
    uary 24, 2011, the plaintiff submitted to the defendant
    a medical provider report from her physician, Doron
    J. Ber, which stated that she ‘‘has allergic and non-aller-
    gic rhinitis and asthma. These conditions are intermit-
    tent, but can be 100 [percent] debilitating.’’ The plaintiff
    requested from the defendant accommodations in the
    form of a ‘‘scent free work environment’’ and a ‘‘HEPA
    filter for the office.’’
    In an April 14, 2011 letter, Tommy Wilson, the chair-
    person of the defendant’s review committee pursuant
    to the Americans with Disabilities Act of 1990 (ADA),
    42 U.S.C. § 12101 et seq., notified the plaintiff that ‘‘the
    . . . committee approves your request for a reasonable
    accommodation.’’ The letter set forth the following as
    ‘‘the committee’s final reasonable accommodations’’:
    ‘‘1. Upon admission to the brief care unit all clients are
    to turn over all aerosol sprays to be locked up and inven-
    toried by staff with their personal belongings. Upon
    being discharged from the brief care unit all inventoried
    aerosol sprays along with their belongings are to be
    returned. 2. That the scent-free working environment
    signs remain up on the unit and that all staff is notified
    of the scent-free environment and what that means. 3.
    To notify any overtime staff that the brief care unit is
    scent-free. 4. The agency is to provide a working air fil-
    tration system with a HEPA filter; the filter system can
    be the existing filter system or a portable unit that is
    able to filter the entire brief care office area. The nurse’s
    station is 294 square feet and the entire unit is 8470
    square feet.’’ Following the approval of the plaintiff’s
    accommodations, some employees did not comply with
    the scent-free working environment designation. In a
    February 1, 2012 letter to Cheryl Jacques, the director
    of SMHA, the plaintiff’s counsel sought ‘‘to engage in an
    interactive process with respect [to] the provision of
    reasonable accommodations for [the plaintiff’s] disabil-
    ity and ensuring that she is adequately protected in the
    workplace.’’ The plaintiff’s counsel requested a meeting
    to discuss the plaintiff’s concerns and potential accom-
    modations that could be made to address those con-
    cerns. A meeting was held on April 3, 2012. The plaintiff,
    her counsel, Wilson, and Human Resources Director
    Theresa Tiska attended. The attendees discussed the
    plaintiff’s requests that the defendant include a notice
    on the Brief Care Unit overtime sign-up sheet, provide
    educational materials to coworkers, and take additional
    action to enforce the scent-free working environment.
    On April 13, 2012, the plaintiff filed a complaint with
    the Commission on Human Rights and Opportunities
    (commission), alleging that she was denied reasonable
    accommodations on the basis of a disability. The com-
    mission issued a release of jurisdiction to sue on Septem-
    ber 9, 2013.4 On September 30, 2013, the plaintiff com-
    menced the present action.5 In count one of the operative
    complaint filed March 4, 2015, the plaintiff alleged that
    the defendant had discriminated against her in the terms
    and conditions of her employment by failing to provide
    reasonable accommodations for the plaintiff’s disability
    and by failing to engage in a good faith interactive pro-
    cess in violation of the act. The plaintiff alleged that she
    continued to suffer adverse incidents caused by cowork-
    ers’ violations of the scent-free working environment
    designation. She alleged that the defendant made no ser-
    ious effort to educate the workforce and that ‘‘[t]he lack
    of educational efforts has led to misunderstandings and
    has prevented voluntary compliance with the restric-
    tion.’’ She alleged that the defendant refuses to enforce
    Work Rule 13, which prohibits intentionally interfer-
    ing with the productivity of another employee, when an
    employee intentionally interferes with the plaintiff’s
    ability to perform her work by knowingly wearing a
    chemical-based fragrance. She further alleged that the
    defendant had ‘‘failed to assist its own managers in the
    implementation of the fragrance free restriction, includ-
    ing [a] policy drafted in April, 2011, to the frustration of
    on line managers and union delegates responsible for
    the safety of the employees they work with day-to-day.’’
    Lastly, the plaintiff alleged that the defendant ‘‘failed to
    engage in a good faith interactive process designed to
    solve the reasonable accommodation problem by failing
    to meet with [the] plaintiff and her representatives and
    rejecting all of [the] plaintiff’s proposals without offering
    alternative solutions.’’ She alleged that she ‘‘has suffered
    the loss of wages and benefits, including significant com-
    pensatory and sick time, and has suffered emotional
    distress, loss of enjoyment of life and harm to her repu-
    tation.’’
    In count two, the plaintiff alleged that the defendant
    ‘‘has retaliated against [her] for filing a complaint of
    disability discrimination, has failed to engage in a good
    faith interactive process, and has failed to accommo-
    date her disability.’’ She further alleged that she had been
    constructively discharged because of her disability. She
    alleged that the defendant retaliated against her ‘‘for
    opposing the discriminatory conduct [to] which she was
    subjected by not providing the accommodations sought
    leading to the constructive discharge’’ of the plaintiff.
    She alleged that as a result of the defendant’s conduct,
    she ‘‘has suffered damages including, but not limited
    to, loss of wages, loss of enjoyment of life, emotional
    distress and attorney’s fees and costs.’’ On December
    2, 2015, the defendant filed an answer and special
    defenses. The plaintiff filed her reply on November
    30, 2016.6
    The matter was tried to the court, Hon. Joseph Q.
    Koletsky, judge trial referee, in March and April, 2018.
    On April 20, 2018, the court issued its oral decision
    rendering judgment for the plaintiff, determining that
    the plaintiff had proven her allegations of violations of
    the act. The court found ‘‘that the plaintiff was deprived
    of $3800 of additional pension income, finding it more
    probable than not the plaintiff would have worked for
    two more years but for the wrongful actions of the
    defendant.’’ The court further found that the plaintiff
    was constructively discharged. It awarded the plaintiff
    $125,000 in damages for ‘‘emotional distress caused by
    the actions of the defendant . . . .’’
    On April 20, 2018, the plaintiff filed a motion for
    attorney’s fees, and the defendant filed an objection
    on July 17, 2018. The plaintiff filed a memorandum in
    support of her motion for attorney’s fees on July 25,
    2018, and the defendant filed an objection on August
    22, 2018. At the conclusion of oral argument on August
    23, 2018, the court orally granted the motion, awarding
    the plaintiff attorney’s fees in the amount of $415,389.50.
    The plaintiff subsequently filed a motion to open the
    judgment and a request for leave to amend her com-
    plaint to conform to the proof at trial, both of which
    were denied. The defendant appealed, and the plaintiff
    cross appealed.
    As a threshold matter, we address the plaintiff’s con-
    tention that the defendant’s appeal is moot because it
    ‘‘does not contest the trial court’s factual and legal
    finding of retaliation violating § 46a-60 (a) (4).’’ We
    disagree.
    ‘‘Mootness is a question of justiciability that must be
    determined as a threshold matter because it implicates
    [a] court’s subject matter jurisdiction . . . . In deter-
    mining mootness, the dispositive question is whether
    a successful appeal would benefit the plaintiff or defen-
    dant in any way.’’ (Internal quotation marks omitted.)
    Stamatopoulos v. ECS North America, LLC, 172 Conn.
    App. 92, 97, 
    159 A.3d 233
    (2017).
    The plaintiff argues that each of the claims raised by
    the defendant on appeal concerns only the plaintiff’s
    claim of discrimination asserted in count one of her
    complaint. She maintains that ‘‘even if this court were
    to agree with [the] defendant on count one, no prac-
    tical relief can be provided in light of the trial court’s
    unchallenged finding of retaliation on count two.’’ The
    defendant responds that the plaintiff and the court
    relied on the same nexus of facts for both counts and
    that the plaintiff’s ‘‘retaliation claims were completely
    enmeshed with her disability discrimination claims that
    [the] defendant failed to accommodate her disability
    and failed to engage in a good faith interactive process.’’
    Emphasizing that the court ‘‘failed to separate the
    counts or issue separate findings for the counts,’’ it
    argues that it has challenged the entirety of the court’s
    ruling. We are persuaded that we have jurisdiction to
    address the defendant’s appellate claims.
