Monts v. Board of Education ( 2021 )

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HELEN MONTS v. BOARD OF EDUCATION
OF THE CITY OF HARTFORD
(AC 43856)
Prescott, Suarez and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for, inter alia,
disability discrimination pursuant to the Connecticut Fair Employment
Practices Act (§ 46a-51 et seq.) and for interference with the Family
and Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.) following the
termination of her employment. The plaintiff was first hired by the
defendant in 1995 but her position was eliminated and she was termi-
nated in June, 2015. The plaintiff was rehired for a new position in
August, 2015, and was subject to a probationary period for her first 120
days at work. In September, 2015, the plaintiff injured her left knee and
lower back while at work. The plaintiff was placed on modified work
duty but was eventually placed on an indefinite leave of absence and
remained on leave until October, 2015. She missed additional work in
November, 2015, after she experienced a flare-up of her knee injury.
All of the time that she missed from work was considered workers’
compensation leave by the defendant. The plaintiff received two negative
performance evaluations in January and February, 2016, based solely
on her performance while she was at work. The plaintiff was terminated
for her poor job performance in March, 2016. During the trial on the
plaintiff’s complaint, the trial court declined to instruct the jury on
the plaintiff’s FMLA interference claim, concluding that there was no
evidence to support the claim that the plaintiff made an FMLA request
to the defendant. On the plaintiff’s remaining claims, the jury returned a
verdict for the defendant and the court rendered judgment in accordance
with the verdict, from which the plaintiff appealed to this court. Held:
1. The trial court properly declined to charge the jury with regard to the
plaintiff’s claim of interference with the Family and Medical Leave Act
of 1993: the plaintiff failed to satisfy the preliminary requirement for
the court to consider her interference claim, namely, that she made an
initial showing that she was denied a right under FMLA, as there was
no evidence that the plaintiff made an FMLA request to the defendant
and, thus, the defendant had no notice that she was interested in utilizing
FMLA leave; moreover, the court’s determination that the defendant’s
policy with regard to nonconcurrent applications of workers’ compensa-
tion leave under the Workers’ Compensation Act (§ 31-275 et seq.) and
FMLA leave worked to the benefit of the plaintiff, was supported both
by federal regulation and by common sense, as allowing or requiring
the plaintiff to use both forms of leave at the same time would have
diminished the total legally available amount of her paid and unpaid
leave; furthermore, the plaintiff offered no evidence to demonstrate to
the jury that she was prejudiced by the defendant’s long-standing policy
not to run workers’ compensation leave and FMLA leave concurrently,
and, even if such evidence had been offered, it would not have been
relevant to the defendant’s evaluations of the plaintiff’s work during her
probationary period.
2. The trial court did not err in admitting into evidence a letter written by
the plaintiff’s coworker, containing observations about the plaintiff’s
workplace behavior and performance, under the business records excep-
tion to the hearsay rule: the letter was made in the regular course of
the defendant’s business, as the record made clear that it was standard
procedure for the defendant to subject new employees to a probationary
period, based on their actual days at work, and to evaluate the perfor-
mance of these employees during that period; moreover, even if the
letter was inadmissible hearsay, any error in its admission into evidence
was harmless because the author of the letter also testified at trial, and
the opinions expressed in the letter were made directly to the jury and
the plaintiff did not object to the testimony.
3. The trial court did not abuse its discretion in refusing to admit into
evidence certain medical records of the plaintiff; the records the plaintiff
sought to admit into evidence were created after the date of her termina-
tion of employment and described her condition as it existed approxi-
mately six months after she was terminated and the court concluded
that the evidence lacked probative value as to whether the plaintiff had
a chronic condition at the time she was employed by the defendant,
the records containing no information as the plaintiff’s condition at the
time she was discharged.
Argued May 20—officially released July 20, 2021
Procedural History
Action to recover damages for, inter alia, alleged dis-
ability discrimination, and for other relief, brought to
the Superior Court in the judicial district of Hartford
and tried to the jury before Scholl, J.; verdict and judg-
ment for the defendant, from which the plaintiff
appealed to this court. Affirmed.
James V. Sabatini, for the appellant (plaintiff).
Lisa S. Lazarek, for the appellee (defendant).
