Dept. of Pubic Health v. Estrada ( 2022 )

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DEPARTMENT OF PUBLIC HEALTH v.
JUANITA ESTRADA ET AL.
(AC 43891)
Alexander, Suarez and DiPentima, Js.
Syllabus
The defendant E filed a complaint with the defendant Commission on Human
Rights and Opportunities, alleging that her employer, the plaintiff Depart-
ment of Public Health, had retaliated against her for a protected whis-
tleblower disclosure that she made pursuant to statute (§ 4-61dd). As
part of her job duties, E was assigned to review an appointment letter
submitted to the department by the then director of health for the city
of Hartford, requesting approval of W as the acting director of health
for the city. Both the letter and W’s resume indicated that W held a
master’s degree in public health. Although she did not independently
verify that W had actually received a master’s degree in public health,
E drafted a letter approving W’s appointment, which the commissioner
of the department signed. E later learned that W did not possess a
master’s degree in public health, and she reported that information to
her supervisor. Following this disclosure, E received multiple written
reprimands and negative and unsatisfactory performance appraisals,
and she was demoted, all of which she claimed were the result of
retaliation for her disclosure. A hearing was held before a human rights
referee from the commission’s Office of Public Hearings, who concluded
that E had made a protected whistleblower disclosure under § 4-61dd
and that the department had retaliated against her for such disclosure.
The department appealed to the trial court, which sustained the appeal,
concluding that E’s disclosure did not qualify as a whistleblower disclo-
sure under § 4-61dd, that E failed to establish a causal connection
between any alleged whistleblower disclosure and the complained of
personnel actions, and that the commission lacked subject matter juris-
diction to adjudicate E’s complaint because she had brought the same
adverse personnel actions at issue through the grievance procedures in
her collective bargaining agreement. On appeal to this court, held:
1. The trial court erred in concluding that the commission lacked subject
matter jurisdiction to adjudicate E’s complaint: it was undisputed that
§ 4-61dd contains a statutory waiver of sovereign immunity and confers
on the Office of Public Hearings the authority to adjudicate whis-
tleblower retaliation claims; moreover, the fact that § 4-61dd provides
an alternative avenue for a complainant to seek redress for adverse
personnel actions taken in retaliation for a whistleblower disclosure,
namely, through the procedures provided in an applicable collective
bargaining contract, did not deprive the Office of Public Hearings of
subject matter jurisdiction over E’s claim, as the issue concerned her
election of remedies rather than subject matter jurisdiction; accordingly,
pursuant to § 4-61dd, the Office of Public Hearings had subject matter
jurisdiction to adjudicate E’s whistleblower retaliation claim.
2. The trial court properly concluded that E did not make a protected
whistleblower disclosure pursuant to § 4-61dd: the educational qualifica-
tions required by statute ((Rev. to 2015) § 19a-200) did not apply to W,
an acting director of health, because the statute distinguishes between
directors of public health, who must, inter alia, possess a degree in
public health, and acting directors of health, who must only be deemed
suitable to serve as acting director during the period in which the director
of public health is absent or unable to serve or in which a vacancy
exists; accordingly, because W’s appointment did not result in a violation
of (Rev. to 2015) § 19a-200, E did not disclose a violation of state law,
and she was not entitled to protection under § 4-61dd.
Argued October 14, 2021—officially released March 15, 2022
Procedural History
Appeal from the decision of a human rights referee
for the defendant Commission on Human Rights and
Opportunities concluding that the named defendant
made a protected whistleblower disclosure for which
the plaintiff had retaliated, brought to the Superior
Court in the judicial district of New Britain, where the
court, Cordani, J., rendered judgment sustaining the
appeal, from which the defendants appealed to this
court. Affirmed.
Anna-Marie Puryear, human rights attorney, with
whom, on the brief, were Michael E. Roberts, human
rights attorney, and Eric C. Krupa, former human rights
attorney, for the appellant (defendant Commission on
Human Rights and Opportunities).
Jennifer P. Bennett, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, Clare E. Kindall, solicitor general, and Matthew
Larock, assistant attorney general, for the appellee
(plaintiff).