    We do not construe the defendant’s appellate claims
    as limited to challenging the court’s judgment on the
    plaintiff’s discrimination claim only. As we conclude
    subsequently in this opinion, the court improperly
    admitted into evidence settlement documents and
    relied on those documents in support of its determina-
    tion that the defendant failed to engage in the interactive
    process. That error is not confined to the plaintiff’s
    discrimination claim. The plaintiff’s retaliation count
    specifically alleged that the defendant had ‘‘retaliated
    against [her] for filing a complaint of disability discrimi-
    nation, [had] failed to engage in a good faith interactive
    process, and [had] failed to accommodate her disabil-
    ity.’’ Thus, we agree with the defendant that the plain-
    tiff’s retaliation claim was entwined with her discrimi-
    nation claim. Because the claims in the trial court and
    the court’s rulings thereon were interrelated, the defen-
    dant’s appeal sufficiently challenges the court’s render-
    ing of judgment on both counts. See In re Elijah C.,
    
    326 Conn. 480
    , 496, 
    165 A.3d 1149
    (2017) (concluding
    that appeal was not moot for failure to adequately brief
    challenge to independent basis where challenge to
    court’s second finding was inextricably linked with
    challenge to first finding and, considering interdepen-
    dence of claims, respondent’s second claim was suffi-
    ciently clear to permit court to address it on its merits).
    Accordingly, we conclude that the defendant’s appeal
    is not moot.
    Before turning to the merits of the defendant’s claims,
    we briefly set forth the standard of review applicable
    to those claims. ‘‘When presented with an evidentiary
    issue, as in this case, our standard of review depends
    on the specific nature of the claim presented. . . . [T]o
    the extent a trial court’s admission of evidence is based
    on an interpretation of [law], our standard of review is
    plenary. . . . A trial court’s decision to admit evidence,
    if premised on a correct view of the law, however,
    calls for the abuse of discretion standard of review.’’
    (Citations omitted; emphasis omitted; internal quota-
    tion marks omitted.) Midland Funding, LLC v. Mitch-
    ell-James, 
    163 Conn. App. 648
    , 653, 
    137 A.3d 1
    (2016).
    I
    We first address the defendant’s claim that the court
    improperly admitted into evidence settlement commu-
    nications exchanged between the parties during the
    mandatory mediation process before the commission
    and relied on those communications in finding the
    defendant liable for violations of the act. We agree with
    the defendant.
    The following additional facts and procedural history
    are relevant to this claim. On March 1, 2018, the defen-
    dant filed a motion in limine arguing, inter alia, that
    evidence of settlement negotiations, including docu-
    ments that were part of the commission’s mandatory
    mediation process, were inadmissible. It first main-
    tained that the offers to compromise were inadmissible
    pursuant to § 4-8 of the Connecticut Code of Evidence.
    It also argued that the documents were inadmissible
    because they were part of the mandatory mediation
    process required by General Statutes § 46a-83.7The
    court reserved ruling on the motion. During the plain-
    tiff’s direct examination on March 8, 2018, the plaintiff’s
    counsel sought to introduce into evidence an April 29,
    2013 e-mail from the plaintiff’s counsel to Assistant
    Attorney General Jill Lacedonia (exhibit 13). Exhibit
    13, which has a subject line stating ‘‘RE: Kovachich—
    request for demand,’’ asks to arrange a time to talk,
    mentions certain issues on which the parties purport-
    edly reached agreement ‘‘at the last mediation session,’’
    attaches information regarding policies adopted by cer-
    tain employers regarding scent-free working environ-
    ments, and discusses the state of the law surrounding
    scent-free working environments. It concludes by stat-
    ing: ‘‘In any event if you are willing to work with me
    to find a solution then we can see if litigation can be
    avoided. I am available on Friday.’’
    At trial, the plaintiff’s counsel stated that he was
    seeking to admit exhibit 13 ‘‘for the purpose stated that
    it was compiled by her attorney for the purpose of pro-
    viding it to the state.’’ The trial court inquired whether
    it was offered ‘‘for the truth,’’ and the plaintiff’s counsel
    responded: ‘‘Nope, for the purpose of communication.’’
    The defendant’s counsel objected to exhibit 13, stat-
    ing that her ‘‘chief objection is these are settlement
    demands’’ and seeking to direct the court’s attention to
    the statutory provision governing mandatory mediation
    at the commission.8 The court overruled the objection,
    stating that it was ‘‘unable to [perceive] a settlement
    demand in exhibit 13, and the document is nonhearsay,
    not offered for the truth of the statements asserted.’’
    The plaintiff’s counsel also offered into evidence a
    May 30, 2013 e-mail from him to Assistant Attorney Gen-
    eral Lacedonia (exhibit 14). The e-mail attaches a num-
    ber of April, 2013 e-mails regarding recent instances of
    scent exposures. The text of the e-mail states in part:
    ‘‘Virlee is not going to accept a solution that has her
    apply for disability retirement as you suggested. We
    thin[k] that is the wrong approach to disability that can
    be accommodated. We are going to move forward with
    this case. We would like that to be in context of the
    agency changing its approach—to formally adopt a pol-
    icy that is endorsed by the highest levels of manage-
    ment, to educate, and to empower supervisors to take
    action when employees intentionally disrespect the
    right to breathe despite e-mails asking for awareness.
    Let me know what solutions your side proposes.’’ The
    defendant’s counsel objected to exhibit 14, stating:
    ‘‘They go to settlement discussions at the [c]ommission
    . . . and therefore, should not be admitted . . . .’’ The
    court overruled the objection and admitted exhibit 14
    in full.
    The plaintiff’s counsel also sought to introduce into
    evidence a July 22, 2013 letter he wrote to Daniel Sal-
    erno, an investigator with the commission, and copied
    to the plaintiff and Assistant Attorney General Lacedo-
    nia (exhibit 12).
    Exhibit 12, a letter, begins by stating: ‘‘I am writing
    at your request to clarify the demands of our client with
    respect to her claim of disability discrimination.’’ The
    letter asserted the following demands: (1) ‘‘[The defen-
    dant] will adopt a policy of scent restriction following
    consultation with the union and its membership will
    adopt a scent free policy modeled on the attached
    Human Resources Administrative Rule implemented by
    the City of Portland, Oregon. The policy will apply to
    all . . . buildings [controlled by the defendant]. The
    policy will request that employees refrain from the use
    of strongly scented products. Supervisors will be per-
    mitted to enforce the policy when it becomes apparent
    that the use of a scent is interfering with a [cowork-
    er’s] ability to breathe, and by extension, his or her
    ability to do the job. Discipline will not be imposed for
    unknowing violation of the scent free restriction; only
    when the employee knowingly refuses to accommodate
    a [coworker’s] disability, thereby placing the [cowork-
    er] at risk of potential adverse health consequences
    will progressive discipline be imposed at the discretion
    of management. The collective bargaining agreement,
    [a]rticle 34, provides support for this policy: ‘The
    employer shall maintain safe and healthy working con-
    ditions. The employer agrees to take reasonable mea-
    sures to provide a work environment which minimizes
    the risk of injury to employees.’ Work rule # 13 also
    provides support for the imposition of discipline when
    an employee knowingly refuses to modify behavior that
    may cause harm to another employee and prevent that
    employee from doing the job—‘An employee shall not
    interfere with the productivity of other employees or
    cause any interruption of work.’ ’’ (2) ‘‘[The defendant]
    will educate the [workforce], train supervisors, and post
    notices in buildings and offices that it controls in order
    to implement the policy and inform employees and the
    public of the scent free policy.’’ (3) ‘‘[The defendant]
    will offer scent free classes for mandatory training or
    provide mandatory training on line.’’ (4) ‘‘To the extent
    that [the defendant] has not done so, it will provide a
    working air filtration system with a HEPA filter to filter
    the entire unit where [the plaintiff] is assigned.’’ (5)
    ‘‘[The plaintiff] will be allowed to leave the immediate
    area when a violation of the scent free restriction occurs
    that may cause her to sustain adverse health conse-
    quences and a safe room will be made available to [the
    plaintiff] to use for the duration of her shift until the
    scent restricting her ability to work is removed from
    the air she is breathing. Additionally, the person vio-
    lating the scent free restriction will be asked to leave
    the area and remove the scent before accessing the
    area again.’’ (6) ‘‘[The plaintiff] will not be penalized on
    the overtime list if she is unable to accept an overtime
    opportunity because the location is likely to cause her
    to be exposed to scents harmful to her health. Her place
    on the overtime list will be preserved and she will be
    offered the next overtime opportunity that she is able
    to take.’’ (7) ‘‘All of [the plaintiff’s] 67 hours of sick
    time will be restored or she will be paid the monetary
    equivalent which we calculate as $2106.’’ (8) ‘‘[The
    defendant] will reimburse and pay [the plaintiff’s attor-
    ney’s] fees which are $16,773 to date.’’ The letter further
    stated: ‘‘We would be happy to meet with representa-
    tives of the [defendant] who have authority to discuss
    and recommend these requests.’’