Opinion
BEAR, J. The plaintiff, Helen Monts, appeals from
the judgment of the trial court, rendered after a jury
trial, in favor of the defendant, the Board of Education
of the City of Hartford. On appeal, the plaintiff claims
that the court erred by (1) failing to charge the jury on
her claim of interference with the Family and Medical
Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq.
(2012), (2) admitting inadmissible hearsay into evi-
dence, and (3) precluding evidence showing that she
was disabled within the meaning of the Connecticut Fair
Employment Practices Act (CFEPA), General Statutes
§ 46a-51 et seq. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of the plaintiff’s appeal. The plaintiff initially
was hired by the defendant in February, 1995, as a
‘‘house secretary.’’ In 2014, the plaintiff was employed
by the defendant as an executive assistant at Opportu-
nity High School in Hartford. On June 30, 2015, after
being notified that her position was being eliminated,
the plaintiff’s employment was terminated by the defen-
dant. On August 26, 2015, the defendant rehired the
plaintiff as a secretary in the facilities department. As
was customary for the defendant, the plaintiff’s employ-
ment in this position was subject to a 120 ‘‘working
day’’ probationary period, meaning that she was subject
to enhanced scrutiny, and potential termination, based
on her performance during her first 120 days at work
in her new position. On September 1, 2015, the plaintiff
injured her left knee and lower back while in the work-
place. On that same day, the plaintiff reported her injur-
ies to the defendant and received medical care.
After receiving care for her workplace injuries, the
plaintiff was placed on modified work duty, in accor-
dance with her physicians’ recommendations that she
work reduced hours and refrain from lifting objects or
standing. After the plaintiff began experiencing radiat-
ing pain and numbness in her leg, she was placed on
an indefinite leave of absence. The plaintiff remained
on leave until October 28, 2015, when she returned with
the recommendations that she not lift objects or stand.
On November 2, 2015, the plaintiff experienced another
flare-up of her knee injury that required her to miss
additional time from work. All of the time that the
plaintiff missed from work was considered workers’
compensation leave by the defendant because her injur-
ies were work-related and because the plaintiff had not
requested FMLA leave. In any event, it was the long-
standing policy of the defendant not to run FMLA leave
concurrently with workers’ compensation leave. The
defendant instituted and applied this policy because,
unlike workers’ compensation leave, FMLA leave could
be used to care for a sick family member or for the
employee’s own nonwork related injury or illness. The
policy had been in place since at least 1997.
On January 26, 2016, the plaintiff received a negative
performance evaluation informing her that her quality
of work, adaptability, and planning and organizing
needed improvement. On February 24, 2016, the plain-
tiff received a second negative performance evaluation,
this time noting that her quality of work was unsatisfac-
tory, and that she had not shown improvement in any
performance categories since her last evaluation. Both
performance evaluations were based solely on the plain-
tiff’s performance while she was at work and did not
consider her absences that resulted from her injuries.
On March 2, 2016, while the plaintiff was still in her
probationary period, the defendant terminated her
employment on the basis of her poor job performance.
At the time of her termination, the plaintiff was still
being treated for her knee injury.
On March 2, 2018, the plaintiff commenced this action
against the defendant, alleging in a five count complaint
that it had engaged in (1) disability discrimination in
violation of CFEPA, (2) retaliation in violation of
CFEPA, (3) retaliation in violation of § 31-290a of the
Workers’ Compensation Act, General Statutes § 31-275
et seq., (4) interference with her exercise of rights under
FMLA, and (5) FMLA retaliation.
At trial, the plaintiff argued that there was sufficient
evidence to support her allegations in counts four and
five of FMLA interference and retaliation, and submit-
ted to the court proposed jury instructions on those
counts. The plaintiff also argued that there was suffi-
cient evidence for the jury to conclude that the plaintiff
had put the defendant on notice that her injuries were
likely an FMLA qualifying event. The court, however,
declined to instruct the jury on the plaintiff’s FMLA
counts, concluding that there was no evidence ‘‘to sup-
port the claim that the plaintiff even made an FMLA
request to the defendant.’’ The court ultimately charged
the jury on the plaintiff’s remaining counts, and the jury
returned a verdict in favor of the defendant on those
counts. The court then rendered judgment for the defen-
dant. It is from this judgment that the plaintiff appeals.