Opinion
ALEXANDER, J. This appeal arises out of an alleged
whistleblower retaliation action filed by the defendant
Juanita Estrada in which a human rights referee (ref-
eree) from the Office of Public Hearings (office of public
hearings) of the defendant Commission on Human
Rights and Opportunities (commission) concluded that
Estrada made a protected whistleblower disclosure pur-
suant to General Statutes § 4-61dd. Thereafter, the
Superior Court sustained the appeal of the plaintiff, the
Department of Public Health (department), concluding
that Estrada’s disclosure to her supervisor was not a
whistleblower disclosure under § 4-61dd, that Estrada
failed to establish a causal connection between any
alleged whistleblower disclosure and the complained
of personnel actions, and that the commission lacked
subject matter jurisdiction to adjudicate Estrada’s com-
plaint because she had brought the same adverse per-
sonnel actions at issue through the grievance proce-
dures in her collective bargaining agreement. On appeal,
the commission claims that the court erred (1) in con-
cluding that the commission lacked subject matter juris-
diction to adjudicate Estrada’s complaint, (2) in con-
cluding that Estrada did not make a protected
whistleblower disclosure pursuant to § 4-61dd, (3) in
concluding that Estrada failed to establish a causal con-
nection between the alleged disclosure and the adverse
personnel actions, and (4) by failing to apply the proper
standard of review in its analysis of the administrative
decision. We agree with the commission that the court
improperly determined that the commission lacked sub-
ject matter jurisdiction to adjudicate Estrada’s whis-
tleblower retaliation complaint. We determine, how-
ever, that the court properly concluded that Estrada
did not make a protected whistleblower disclosure pur-
suant to § 4-61dd and that the court applied the proper
standard of review in making this determination.
Accordingly, we affirm the judgment of the court.
The following facts, as found by the referee, and
procedural history are relevant to our resolution of
the defendants’ appeal. Estrada began working for the
department in 1995 as an epidemiologist. By 2010, she
had been promoted to the position of epidemiologist 4
within the department’s division of the Office of Local
Health Administration (OLHA). The OLHA is responsi-
ble for coordinating with and ensuring delivery of public
health services to local health departments. These local
health departments are made up of municipal health
departments and regional health districts. Pursuant to
General Statutes (Rev. to 2015) § 19a-200 (a),1 the direc-
tor of each local health department is nominated at the
local level.2
Section 19a-200 also prescribes the minimum qualifi-
cations that a director of health must possess. Pursuant
to § 19a-200 (a), the director of health for a municipality
must ‘‘(1) be a licensed physician and hold a degree
in public health from an accredited school, college,
university, or institution, or (2) hold a graduate degree
in public health from an accredited school, college or
institution. . . .’’ General Statutes (Rev. to 2015) § 19a-
200 (a). Additionally, § 19a-200 (a) provides in relevant
part: ‘‘In case of the absence or inability to act of a city,
town or borough director of health or if a vacancy exists
in the office of such director, the appointing authority
of such city, town or borough may, with the approval
of the [commissioner of the department], designate in
writing a suitable person to serve as acting director of
health during the period of such absence or inability
or vacancy, provided the commissioner [of the depart-
ment] may appoint such acting director if the city, town
or borough fails to do so. The person so designated,
when sworn, shall have all the powers and be subject
to all the duties of such director. . . .’’ General Statutes
(Rev. to 2015) § 19a-200 (a).
As part of Estrada’s job duties as an epidemiologist
4 within the OLHA, she was assigned to review an appli-
cant’s qualifications to serve as a director or acting
director of health. ‘‘[T]he customary process within the
OLHA was to review a letter from a municipality or a
district board of health appointing an individual to a
permanent or acting director of health. Once the OLHA
received the appointment letter from a municipality or
the district board of health, [Estrada] would review the
appointed individual’s resume to ensure that it stated
that the individual had a graduate degree from an accred-
ited school.’’ ‘‘Once [Estrada] reviewed the appointment
letter and resume, she would then draft a letter for
[Ellen] Blaschinski’s3 review stating that the [depart-
ment] approved the appointment. After Blaschinski
reviewedthe letter shewouldsendit [to]thecommissioner
of [the department] for [the commissioner’s] review.
Between 2011 and July, 2015, [Estrada] and Blaschinski
undertook this process approximately ten times.’’