    When offering exhibit 12 into evidence, the plaintiff’s
    counsel stated that it was offered ‘‘not for the truth of
    the matter asserted, but for the fact that this propo-
    sal was presented.’’ The defendant’s counsel objected
    on the basis that it contained settlement discussions
    and was part of the commission’s mediation process
    and was therefore inadmissible. The court overruled
    the objection, stating that ‘‘[t]hey are highly relevant to
    the state’s ability to react intelligently and legally to
    requests for accommodation. They are inseparable in
    my mind between what might be a technical request
    for settlement, which I doubt, and a perfectly admissible
    request for reasonable accommodation for an acknowl-
    edged disability by the defendant. Therefore, the objec-
    tion is overruled.’’
    During the defendant’s cross-examination of the
    plaintiff on March 15, 2018, the defendant introduced
    into evidence a May 3, 2013 e-mail from Assistant Attor-
    ney General Lacedonia to the plaintiff’s counsel (exhibit
    OOOOO), which was Lacedonia’s reply to the e-mail
    from the plaintiff’s counsel that had been introduced
    into evidence as exhibit 13. The plaintiff’s counsel
    stated that he had no objection, and the court admitted
    exhibit OOOOO in full. Exhibit OOOOO states: ‘‘Thanks
    for these materials. They seem to support the position
    that requests for voluntary compliance in limiting scents
    in the workplace (which my client has done extensively)
    is a reasonable accommodation, while mandatory scent
    free policies are not. I left you a voicemail message
    around noon today. I look forward to hearing from you
    what [the plaintiff] is seeking in resolution of this mat-
    ter and am hopeful that you have a creative solution
    that will be workable for all parties.’’
    In its oral decision issued on April 20, 2018, referenc-
    ing the good faith interactive process, the court found
    that the process ‘‘did not continue after the plaintiff’s
    attorney’s letter to . . . Assistant Attorney General Jill
    Lacedonia. The court infers that from no evidence of
    any response whatsoever.’’
    On appeal, the defendant argues that the court
    improperly admitted into evidence exhibits 12, 13, and
    14. The plaintiff responds that the ‘‘trial court properly
    admitted [exhibits] 12, 13, and 14 because the e-mails
    were not offers of compromise and the proposal was
    part of [the] plaintiff’s effort to find a solution to the
    question of reasonable accommodation.’’ She argues
    that exhibits 13 and 14 ‘‘were directed to counsel for
    the defendant and contained information and case law
    that supported [the] plaintiff’s claim for enforcement of
    the scent-free restriction; there was no ‘demand’ despite
    the appearance of the word ‘demand’ in [the] subject
    line of the e-mail.’’ She further argues that exhibit 12
    communicated the ‘‘plaintiff’s proposal for reasonable
    accommodation and sought a meeting to further discuss
    the matter. While the letter does indicate a desire to
    ‘clarify demands,’ the letter is primarily designed as a
    proposal for a good faith discussion with a request to
    meet with appropriate officials of the [defendant].’’ We
    agree with the defendant.
    We begin our analysis by setting forth relevant legal
    principles. ‘‘It has long been the law that offers relating
    to compromise are not admissible on the issue of liabil-
    ity.’’ Simone Corp. v. Connecticut Light & Power Co.,
    
    187 Conn. 487
    , 490, 
    446 A.2d 1071
    (1982). Section 4-8
    (a) of the Connecticut Code of Evidence provides the
    general rule that ‘‘[e]vidence of an offer to compromise
    or settle a disputed claim is inadmissible on the issues
    of liability and the amount of the claim.’’ The rule does
    not require the exclusion of ‘‘[e]vidence that is offered
    for another purpose, such as proving bias or prejudice
    of a witness, refuting a contention of undue delay or
    proving an effort to obstruct a criminal investigation
    or prosecution, or . . . statements of fact or admis-
    sions of liability made by a party.’’ Conn. Code Evid.
    § 4-8 (b) (1) and (2). ‘‘This rule reflects the strong public
    policy of promoting settlement of disputes.’’ Miko v.
    Commission on Human Rights & Opportunities, 
    220 Conn. 192
    , 209, 
    596 A.2d 396
    (1991). Pursuant to General
    Statutes § 46a-84 (e), hearing officers appointed by the
    commission are prohibited from receiving in evidence
    ‘‘[a]ny endeavors or negotiations for conciliation, settle-
    ment or alternate dispute resolution.’’9See also Miko v.
    Commission on Human Rights & 
    Opportunities, supra
    , 210. Moreover, § 46a-83 (j) protects from disclo-
    sure ‘‘what has occurred in the course of the commis-
    sion’s processing of a complaint, provided the commis-
    sion may publish the facts in the case and any complaint
    that has been dismissed and the terms of conciliation
    when a complaint has been adjusted.’’10
    We next set forth our standard of review. A trial
    court’s decision as to whether to admit settlement com-
    munications, and for what purpose, is reviewed for an
    abuse of discretion. See Monti v. Wenkert, 
    287 Conn. 101
    , 126, 
    947 A.2d 261
    (2008); Bugryn v. Bristol, 
    63 Conn. App. 98
    , 111, 
    774 A.2d 1042
    , cert. denied, 
    256 Conn. 927
    , 
    776 A.2d 1143
    (2001), cert. denied, 
    534 U.S. 1019
    , 
    122 S. Ct. 544
    , 
    151 L. Ed. 2d 422
    (2001). ‘‘[A]
    trial court may exercise its discretion with regard to
    evidentiary rulings, and the trial court’s rulings will not
    be disturbed on appellate review absent abuse of that
    discretion. . . . In our review of these discretionary
    determinations, we make every reasonable presump-
    tion in favor of upholding the trial court’s ruling. . . .
    Evidentiary rulings will be overturned on appeal only
    where there was an abuse of discretion and a showing
    by the [appellant] of substantial prejudice or injustice.’’
    (Internal quotation marks omitted.) Bugryn v. 
    Bristol, supra
    , 111.
    Turning to the documents at issue, exhibit 12 is
    addressed to Salerno, an investigator with the commis-
    sion, and copied to the plaintiff and Assistant Attor-
    ney General Lacedonia. It makes clear that the purpose
    of the communication is to provide a response to Saler-
    no’s ‘‘request to clarify the demands of our client with
    respect to her claim of disability discrimination.’’11 With
    respect to exhibits 13 and 14, both communications
    are addressed to Assistant Attorney General Lacedonia.
    The subject line of exhibit 13 is ‘‘RE: Kovachich—
    request for demand,’’ and it discusses issues on which
    the parties purportedly reached agreement ‘‘at the last
    mediation session.’’ It concludes by stating: ‘‘In any
    event if you are willing to work with me to find a solu-
    tion then we can see if litigation can be avoided.’’ Last,
    exhibit 14 discusses the plaintiff’s intention of moving
    forward with the case, restates certain of her previous
    requests of the defendant, and asks Assistant Attorney
    General Lacedonia to respond with ‘‘solutions your side
    proposes.’’ Given the content of the communications,
    we conclude that the court abused its discretion in
    admitting the challenged evidence on the basis that it
    did not constitute settlement communications.