On appeal, the plaintiff claims that the court erred by
(1) failing to charge the jury on her FMLA interference
claim,1 (2) admitting inadmissible hearsay into evi-
dence, and (3) precluding evidence showing that she
was disabled within the meaning of CFEPA. Additional
facts and procedural history will be set forth as neces-
sary.
I
The plaintiff’s first claim is that the court erred by
failing to charge the jury on her FMLA interference
claim. Specifically, the plaintiff claims that ‘‘[t]he evi-
dence in the case supported a jury charge on the FMLA
interference claim,’’ and that ‘‘[t]he trial court’s reason-
ing for not charging the jury on the . . . claim was
flawed.’’ According to the plaintiff, the court (1) improp-
erly ‘‘assumed that the defendant’s policy was to not
run the FMLA [leave] concurrently with [the] workers’
compensation leave,’’ and (2) failed to account for the
fact that an ‘‘FMLA interference claim does not require
proof of intent.’’ In response, the defendant argues that
‘‘[g]iven the lack of any evidence that the plaintiff was
harmed by the [defendant’s] policy not to run the two
leaves concurrently, there was no reason for the trial
judge to put this claim to the jury . . . .’’ We agree
with the defendant.
‘‘It is well established that [j]ury instructions should
be confined to matters in issue by virtue of the pleadings
and evidence in the case. . . . It is error to submit a
specification . . . to the jury in respect to which no
evidence has been offered.’’ (Internal quotation marks
omitted.) Al-Janet, LLC v. B & B Home Improvements,
LLC, 101 Conn. App. 836, 841, 925 A.2d 327, cert. denied,
284 Conn. 904, 931 A.2d 261 (2007). In the present case,
the court’s decision to not charge the jury regarding
the plaintiff’s FMLA interference claim is ‘‘tantamount
to a directed verdict.’’ Musorofiti v. Vlcek, 65 Conn.
App. 365, 371, 783 A.2d 36, cert. denied, 258 Conn. 938,
786 A.2d 426 (2001). Thus, the standard of review that
we must apply is that applicable to directed verdicts.
‘‘Our standard of review of a directed verdict is well
settled. A trial court should direct a verdict for a defen-
dant if, viewing the evidence in the light most favorable
to the plaintiff, a jury could not reasonably and legally
reach any other conclusion than that the defendant is
entitled to prevail.’’ (Internal quotation marks omitted.)
Id., 371–72.
With regard to claims of FMLA interference, our
Supreme Court has ‘‘endorse[d] the framework
employed by the majority of federal courts . . . .’’ Cen-
dant Corp. v. Commissioner of Labor, 276 Conn. 16,
31, 883 A.2d 789 (2005). Under this burden-shifting
framework, ‘‘the employee [must] make an initial show-
ing that she has been denied a right under FMLA and
that the denial of that right was caused in part by her
leave. . . . Once an employee has made this showing,
liability attaches to the employer for a violation of
FMLA. . . . [A]n employee alleging a claim of interfer-
ence under FMLA does not need to prove the employer’s
intent for liability to attach to the employer. . . . To
underscore the immateriality of the employer’s intent,
some courts have described this attachment of liability
to the employer absent a showing of intent as ‘strict
liability.’ . . . [T]he use of the term ‘strict liability’
signifies only that an employee need not prove the
employer’s intent when claiming that the employer
interfered with her rights under FMLA. . . . An
employer may overcome the attachment of so-called
strict liability by demonstrating, by way of affirmative
defense, that an employee would have been terminated
even if she had not taken leave. . . . Accordingly, the
framework . . . places on the employer the ultimate
burden of proving that the employee would have been
terminated even if she had not taken leave.’’ (Citations
omitted.) Id., 28–30.