‘‘On May 8, 2015, [Raul] Pino, then director of health
for the city of Hartford, submitted a letter requesting
approval of Ruonan Wang as acting director of health
for the city of Hartford.’’ Both Pino’s letter and Wang’s
resume stated that Wang held a master’s degree in pub-
lic health from the University of Connecticut. After
receiving the letter and resume, Estrada drafted a letter
for Blaschinski’s review but did not verify that Wang
actually had received a master’s degree in public health.
The letter subsequently was signed by the commis-
sioner of the department approving Wang’s appoint-
ment as acting director of health.4
On June 17, 2015, an employee of the department
notified Estrada that she had received information from
an employee of the city of Hartford that Wang did not
possess a master’s degree in public health. Estrada
asked her secretary to contact the University of Con-
necticut, who confirmed that Wang in fact did not
receive a master’s degree in public health from the
university.5 Thereafter, Estrada reported this new infor-
mation to Blaschinski.
In July, 2017, Estrada filed an amended complaint
with the commission in which she alleged that her
report to Blaschinski, which stated that Wang did not
possess a graduate degree in public health, disclosed
a violation of § 19a-200 because the statute requires
that a person nominated for the position of director of
health hold a graduate degree in public health. She
alleged that this new information constituted a pro-
tected whistleblower disclosure pursuant to § 4-61dd.
She further claimed that, after her report to Blaschinski,
she was subjected to retaliation on multiple occasions.
Estrada alleged that, in response to her disclosure, she
received multiple ‘‘unwarranted and unjustified written
reprimand[s]’’ and ‘‘negative and unsatisfactory perfor-
mance appraisal[s]’’ and that she was demoted from
the position of epidemiologist 4 to epidemiologist 3.
Pursuant to § 4-61dd, Estrada sought, inter alia, ‘‘com-
pensation for [lost wages], restoration of her position
[as] epidemiologist 4, [damages for] emotional distress
and loss of enjoyment [of life’s activities], the removal
of documentation from her personnel file reflecting the
acts of retaliation against her, and reimbursement for
the attorney’s fees and costs that she has incurred
. . . .’’
A hearing on Estrada’s complaint took place in Sep-
tember, 2017. In July, 2018, the referee issued a final
decision in which she concluded that Estrada had made
a protected whistleblower disclosure under § 4-61dd
and that the department had retaliated against her.6
Thereafter, the department appealed to the Superior
Court. On January 14, 2020, after a hearing, the court
issued a memorandum of decision sustaining the appeal
and rendering judgment for the department. The court
concluded that the commission lacked subject matter
jurisdiction to adjudicate the complaint, that Estrada
had not made a protected whistleblower disclosure
under § 4-61dd, and that Estrada had failed to establish
a causal connection between any alleged whistleblower
disclosure and the alleged retaliation.7 This appeal fol-
lowed.
I
We first address the commission’s claim that the
court erred in concluding that the commission lacked
subject matter jurisdiction to adjudicate Estrada’s com-
plaint. We agree.
The following additional facts and procedural history
are relevant to our resolution of this claim. In its answer
to Estrada’s amended whistleblower retaliation com-
plaint, the department asserted five special defenses.
The first special defense asserted that ‘‘[t]he office of
public hearings lacks subject matter jurisdiction over
this complaint, as [Estrada] fails to make a valid claim
of whistleblower retaliation, as required by . . . § 4-
61dd.’’8 Additionally, the department filed a ‘‘motion to
dismiss and/or strike’’ in which it argued, inter alia, that
the office of public hearings lacked jurisdiction ‘‘to hear
a whistleblower claim for any of [Estrada’s] alleged
adverse personnel actions for which she has filed a
grievance under her collective bargaining contract . . .
because the two remedies are mutually exclusive’’ and
that Estrada’s claims did not ‘‘fall under the purview
of . . . § 4-61dd and are therefore barred by sovereign
immunity.’’ This motion was denied by the referee.