    Turning to the requirement that the appellant show
    substantial prejudice, we note that the court, after
    admitting into evidence the settlement communica-
    tions, relied on those communications to conclude that
    the interactive process ‘‘did not continue after the plain-
    tiff’s attorney’s letter to . . . Assistant Attorney Gen-
    eral Jill Lacedonia. The court infers that from no evi-
    dence of any response whatsoever.’’12 Thus, it is
    apparent that the court impermissibly considered the
    plaintiff’s settlement communications on the issue of
    liability. Accordingly, we agree with the defendant that
    the trial court erred in admitting exhibits 12, 13, and
    14 into evidence and grounding its finding that the
    defendant had failed to engage in the interactive process
    on the inadmissible settlement communications. Com-
    pounding its error, the court incorrectly ‘‘[inferred] . . .
    from no evidence of any response whatsoever’’ that the
    interactive process ‘‘did not continue after the plaintiff’s
    attorney’s letter to . . . Assistant Attorney General Jill
    Lacedonia.’’ Contrary to the court’s finding, a reply
    e-mail, exhibit OOOOO, was admitted into evidence
    as a full exhibit, and that e-mail further references a
    voicemail that Lacedonia left for the plaintiff’s counsel.
    The plaintiff argues that the exception to the general
    rule of inadmissibility for evidence that is offered for
    another purpose is applicable. The plaintiff maintains
    that because ‘‘the documents were offered as evidence
    of efforts made by [the] plaintiff to engage [the] defen-
    dant in an interactive good faith discussion, the evi-
    dence was clearly offered for another purpose, a rec-
    ognized exception to the rule.’’ In support of this
    argument, the plaintiff cites federal cases that ‘‘have
    admitted evidence of compromise offers and nego-
    tiations for the purpose of showing that the parties
    engaged in the interactive process . . . .’’ In Grie-
    singer v. University of Cincinnati, United States Dis-
    trict Court, Docket No. 1:13-cv-808 (KLL) (S.D. Ohio
    March 25, 2016), the United States District Court for
    the Southern District of Ohio concluded that offers of
    accommodations made by counsel for the defendant to
    the plaintiff’s counsel with respect to a skills assess-
    ment needed prior to completing a practicum, including,
    inter alia, advance notice of the skills to be tested,
    individual instructions, and an opportunity to watch
    other students’ skills tests, could be admissible for the
    purpose of showing that the university engaged in the
    interactive process to reach a reasonable accommoda-
    tion. In a previous decision from the United States Dis-
    trict Court for the Southern District of Ohio, Linebarger
    v. Honda of America Mfg., Inc., 
    870 F. Supp. 2d 513
    , 521
    n.2 (S.D. Ohio 2012), the court found that interactions
    between counsel regarding accommodations offered to
    an employee in the form of two additional unscheduled
    break periods were not barred by rule 408 of the Federal
    Rules of Evidence where the communications were
    made in an effort to reach a consensus on a reasonable
    accommodation. In Cook v. Morgan Stanley Smith Bar-
    ney, United States District Court, Docket No. H-13-1321
    (GHM) (S.D. Tex. August 15, 2014), the United States
    District Court for the Southern District of Texas denied
    a motion to strike the affidavit of the defendant’s coun-
    sel, which stated that ‘‘during the interactive process
    to see if there was any accommodation that could be
    made to facilitate [the plaintiff’s] return to work . . .
    [the plaintiff’s counsel] advised that his client would
    not be returning to work at [the defendant] and would
    move forward with filing a claim against [the defen-
    dant].’’ (Internal quotation marks omitted.) The court
    stated that the evidence contained in the affidavit was
    used to support the defendant’s argument that the plain-
    tiff had refused to return to work without a change in
    supervisor.
    Id. The court
    concluded that the evidence
    was being used ‘‘not to show liability but to show that
    [the defendant] was engaging in the interactive pro-
    cess.’’
    Id. In Williams
    v. British Airways, PLC, United
    States District Court, Docket Nos. 04-CV-0471, 06-CV-
    5085 (CPS) (SMG) (E.D.N.Y. September 27, 2007), the
    United States District Court for the Eastern District of
    New York stated that ‘‘settlement discussions may be
    considered in the ADA context for the purpose of
    assessing a party’s participation in the interactive pro-
    cess.’’ The court considered statements contained in an
    affidavit detailing settlement discussions that occurred
    during a conference with a magistrate.
    Id. We note
    that, unlike the cases cited by the plaintiff,
    the present case concerns settlement communications
    that occurred within the context of the commission’s
    mandatory mediation program. The general rule that
    evidence of attempted settlements is not admissible
    against either party to the settlement negotiations is
    consistent with the statutory protections afforded con-
    ciliation efforts before the commission. As set forth
    previously, § 46a-84 (e) prohibits hearing officers from
    receiving in evidence ‘‘[a]ny endeavors or negotiations
    for conciliation, settlement or alternate dispute resolu-
    tion . . . .’’ Relatedly, § 46a-83 (j) protects from disclo-
    sure ‘‘what has occurred in the course of the commis-
    sion’s processing of a complaint, provided the
    commission may publish the facts in the case and any
    complaint that has been dismissed and the terms of
    conciliation when a complaint has been adjusted.’’
    As the commission’s amicus brief explains, the act
    ‘‘relies heavily on conciliation as a means of eliminating
    discriminatory employment practices. To further this
    process, the act bars absolutely the disclosure of concil-
    iation endeavors and postpones disclosure of com-
    plaints until they have been dismissed or adjusted. The
    obvious purpose of providing confidentiality is to
    encourage compromise, while premature disclosure
    might force the parties into public postures, which
    would inhibit or prevent settlements.’’ Green v. Free-
    dom of Information Commission, 
    178 Conn. 700
    , 703,
    
    425 A.2d 122
    (1979). As the commission argues, ‘‘[w]eak-
    ening the safeguards which generally preclude parties
    from offering settlement or compromise evidence into
    the record would have a chilling effect on the commis-
    sion’s mediation efforts, eviscerating the conciliatory
    purpose and expeditious nature of the commission’s
    administrative process. This remains the case even
    when such evidence relates to details of the interactive
    process.’’ We agree with the commission’s sentiment
    and conclude that the trial court imposed liability on
    the defendant on the basis of inadmissible evidence.
    Accordingly, we reverse the judgment of the court and
    remand the matter for a new trial.
    II
    In light of the fact that we are remanding the matter
    for a new trial, we address, as a matter likely to arise
    on remand, the defendant’s claim that the court improp-
    erly precluded admission of the plaintiff’s deposition
    responses ‘‘because [the] plaintiff had amended those
    responses on an errata sheet.’’ The plaintiff responds
    that, ‘‘because [the] defendant chose to accept the
    changes made to the errata sheet, [the] plaintiff’s prior
    testimony was not admissible.’’13 We agree with the
    defendant.
    The following additional procedural history is rele-
    vant to our resolution of this claim. The plaintiff was
    deposed on April 7, 2017, and the defendant filed a
    motion for summary judgment on April 21, 2017. The
    plaintiff subsequently executed an errata sheet, in
    which she amended eleven deposition responses, three
    of which amendments are relevant for purposes of this
    appeal. The plaintiff changed her response that she had
    her hair permed every six to eight weeks between 2010
    and 2014, to ‘‘I did not have my hair permed between
    2010 and 2014.’’14 Next, the plaintiff testified during her
    deposition that she had not discussed with SMHA offi-
    cials transferring to a position that did not involve direct
    patient care. In her errata sheet, the plaintiff amended
    her response to state: ‘‘I asked Tommy Wilson on two
    occasions to find employment elsewhere.’’ Finally, the
    plaintiff testified during her deposition that she ‘‘did not
    take any’’ steps to notify management that the accom-
    modations were not working. In her errata sheet, she
    changed that response to state: ‘‘I frequently e-mailed
    management notifying them of the continued scent
    exposures.’’ In her errata sheet, the plaintiff stated as
    the reason for each of the eleven changes that ‘‘I was
    having difficulty concentrating on the task at hand due
    to the stress of losing my father, concern for my moth-
    er’s health, who I had left in Florida to attend the deposi-
    tion, and my own physical illness.’’