In the present case, the court, in declining to charge
the jury on the plaintiff’s FMLA interference claim,
found that the trial evidence did not support this claim,
and that ‘‘there was not any real evidence to support
the claim that [the] plaintiff even made an FMLA request
to the defendant.’’ Thus, the plaintiff did not satisfy the
preliminary requirement for the court to consider her
claim that an FMLA interference claim does not require
proof of intent. The court further found that ‘‘there was
evidence that the benefits of the Workers’ Compensa-
tion Act were better for the plaintiff than [they] would
have been under the FMLA. And that [the] policy that
the [defendant] stated about [not] running FMLA and
workers’ compensation benefits concurrently was to
the benefit of the plaintiff.’’ Our review of the record
supports the court’s findings. There is nothing in the
record to suggest that the plaintiff ever requested FMLA
leave, and thus the defendant had no specific notice
that she was interested in utilizing it. Additionally, it is
clear that the defendant’s policy with regard to the
nonconcurrent applications of workers’ compensation
and FMLA leave was long-standing, and that it worked
to the benefit of the plaintiff and other employees
because workers’ compensation leave applies only to
a work-related personal illness or injury, while FMLA
leave could be used for nonwork-related situations such
as the need to care for an ill or injured family member.
This conclusion is supported by both federal regulation2
and by common sense; to allow or to require the plaintiff
and other employees to use both forms of leave at the
same time diminishes the total legally available amount
of their paid and unpaid leave. Furthermore, the plaintiff
offered no evidence to demonstrate to the jury that she
was prejudiced by the defendant’s policy of nonconcur-
rent leaves and, even if such evidence had been offered,
it would not be relevant to the defendant’s evaluations
of the plaintiff’s work during the times she was present
during the probationary period. Therefore, we conclude
that the court properly declined to charge the jury with
regard to this claim.
II
The plaintiff’s second claim is that the court erred
by admitting inadmissible hearsay into evidence. Specif-
ically, the plaintiff claims that the evidence at issue—
a letter written by Hope Newton, the plaintiff’s
coworker, at the request of her supervisor—was
improperly admitted into evidence during Newton’s tes-
timony under the business records exception to the
hearsay rule. The letter at issue contained Newton’s
observations of the plaintiff’s workplace behavior and
performance. According to the plaintiff, the letter is
‘‘not a business record because it was not in Newton’s
regular course of business to create such a document.’’
The defendant counters that the plaintiff’s reading of
this exception is ‘‘unduly narrow,’’ and that the court
properly admitted the letter under the exception. We
agree with the defendant.
Both the plaintiff and the defendant state that the
standard of review of the court’s ruling on this issue is
that of abuse of discretion. ‘‘It is well settled that [t]he
trial court’s ruling on the admissibility of evidence is
entitled to great deference. . . . [T]he trial court has
broad discretion in ruling on the admissibility . . . of
evidence. . . . [Its] ruling on evidentiary matters will
be overturned only upon a showing of a clear abuse of
the court’s discretion. . . . We will make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion.’’ (Emphasis omitted; internal quotation marks
omitted.) Tomick v. United Parcel Service, Inc., 135
Conn. App. 589, 628, 43 A.3d 722, cert. denied, 305 Conn.
920, 47 A.3d 389 (2012), and cert. denied, 305 Conn.
920, 47 A.3d 389 (2012); see also McNeff v. Vinco, Inc.,
59 Conn. App. 698, 701, 757 A.2d 685 (2000). However,
‘‘[t]o the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the [Connecticut]
Code of Evidence, our standard of review is plenary.’’
(Internal quotation marks omitted.) State v. Maguire,
310 Conn. 535, 572, 78 A.3d 828 (2013).
The court admitted the letter into evidence under the
business records exception, which states: ‘‘Any writing
or record, whether in the form of an entry in a book
or otherwise, made as a memorandum or record of any
act, transaction, occurrence or event, shall be admissi-
ble as evidence of the act, transaction, occurrence or
event, if the trial judge finds that it was made in the
regular course of any business, and that it was the
regular course of the business to make the writing or
record at the time of the act, transaction, occurrence
or event or within a reasonable time thereafter.’’
(Emphasis added.) Conn. Code Evid. § 8-4 (a). The plain
language of § 8-4 (a) makes clear that the business
records exception applies when the record at issue was
made in the regular course of the business, not in the
regular course of the general work responsibilities of
the individual who authors it. In light of the record,
which makes clear that it was standard procedure for
the defendant to subject new employees to a probation-
ary period, based on their actual days at work, and to
evaluate the performance of these employees during
that period, we conclude that the court did not err in
admitting the letter into evidence under the business
records exception.