In its posthearing brief, the department argued that
the office of public hearings lacked jurisdiction because
§ 4-61dd offered Estrada ‘‘a clear choice of either filing
a grievance or bringing the instant [whistleblower retali-
ation] case, but not both.’’ (Emphasis omitted.) The
department asserted that, because Estrada had filed
grievances in connection with the adverse employment
actions that she claimed were acts of retaliation in her
whistleblower retaliation complaint, the office of public
hearings had no jurisdiction to hear the case. In addi-
tion, the department argued that Estrada’s claim did
not ‘‘qualify as a whistleblower retaliation claim under
the plain meaning of [§ 4-61dd]’’ and, therefore, the
action was ‘‘barred by sovereign immunity’’ and
‘‘beyond the jurisdiction of [the office of public hear-
ings] . . . .’’
In her decision, the referee determined that the office
of public hearings had subject matter jurisdiction over
Estrada’s whistleblower retaliation complaint. The ref-
eree stated that, ‘‘[w]hen a defendant challenges a com-
plaint on the ground that a plaintiff has elected an
exclusive remedy, the issue is properly raised by a spe-
cial defense and not a motion to dismiss since [i]t is
both rational and fair to place the burden of pleading
and proving an election of remedies on the party
asserting the claim . . . .’’ (Internal quotation marks
omitted.) She concluded that the department’s ‘‘argu-
ment that this tribunal does not have jurisdiction and
violates sovereign immunity is without merit . . . .’’
The court disagreed with the referee’s conclusion
and determined that the office of public hearings lacked
subject matter jurisdiction to hear Estrada’s whis-
tleblower retaliation case. The court discussed the three
grievances filed by Estrada and determined that her
whistleblower retaliation complaint challenged the
same personnel actions that were raised in her griev-
ances. The court analyzed the relevant statute, § 4-61dd,
and concluded that, because ‘‘the statute clearly pro-
vides a mutually exclusive choice in this regard,
[Estrada] is precluded from relitigating the propriety
of the same personnel actions before the [referee]. The
statute offered [Estrada] a clear choice of either filing
grievances or bringing the instant [whistleblower retali-
ation] case to address the personnel actions, but not
both.’’
On appeal, the department argues that ‘‘[t]he fact that
Estrada filed grievances regarding the same adverse
personnel actions at issue in this case deprived [the
office of public hearings] of subject matter jurisdiction
because Estrada’s claim does not fall within the stat-
ute’s limited waiver of sovereign immunity.’’ We are not
persuaded by this contention and conclude that the
office of public hearings had subject matter jurisdiction
to adjudicate Estrada’s whistleblower retaliation claim
pursuant to § 4-61dd.
We begin our analysis by setting forth the legal princi-
ples relevant to our review of this claim. ‘‘The principle
that the state cannot be sued without its consent, or
sovereign immunity, is well established under our case
law. . . . [T]he practical and logical basis of the doc-
trine [of sovereign immunity] is today recognized to
rest . . . on the hazard that the subjection of the state
and federal governments to private litigation might con-
stitute a serious interference with the performance of
their functions and with their control over their respec-
tive instrumentalities, funds, and property.’’ (Internal
quotation marks omitted.) Jezouit v. Malloy, 193 Conn.
App. 576, 584, 219 A.3d 933 (2019).
‘‘Sovereign immunity relates to a court’s subject mat-
ter jurisdiction over a case, and therefore presents a
question of law over which we exercise de novo review.
. . . In so doing, we must decide whether [the trial
court’s] conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Columbia Air Ser-
vices, Inc. v. Dept. of Transportation, 293 Conn. 342,
349, 977 A.2d 636 (2009).
‘‘[I]t is well established that, in determining whether
a court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged. . . . Sub-
ject matter jurisdiction involves the authority of the
court to adjudicate the type of controversy presented
by the action before it. . . . The subject matter juris-
diction requirement may not be waived by any party,
and also may be raised by a party, or by the court sua
sponte, at any stage of the proceedings, including on
appeal.’’ (Internal quotation marks omitted.) Sousa v.
Sousa, 322 Conn. 757, 770, 143 A.3d 578 (2016).
Furthermore, ‘‘[s]ubject matter jurisdiction does not
rest on the viability of the claims that a court is asked
to adjudicate. Subject matter jurisdiction involves the
authority of a court to adjudicate the type of contro-
versy presented by the action before it. . . . A court
does not truly lack subject matter jurisdiction if it has
competence to entertain the action before it. . . . Once
it is determined that a tribunal has authority or compe-
tence to decide the class of cases to which the action
belongs, the issue of subject matter jurisdiction is
resolved in favor of entertaining the action.’’ (Emphasis
in original; internal quotation marks omitted.) Olympus
Healthcare Group, Inc. v. Muller, 88 Conn. App. 296,
300, 870 A.2d 1091 (2005).