    On May 30, 2017, the defendant filed a motion to
    suppress the errata sheet, in which it argued, inter alia,
    that the plaintiff’s changes to her deposition responses
    were material and substantive and that they ‘‘effectively
    destroy the usefulness of the prior deposition.’’ The
    plaintiff filed an objection. In its ruling denying the
    motion to suppress, the court, Bates, J., agreed with
    the defendant that many of the corrections made on the
    errata sheet were ‘‘actually changes in the deposition
    testimony . . . .’’ The court declined to strike the cor-
    rections, stating that ‘‘the majority of courts which have
    faced this request have taken another approach . . .
    they allow the disputed errata sheet items to remain in
    the court records under seal. . . . However, as a condi-
    tion of allowing the altered deposition testimony to
    remain in the court records, the party who took the
    deposition has the right to reopen the deposition at the
    expense of the deponent and engage in examination of
    the deponent regarding these ‘new facts.’ ’’ (Citation
    omitted.) The court then directed the defendant ‘‘to
    identify any ‘corrections’ noted by the plaintiff that it
    is willing to accept.’’ The court stated that the defendant
    then could notice a new deposition of the plaintiff to
    explore the changes. The court ordered the plaintiff to
    bear the cost of the new deposition. On July 6, 2017,
    the defendant, in response to the court’s order directing
    it to identify any corrections it was willing to accept,
    filed a notice stating, ‘‘[n]otwithstanding that the plain-
    tiff’s changes are internally contradictory, the defendant
    will accept these changes and proceed on the pending
    motion for summary judgment.’’15(Footnote omitted.)
    During the cross-examination of the plaintiff at trial,
    on March 8, 2018, the defendant’s counsel asked the
    plaintiff whether she had her hair permed regularly
    from 2010 through 2014. The plaintiff testified that she
    ‘‘did not go to a hairdresser at all between that time-
    frame.’’ The defendant’s counsel indicated that she
    would like to enter as full exhibits portions of the plain-
    tiff’s deposition testimony as admissions of the plain-
    tiff. The plaintiff’s counsel responded: ‘‘[T]he issue that
    we would have with that is that the pages of the deposi-
    tion that tend to be used, at least some of them, were
    corrected by an errata sheet and so what’s being offered
    is not the actual answer.’’ The issue was not resolved
    and was raised again on March 14, 2018. The plaintiff’s
    counsel informed the court that the defendant, in
    response to the court’s order on the motion to suppress
    the errata sheet, had filed a pleading in which it
    accepted the changes made in the errata sheet. The
    issue again was not resolved because the defendant’s
    counsel stated that she intended to inquire of the wit-
    ness on a different topic.
    The next day, on March 15, 2018, in connection with
    the cross-examination of the plaintiff, the defendant’s
    counsel sought to introduce into evidence an excerpt
    of the plaintiff’s deposition testimony as an admission
    of the plaintiff. The excerpt contained the plaintiff’s
    original deposition testimony that she had her hair
    permed every six to eight weeks. The plaintiff’s coun-
    sel objected on the basis that ‘‘an errata sheet was filed
    with the change accepted . . . .’’ The defendant’s coun-
    sel responded that the original testimony was ‘‘still an
    admission of a party opponent,’’ and that while the
    plaintiff’s counsel may wish to enter into evidence the
    errata sheet, it ‘‘does not change the fact that she made
    the statement’’ and ‘‘[i]t doesn’t erase her testimony.’’
    The court stated that it disagreed with the interpreta-
    tion of the defendant’s counsel. In response, counsel
    referred the court to § 8-3 of the Connecticut Code
    of Evidence,16 containing the hearsay exception for a
    statement by a party opponent, and Practice Book § 13-
    31 (a) (3), permitting the use of the deposition of a
    party by an adverse party for any purpose. Following
    argument, the court sustained the plaintiff’s objection
    to the ‘‘offer of the proffered exhibit with respect to
    hair coloring unless the errata sheet is incorporated.’’
    The defendant’s counsel then sought to impeach the
    plaintiff with the original deposition testimony, on the
    basis that the original testimony constituted a prior
    inconsistent statement.17 The plaintiff objected, and the
    court sustained the objection, stating, ‘‘[y]ou’re simply
    reading from the deposition and the objection is sus-
    tained because it’s not inconsistent with any testimony
    that I recall.’’ The defendant’s counsel again asked the
    plaintiff whether she recalled testifying at her deposi-
    tion regarding having her hair permed, and whether she
    ever had her hair permed between 2010 and 2014. The
    plaintiff’s counsel objected, and the court stated that
    it was the same objection he had sustained previously.
    The defendant’s counsel responded that she had asked
    the plaintiff only regarding coloring her hair, not per-
    ming it. The following exchange then occurred:
    ‘‘The Court: You read all the way through hair perm
    and [the plaintiff’s counsel] objected and I sustained
    the objection. There will be no more—there will be no
    more questions on page sixty-one and sixty-two of the
    deposition, period.
    ‘‘[The Defendant’s Counsel]: Your Honor, I believe I
    only read through line four on page sixty-two.
    ‘‘The Court: Most recently, yes.
    ‘‘[The Defendant’s Counsel]: Okay.
    ‘‘The Court: Before the break, however, you read
    almost the entire pages when [the plaintiff’s counsel]
    objected and I sustained it. Once more, there will be
    no further questions on pages sixty-one and sixty-two
    of the deposition for any reason whatsoever.
    ‘‘[The Defendant’s Counsel]: May I make an offer of
    proof, Your Honor?
    ‘‘The Court: No, you may not. It is not a relevance
    objection, therefore, you do not have the right to make
    an offer of proof. Please put a question.’’
    On appeal, the defendant argues that the trial court
    improperly precluded admission of the plaintiff’s origi-
    nal deposition responses. We agree with the defendant.
    We first set forth relevant principles of law. Practice
    Book § 13-31 (a) governs the use of depositions in court
    proceedings and provides in relevant part that ‘‘any part
    or all of a deposition, so far as admissible under the
    rules of evidence applied as though the witness were
    there present and testifying, may be used against any
    party who was present or represented at the taking of
    the deposition or who had reasonable notice thereof,
    in accordance with any of the following provisions: (1)
    Any deposition may be used by any party for the pur-
    pose of contradicting or impeaching the testimony of
    the deponent as a witness. . . . (3) The deposition of
    a party . . . may be used by an adverse party for any
    purpose.’’ Practice Book § 13-31 (a) (3), permitting the
    use of the deposition of a party by an adverse party for
    any purpose, is consistent with the rules of evidence
    permitting a statement by a party opponent to be admit-
    ted into evidence as an exception to the hearsay rule.
    See Gateway Co. v. DiNoia, 
    232 Conn. 223
    , 238, 
    654 A.2d 342
    (1995).
    ‘‘[T]he trial court has discretion to admit or exclude
    deposition testimony offered as evidence under § 248
    [now Practice Book § 13-31 (a) (3)]. . . . While it is
    normally true that this court will refrain from interfering
    with a trial court’s exercise of discretion . . . this pre-
    supposes that the trial court did in fact exercise its
    discretion. [D]iscretion imports something more than
    leeway in decision-making. . . . It means a legal dis-
    cretion, to be exercised in conformity with the spirit
    of the law and in a manner to subserve and not to
    impede or defeat the ends of substantial justice.’’ (Inter-
    nal quotation marks omitted.) Friends of Animals, Inc.
    v. United Illuminating Co., 
    124 Conn. App. 823
    , 834–35,
    
    6 A.3d 1180
    (2010); see
    id., 835 (trial
    court failed to
    exercise discretion properly where it based its decision
    to exclude evidence on rule of practice permitting intro-
    duction of deposition transcript into evidence where
    deponent is unavailable, rather than provision stating
    that deposition of party may be used by adverse party
    for any purpose).
    Applying these principles to the present case, § 8-3
    of the Connecticut Code of Evidence and Practice Book
    § 13-31 (a) (3) permitted the defendant to use at trial
    the deposition testimony of the plaintiff, an adverse
    party, for any purpose, including as a statement by a
    party opponent or to impeach the testimony of the
    plaintiff. The issue in the present case, however, arises
    out of the defendant’s effort to use deposition testimony
    that later was amended by an errata sheet. Practice
    Book § 13-30 (d), which governs the use of errata sheets,
    provides in relevant part: ‘‘If requested by the deponent
    or any party, when the testimony is fully transcribed
    the deposition shall be submitted to the deponent for
    examination and shall be read to or by the deponent.
    Any changes in form or substance which the deponent
    desires to make shall be entered upon the deposition
    by the officer with a statement of the reasons given by
    the deponent for making them. The deposition shall
    then be signed by the deponent certifying that the depo-
    sition is a true record of the deponent’s testimony
    . . . .’’