In any event, even if we were to determine that there
was error in the admission of the letter and that it was
inadmissible hearsay, that error would be harmless.
This is true because, in light of Newton’s testimony, to
which the plaintiff did not object, the same opinions
expressed in the letter were made directly to the jury,
and, therefore, even if the letter had been excluded,
the result would almost certainly have been the same.
See In re Tayler F., 111 Conn. App. 28, 54, 958 A.2d
170 (2008) (‘‘[T]he court abused its discretion by ruling
that the information in [a] report was admissible under
the business record exception to the hearsay rule. The
respondent, however, cannot show that any harm
resulted from the erroneous admission . . . [because]
a witness to all of the events discussed in the report
testified about all of the allegations in the report.’’ (Cita-
tion omitted.)), aff’d, 296 Conn. 524, 995 A.2d 611 (2010);
see also Iino v. Spalter, 192 Conn. App. 421, 431, 218
A.3d 152 (2019) (‘‘[B]efore a party is entitled to a new
trial because of an erroneous evidentiary ruling, he or
she has the burden of demonstrating that the error was
harmful. . . . The harmless error standard in a civil
case is whether the improper ruling would likely affect
the result.’’ (Internal quotation marks omitted.)).
III
The plaintiff’s final claim is that the court erred by
refusing to admit into evidence certain ‘‘medical records
[that] were relevant to proving that [the] plaintiff had
a disability within the meaning of [CFEPA].’’ In
response, the defendant claims that ‘‘[t]he [plaintiff’s]
position in this regard is unavailing because there was
sufficient medical evidence on the record pertaining to
[her] condition from which the jury could have deter-
mined whether [she] was disabled . . . .’’ We agree
with the defendant.
As discussed previously, a court’s ruling on the admis-
sibility of evidence is entitled to great deference, and
a ruling on evidentiary matters will not be overturned
unless there is a clear showing that the court abused
its discretion. Tomick v. United Parcel Service, Inc.,
supra, 135 Conn. App. 628. ‘‘Evidence is admissible only
if it is relevant. . . . Relevant evidence is evidence that
has a logical tendency to aid the trier in the determina-
tion of an issue. . . . One fact is relevant to another
if in the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . It is
well settled that questions of relevance are committed
to the sound discretion of the trial court.’’ (Internal
quotation marks omitted.) Boretti v. Panacea Co., 67
Conn. App. 223, 227–28, 786 A.2d 1164 (2001), cert.
denied, 259 Conn. 918, 791 A.2d 565 (2002).
At trial, the plaintiff offered as full exhibits the medi-
cal records at issue, which were created after the date
of the termination of her employment. The defendant
objected to their admission on the ground of relevance.
In sustaining the defendant’s objection, the court stated:
‘‘I’m not so sure [this evidence] has probative value as
to whether she had a chronic condition at that time she
was [employed by the defendant]—I mean you want
[the jury] to be able to speculate that because she had
a chronic condition . . . six months later she’s got a
chronic condition . . . prior too.’’ The records at issue
clearly were created after the plaintiff’s employment
with the defendant was terminated, and, crucially,
described her condition as it existed approximately six
months after she was terminated. There is nothing in
these records that refers to the plaintiff’s condition at
the time she was discharged; each report refers only
to her condition at the time the record was made. There-
fore, the court did not abuse its discretion in excluding
these reports from evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff appeals only with regard to the FMLA interference count
and does not take issue with the court’s refusal to charge the jury on her
FMLA retaliation count.
2
Title 29 of the Code of Federal Regulations, § 825.702 (d) (2), provides
in relevant part that ‘‘[a]n employee may be on a workers’ compensation
absence due to an on-the-job injury or illness which also qualifies as a
serious health condition under FMLA. The workers’ compensation absence
and FMLA leave may run concurrently (subject to proper notice and designa-
tion by the employer).’’ (Emphasis added.) Thus, when an employee is out
on workers’ compensation leave, there is no requirement that the employer
run the employee’s FMLA leave concurrently. In fact, an employer cannot run
the leaves concurrently unless they take specific additional steps designed
to put the employee on notice that his or her limited amount of FMLA leave
is going to be used.