    Our appellate courts have not addressed the question
    of what use a party may make at trial of deposition
    testimony that was amended through an errata sheet.
    Rule 30 (e) (1) of the Federal Rules of Civil Procedure,
    which contains similar language to Practice Book § 13-
    30 (d), provides in relevant part: ‘‘On request by the
    deponent or a party before the deposition is completed,
    the deponent must be allowed 30 days after being noti-
    fied by the officer that the transcript or recording is
    available in which: (A) to review the transcript or
    recording; and (B) if there are changes in form or sub-
    stance, to sign a statement listing the changes and the
    reasons for making them.’’ Given the similarity in lan-
    guage and the absence of appellate authority interpre-
    ting Practice Book § 13-30 (d), we look to cases constru-
    ing the federal rule for guidance. See Artie’s Auto Body,
    Inc. v. Hartford Fire Ins. Co., 
    287 Conn. 208
    , 214–15,
    
    947 A.2d 320
    (2008).
    The United States Court of Appeals for the Second
    Circuit has stated that ‘‘when a party amends his testi-
    mony under [r]ule 30 (e), [t]he original answer to the
    deposition questions will remain part of the record and
    can be read at the trial. . . . Nothing in the language
    of [r]ule 30 (e) requires or implies that the original
    answers are to be stricken when changes are made.
    . . . This court has recognized that because [a]ny out-
    of-court statement by a party is an admission, a depo-
    nent’s original answer should [be] admitted [into evi-
    dence] even when he amends his deposition testi-
    mony—with the deponent [o]f course . . . free to
    introduce the amended answer and explain the reasons
    for the change.’’ (Citations omitted; internal quotation
    marks omitted.) Podell v. Citicorp Diners Club, Inc.,
    
    112 F.3d 98
    , 103 (2d Cir. 1997); see also Maynard v.
    Stonington Community Center, United States District
    Court, Docket No. 3:15cv483 (RNC) (D. Conn. May 17,
    2016) (explaining that changes to the form and sub-
    stance of plaintiff’s deposition testimony ‘‘will not have
    the effect of replacing or deleting any of her deposition
    testimony . . . [r]ather, her changed answers become
    part of the record generated during discovery’’ (cita-
    tions omitted; internal quotation marks omitted)).
    The Second Circuit in Podell v. Citicorp Diners Club,
    
    Inc., supra
    , 
    112 F.3d 103
    , cited Lugtig v. Thomas, 
    89 F.R.D. 639
    (N.D. Ill. 1981), in which the United States
    District Court for the Northern District of Illinois
    explained the policy reason underlying the conclusion
    that the original deposition answers must remain. It
    stated: ‘‘The witness who changes his testimony on a
    material matter between the giving of his deposition
    and his appearance at trial may be impeached by his
    former answers, and the cross-examiner and the jury
    are likely to be keenly interested in the reasons he
    changed his testimony. There is no apparent reason
    why the witness who changes his mind between the
    giving of the deposition and its transcription should
    stand in any better case. . . . The rule is less likely to
    be abused if the deponent knows that all the circum-
    stances the original answers as well as the changes and
    the reasons will be subject to examination by the trier of
    fact.’’ (Citation omitted.) Lugtig v. 
    Thomas, supra
    , 642.
    Several trial courts also have endorsed this federal
    interpretation. See, e.g., Elisea v. CFC Stillwater, LLC,
    Superior Court, judicial district of New Haven, Docket
    No. CV-XX-XXXXXXX-S (September 15, 2015) (
    61 Conn. L
    . Rptr. 162, 168) (finding court’s reasoning in Lugtig
    instructive on use of original deposition answers and
    use of changes made and, in denying motion to suppress
    errata sheet, stating that ‘‘[t]he original answers to the
    deposition questions, the changes and reasons for same,
    shall remain a part of the record’’); Bonner v. New
    Haven, Superior Court, judicial district of New Haven,
    Docket No. CV-XX-XXXXXXX-S (February 21, 2014) (rely-
    ing on Podell to conclude that ‘‘when a party amends
    deposition testimony, the court may consider both the
    revised responses in the errata sheet and the original
    responses for evidentiary purposes’’ and considering
    both original deposition responses and amended errata
    responses in determining that there existed genuine
    issue of material fact precluding summary judgment).
    We also interpret Practice Book § 13-30 (d) in accor-
    dance with the Second Circuit’s elucidation of rule 30
    (e) of the Federal Rules of Civil Procedure and hold
    that original deposition responses are admissible not-
    withstanding amended answers on an errata sheet. In
    the present case, the court sustained the plaintiff’s
    objection to the offer of the plaintiff’s original deposi-
    tion testimony ‘‘unless the errata sheet is incorporated.’’
    Thus, the court precluded the defendant from admitting
    into evidence the original response. The court should
    have entered the original response into evidence and,
    if the plaintiff sought to do so, permitted the plaintiff
    to ‘‘introduce the amended answer and explain the rea-
    sons for the change.’’ (Internal quotation marks omit-
    ted.) Podell v. Citicorp Diners Club, 
    Inc., supra
    , 
    112 F.3d 103
    . Accordingly, the court improperly sustained the
    plaintiff’s objection to the admission of the original dep-
    osition responses.
    III
    We next address, as an issue likely to arise on remand,
    the defendant’s claim that ‘‘the trial court erred in ruling
    that any e-mail from any defendant employee—even
    the plaintiff’s union advocates—constituted an admis-
    sion of a party opponent.’’ We agree with the defendant.
    The following procedural history is relevant to this
    claim. On March 7, 2018, during the plaintiff’s testimony,
    the plaintiff’s counsel sought to admit into evidence
    e-mails among the plaintiff, two union delegates, Donna
    Stoll and Paul Cummings, and others. The defendant’s
    counsel objected on the basis that the e-mails contained
    hearsay, and the plaintiff’s counsel responded: ‘‘That’s
    fine, Your Honor, because . . . Cummings and . . .
    Stoll . . . are going to testify. . . . So we’ll—to the
    extent that there’s something that needs to come in from
    them, will be heard from them.’’ Despite that response,
    the trial court stated that the e-mails may be admissible
    ‘‘given the broadening of our Code of Evidence,’’ and
    directed the plaintiff’s counsel to ask the plaintiff to
    identify Stoll and Cummings. The following colloquy
    then occurred:
    ‘‘[The Plaintiff’s Counsel]: So who is Donna Stoll?
    ‘‘[The Plaintiff]: She’s a union delegate.
    ‘‘The Court: What?
    ‘‘[The Plaintiff]: Union delegate.
    ‘‘The Court: Yeah. But employed by the union or
    employed by—
    ‘‘[The Plaintiff]: By the state.
    ‘‘The Court: Anywhere particular to your department?
    ‘‘[The Plaintiff]: She worked for the Department of
    Mental Health and Addiction Services at SMHA so, yes.
    ‘‘The Court: Thank you. Okay.
    ‘‘[The Plaintiff’s Counsel]: And she also—did she
    work on your unit?
    ‘‘[The Plaintiff]: The scheduler’s office was in the
    back on the unit in 361 in the Resource Room.
    ‘‘[The Plaintiff’s Counsel]: All right. And who is
    Paul Cummings?
    ‘‘[The Plaintiff]: Paul Cummings is also a union
    delegate.
    ‘‘The Court: And an employee?
    ‘‘[The Plaintiff]: Same place.
    ‘‘The Court: Okay. All right. The objection on hearsay
    is overruled. So one—4 is [a] full exhibit.’’ Exhibit 4
    contained Stoll’s and Cummings’ responses to the plain-
    tiff’s communication regarding a ‘‘continued scent
    noted on’’ a coworker. Cummings, who testified that he
    was employed by the defendant as a psychiatric social
    worker and later a community clinician, responded to
    the plaintiff’s e-mail thread by stating: ‘‘I believe BCP is
    designated as scent free and staff should adhere to this
    every day.’’
    During the direct examination of Stoll on March 20,
    2018, the plaintiff’s counsel asked whether she was
    aware of instances of employees wearing scents inten-
    tionally. Stoll responded by recounting an occasion in
    which a staff member approached Stoll needing her
    assistance in a union matter. When Stoll met with the
    staff member, she was wearing a fragrance, which Stoll
    described as ‘‘quite strong,’’ and the staff member told
    Stoll: ‘‘I just put some perfume on. I hope it doesn’t
    bother you.’’ The defendant’s counsel objected to the
    testimony on the basis that it constituted hearsay, and
    the court responded: ‘‘No. It’s a party opponent under
    the rules.’’ The defendant’s counsel stated: ‘‘We don’t
    know who it was.’’ Subsequently, Stoll testified that the
    staff member was Maureen Crooker, a mental health
    assistant at SMHA.
    The defendant’s counsel then stated: ‘‘I’d like to
    renew my motion to strike since we now know that it
    was a union member who wore the fragrance rather than
    a member of management. So I don’t believe it would
    be [an] admission of a party or conduct of a party.’’
    The court overruled the objection, stating: ‘‘It is a state
    employee; union member, management member. That
    distinction that you [are] raising has been abolished with
    the 2018 version of the Code of Evidence. We went
    through this weeks ago and my rulings have been based
    on the now-effective Code of Evidence which expands
    greatly, almost similar to the federal rules if not exactly,
    the rules for statements of a party opponent. The old
    Connecticut rule is no longer with us. So your renewed
    objection, as was the prior objection, is overruled because
    it just isn’t—it is hearsay but it is the exception to the
    hearsay rule of a statement of a party opponent. The
    party being the state of Connecticut and an employee
    of the state of Connecticut.’’ The court then told the
    defendant’s counsel: ‘‘You know, no more renewals. My
    ruling is final on this question.’’
    On appeal, the defendant argues that the court improp-
    erly concluded that certain statements of the defendant’s
    employees were admissible against the defendant as
    admissions of a party opponent. We agree with the defen-
    dant.
    We first set forth relevant legal principles and our
    standard of review. Section 8-3 (1) (D) of the Connec-
    ticut Code of Evidence provides that ‘‘a statement by
    the party’s agent, servant or employee, concerning a
    matter within the scope of the agency or employment,
    and made during the existence of the relationship’’ is
    not excluded by the hearsay rule. Section 8-3 (1) further
    provides that ‘‘[t]he hearsay statement itself may not
    be considered to establish . . . the existence or scope
    of the relationship under (D) . . . .’’ The commentary
    to § 8-3 (1) (D) of the Connecticut Code of Evidence
    states that subdivision (D), which was amended effec-
    tive February 1, 2018, ‘‘encompasses the exception set
    forth in rule 801 (d) (2) (D) of the Federal Rules of
    Evidence and adopted in a majority of state jurisdic-
    tions.’’18Under rule 801 (d) (2) (D) of the Federal Rules
    of Evidence, in order for evidence to be admissible,
    ‘‘the proponent of the evidence must establish (1) the
    existence of the agency relationship, (2) that the state-
    ment was made during the course of the relationship,
    and (3) that it relates to a matter within the scope of the
    agency.’’ (Internal quotation marks omitted.) Crigger v.
    Fahnestock & Co., 
    443 F.3d 230
    , 238 (2d Cir. 2006). ‘‘To
    the extent [that] a trial court’s admission of evidence is
    based on an interpretation of the [Connecticut] Code of
    Evidence, our standard of review is plenary. For exam-
    ple, whether a challenged statement properly may be
    classified as hearsay and whether a hearsay exception
    properly is identified are legal questions demanding ple-
    nary review.’’ (Internal quotation marks omitted.) Cus-
    tomers Bank v. Tomonto Industries, LLC, 156 Conn.
    App. 441, 445, 
    112 A.3d 853
    (2015).
    In the present case, the trial court issued a blanket
    ruling that statements made by ‘‘a state employee, union
    member, [or] management member’’ were admissible
    pursuant to § 8-3 (1) (D) of the Connecticut Code of
    Evidence, without conducting the analysis required to
    determine whether the statement related to a matter
    within the scope of the declarant’s employment. Indeed,
    the plaintiff failed to establish that Crooker’s statement
    to Stoll ‘‘concern[ed] a matter within the scope of the
    agency or employment.’’ See Conn. Code Evid. § 8-3 (1)
    (D); see also Henderson v. General Electric Co., 469 F.
    Supp. 2d 2, 11 (D. Conn. 2006) (agents’ statements did
    not satisfy rule 801 (d) (2) (D) of the Federal Rules of
    Evidence, in that statements did not relate to matter
    within scope of agency relationship and therefore were
    inadmissible). Similarly, the court admitted the e-mails
    authored by Stoll and Cummings, both union delegates,
    without conducting any analysis as to whether the state-
    ments contained within those e-mails concerned a mat-
    ter within the scope of their employment. Accordingly,
    the court erred in concluding that all statements made
    by employees of the defendant, including union dele-
    gates, were admissible pursuant to § 8-3 (1) (D) of the
    Connecticut Code of Evidence.
    The judgment, including the award of attorney’s fees,
    is reversed and the case is remanded for a new trial.
    In this opinion the other judges concurred.
    1
    In addition, the defendant amended its appeal to challenge the court’s
    award of attorney’s fees to the plaintiff and includes such claim in its
    principal appellate brief. Because we agree with the defendant’s first, third,
    and fourth claims, we reverse the judgment of the trial court, including the
    award of attorney’s fees.
    2
    The Commission on Human Rights and Opportunities (commission) was
    granted permission to file an amicus brief. In its brief, the commission first
    argued that the court properly found that the defendant failed to accommo-
    date the plaintiff’s disability and failed to engage in the interactive process
    in violation of the act. Next, the commission emphasized that the court, in
    concluding that the defendant failed to engage in the interactive process in
    good faith, had ‘‘looked, at least in part, to negotiations which occurred
    once the plaintiff filed her complaint with the commission.’’ The commission
    then argued that ‘‘the confidentiality of the commission’s mediation process
    must be protected for the commission to fulfill its statutory mandate.’’
    3
    In light of our reversal of the judgment of the trial court and remand
    for a new trial, it is unnecessary for us to address the defendant’s second
    claim and the claims made by the plaintiff in her cross appeal. We address
    the defendant’s third and fourth claims because they are likely to arise
    on remand.
    4
    With respect to the plaintiff’s claim of retaliation, she filed a complaint
    with the commission on June 27, 2014, and received a release of jurisdiction
    on January 22, 2015.
    5
    On January 28, 2014, the defendant filed a motion to dismiss, which was
    granted in part. Specifically, the trial court, Cole-Chu, J., determined that
    the court lacked jurisdiction over any claims arising prior to October 16,
    2011. That ruling is not a subject of this appeal.
    6
    On April 21, 2017, the defendant filed a motion for summary judgment,
    which was denied by the court, Bates, J., on October 12, 2017.
    7
    Although the motion in limine cited General Statutes § 46a-8, that citation
    appears to be a typographical error. General Statutes § 46a-83 (d) provides:
    ‘‘Not later than sixty days after the date of sending notice that a complaint
    has been retained after a case assessment review, the executive director or
    the executive director’s designee shall assign an investigator or commission
    legal counsel to hold a mandatory mediation conference. A mediation confer-
    ence may but need not be held if the commission has held a pre-answer
    conciliation conference. The investigator or commission legal counsel
    assigned to conduct the mediation shall not be assigned to investigate the
    complaint. The mandatory mediation conference may not be scheduled for
    the same time as a fact-finding conference held pursuant to subsection (f)
    of this section. The mediator may hold additional mediation conferences
    to accommodate settlement discussions.’’
    8
    The defendant’s counsel was unable to find the citation to the statute
    on which she sought to rely and asked, ‘‘[m]ay I switch, Your Honor, since
    I was incorrect to [refer to] Tait and LaPlante and the Connecticut Supreme
    Court for authority?’’ The court responded: ‘‘No. You may not.’’
    The court later stated: ‘‘As long as we seem to be stopped for the moment,
    § 4-8 of the 2018 Code of Evidence titled, ‘offers to compromise,’ evidence
    of an offer to compromise or settle a disputed claim is inadmissible on the
    issues of liability and the amount of the claim. It does not require the
    exclusion of evidence offered for another purpose, such as proving bias or
    prejudice of a witness, refuting a contention of undue delay, or proving an
    effort to obstruct. Statements of fact or admissions of liability made by a
    party are also excluded from the applicability of the rule. So that’s—it’s 4-
    8 of the code.’’
    9
    General Statutes § 46a-84 (e) provides: ‘‘A human rights referee or attor-
    ney who volunteers service pursuant to subdivision (18) of section 46a-54
    may supervise settlement endeavors. In employment discrimination cases
    only, the complainant and respondent, with the permission of the chief
    referee, may engage in alternate dispute resolution endeavors for not more
    than three months. The cost of such alternate dispute resolution endeavors
    shall be borne by the complainant or the respondent, or both, and not by
    the commission. Any endeavors or negotiations for conciliation, settlement
    or alternate dispute resolution shall not be received in evidence.’’
    10
    With regard to mediation generally, General Statutes § 52-235d prohibits
    the disclosure, with certain exceptions, of oral or written communications
    received or obtained during the course of a mediation, which the statute
    defines as ‘‘a process, or any part of a process, which is not court-ordered,
    in which a person not affiliated with either party to a lawsuit facilitates
    communication between such parties and, without deciding the legal issues
    in dispute or imposing a resolution to the legal issues, which assists the
    parties in understanding and resolving the legal dispute of the parties.’’
    Section 52-235d (c) further provides that ‘‘[a]ny disclosure made in violation
    of any provision of this section shall not be admissible in any proceeding.’’
    11
    The mandatory mediation process is set forth in General Statutes § 46a-
    83 (d), which provides: ‘‘Not later than sixty days after the date of sending
    notice that a complaint has been retained after a case assessment review,
    the executive director or the executive director’s designee shall assign an
    investigator or commission legal counsel to hold a mandatory mediation
    conference. A mediation conference may but need not be held if the commis-
    sion has held a pre-answer conciliation conference. The investigator or
    commission legal counsel assigned to conduct the mediation shall not be
    assigned to investigate the complaint. The mandatory mediation conference
    may not be scheduled for the same time as a fact-finding conference held
    pursuant to subsection (f) of this section. The mediator may hold additional
    mediation conferences to accommodate settlement discussions.’’
    12
    In order to prevail on a reasonable accommodation claim, a plaintiff is
    required to show that ‘‘(1) he is disabled within the meaning of the [statute],
    (2) he was able to perform the essential functions of the job with or without
    a reasonable accommodation, and (3) [the defendant], despite knowing of
    [the plaintiff’s] disability, did not reasonably accommodate it. . . . If the
    employee has made such a prima facie showing, the burden shifts to the
    employer to show that such an accommodation would impose an undue
    hardship on its business.’’ (Internal quotation marks omitted.) Festa v. Board
    of Education, 
    145 Conn. App. 103
    , 114, 
    73 A.3d 904
    , cert. denied, 
    310 Conn. 934
    , 
    79 A.3d 888
    (2013). ‘‘Once a disabled individual has suggested to his
    employer a reasonable accommodation, federal law requires, and [our
    Supreme Court] agree[s], that the employer and the employee engage in an
    informal, interactive process with the qualified individual with a disability
    in need of the accommodation . . . [to] identify the precise limitations
    resulting from the disability and potential reasonable accommodations that
    could overcome those limitations. . . . In this effort, the employee must
    come forward with some suggestion of accommodation, and the employer
    must make a good faith effort to participate in that discussion.’’ (Citation
    omitted; internal quotation marks omitted.) Curry v. Allan S. Goodman,
    Inc., 
    286 Conn. 390
    , 416, 
    944 A.2d 925
    (2008).
    13
    The plaintiff further argues that, ‘‘[r]egardless of the correctness of the
    trial court’s ruling enforcing the discovery order, [the] defendant cannot
    demonstrate harmfulness.’’ In light of our resolution of the claim raised in
    part I of this opinion, in which we have concluded that the defendant is
    entitled to a reversal of the judgment and a new trial, it is unnecessary that,
    in relation to the defendant’s third and fourth claims, we undertake an
    analysis of whether such errors were harmful.
    14
    The plaintiff also indicated on the errata sheet ‘‘see also page 173:7-8.’’
    The testimony on that page relates to a February, 2013 incident in which a
    coworker came to work after having gone to a hair salon, and the plaintiff
    experienced a reaction. When asked whether she would have problems
    when she had gone to the hair salon on her own during that time, the
    plaintiff responded: ‘‘I was not going to the hairdressers back then.’’
    15
    We are not persuaded by the plaintiff’s argument that ‘‘because [the]
    defendant chose to accept the changes made to the errata sheet, [the]
    plaintiff’s prior testimony was not admissible.’’ The defendant’s pleading,
    in which it ‘‘accepted’’ the changes, merely provided the court with notice
    that it would proceed on its pending motion for summary judgment rather
    than notice a new deposition to address the amendments.
    16
    The defendant’s counsel also cited the commentary to § 8-3 (1) (A) of
    the Connecticut Code of Evidence, which provides in relevant part: ‘‘If the
    statement at issue was made by a party opponent in a deposition, the
    statement is admissible in accordance with Practice Book § 13-31 (a) (3).
    That provision permits an adverse party to use at trial, for any purpose, the
    deposition of a party . . . . This rule of practice was deemed ‘analogous’
    to the hearsay exception covered by Section 8-3 (1) in Gateway Co. v.
    DiNoia, 
    232 Conn. 223
    , 238 n.11, 
    654 A.2d 342
    (1995) (construing Practice
    Book [1978–97] § 248 [1] [c], predecessor to Practice Book § 13-31 [a] [3]).’’
    17
    The defendant’s counsel asked the plaintiff: ‘‘Ma’am, at your deposition
    on April 7, 2017, do you recall being asked, do you color your hair, and
    your response was, on occasion. Then you were asked, do you ever have
    your hair permed, and you said, on—I had on occasion. And then you were
    asked, when’s the last time you had your hair permed. You said, months
    ago. Then you were asked, question: Okay. Between 2010 and 2014, did you
    ever have your hair permed? Yes.’’
    18
    The commentary to § 8-3 (1) (D) of the Connecticut Code of Evidence
    also provides: ‘‘The notes of the advisory committee on the 1972 proposed
    rules express ‘[d]issatisfaction’ with the traditional rule requiring proof that
    the agent had actual authority to make the offered statement on behalf of
    the principal. The advisory committee notes cite to ‘[a] substantial trend
    [that] favors admitting statements related to a matter within the scope of
    the agency or employment. Grayson v. Williams, 
    256 F.2d 61
    [66] (10th Cir.
    1958); [see also Koninklijke Luchtvaart Maatschappij N.V. KLM Royal
    Dutch Airlines Holland] v. Tuller, [
    292 F.2d 775
    , 783–84 (D.C. Cir.), cert.
    denied, 
    368 U.S. 921
    , 
    82 S. Ct. 243
    , 
    7 L. Ed. 2d 136
    ] (1961); Martin v. [Savage
    Truck Line, Inc.], 
    121 F. Supp. 417
    [418–19] (D.D.C. 1954), and numerous
    state court decisions collected in 4 [J. Wigmore, Evidence (4th Ed. 1972)
    § 1078, pp. 166–69 n.2] . . . .’ Fed. R. Evid. 801 (d) (2) (D), advisory commit-
    tee notes. This trend has continued since then. See, e.g., B & K Rentals &
    Sales Co. v. Universal Leaf Tobacco Co., 
    324 Md. 147
    , 158, 
    596 A.2d 640
    (1991) (adopting federal approach and observing that ‘[t]he authorities, both
    courts and commentators, have almost universally condemned the strict
    [common-law] rule in favor of the . . . rule set forth in [rule 801 (d) (2)
    (D) of the Federal Rules of Evidence]’). Connecticut now adopts the modern
    rule as well, and, in doing so, overrules the line of cases adhering to the
    common law in requiring proof that the declarant was authorized to speak
    on behalf of the employer or principal. See, e.g., Cascella v. Jay James
    Camera Shop, Inc., 
    147 Conn. 337
    , 341, 
    160 A.2d 899
    (1960); Wade v. Yale
    University, 
    129 Conn. 615
    , 617–18, 
    30 A.2d 545
    (1943).’’