‘‘[T]he sovereign immunity enjoyed by the state is
not absolute. There are [three] exceptions: (1) when the
legislature, either expressly or by force of a necessary
implication, statutorily waives the state’s sovereign
immunity . . . (2) when an action seeks declaratory
or injunctive relief on the basis of a substantial claim
that the state or one of its officers has violated the
plaintiff’s constitutional rights . . . and (3) when an
action seeks declaratory or injunctive relief on the basis
of a substantial allegation of wrongful conduct to pro-
mote an illegal purpose in excess of the officer’s statu-
tory authority. . . . For a claim made pursuant to the
first exception, this court has recognized the well estab-
lished principle that statutes in derogation of sovereign
immunity should be strictly construed. . . . Where
there is any doubt about their meaning or intent they
are given the effect which makes the least rather than
the most change in sovereign immunity. . . . In the
absence of a proper factual basis in the complaint to
support the applicability of these exceptions, the grant-
ing of a motion to dismiss on sovereign immunity
grounds is proper.’’ (Citations omitted; internal quota-
tion marks omitted.) Columbia Air Services, Inc. v.
Dept. of Transportation, supra, 293 Conn. 349–50.
The department does not dispute that § 4-61dd con-
tains a statutory waiver of sovereign immunity. Rather,
the department argues that, because Estrada filed griev-
ances challenging the same adverse personnel actions
that form the basis of her whistleblower complaint,
her whistleblower retaliation action falls outside of the
waiver of sovereign immunity in § 4-61dd and, there-
fore, the office of public hearings lacks subject matter
jurisdiction to hear Estrada’s whistleblower claim. By
way of this argument, the department attempts to trans-
form an election of remedies claim into an issue of
subject matter jurisdiction by implicating sovereign
immunity.
‘‘As a general rule, facts must be pleaded as a special
defense when they are consistent with the allegations
of the complaint but demonstrate, nonetheless, that the
plaintiff has no cause of action.’’ Mitchell v. Guardian
Systems, Inc., 72 Conn. App. 158, 166, 804 A.2d 1004,
cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). Our
courts previously have stated that an election of reme-
dies claim is properly raised by a special defense rather
than as a challenge to the jurisdiction of the court.
In Grant v. Bassman, 221 Conn. 465, 470, 473, 604
A.2d 814 (1992), our Supreme Court held that the defen-
dants’ claim that the plaintiffs had made an exclusive
election of workers’ compensation pursuant to General
Statutes § 31-284 (a)9 was not raised properly by a
motion to dismiss challenging the court’s subject matter
jurisdiction and should have been raised by a special
defense. In that case, a minor employee was injured
at work and applied for and began receiving workers’
compensation benefits for his injuries. Id., 468. There-
after, the plaintiffs, the injured employee and his
mother, filed a personal injury action against the defen-
dant employer and its president, seeking damages for
injuries sustained by the employee. Id., 466. The defen-
dant employer moved to dismiss the plaintiffs’ com-
plaint, arguing that the trial court lacked subject matter
jurisdiction because the employee had applied for and
received workers’ compensation benefits for those
injuries. Id. The court explained that ‘‘[t]he purpose of
a special defense is to plead facts that are consistent
with the allegations of the complaint but demonstrate,
nonetheless, that the plaintiff has no cause of action.
. . . The claim that a plaintiff has elected an exclusive
remedy relies on facts outside those alleged in the com-
plaint that operate to negate what may once have been
a valid cause of action. . . . It is therefore both rational
and fair to place the burden of pleading and proving
an election of remedies on the party asserting the claim,
usually the defendant.’’ (Citations omitted.) Id., 472–73.
The court concluded that a special defense, and not a
motion to dismiss, was the proper procedural mecha-
nism for the defendant employer’s challenge to the
plaintiffs’ complaint. Id., 473.
In making its determination, our Supreme Court in
Grant v. Bassman, supra, 221 Conn. 471–72, adopted
the reasoning of the court in Fusaro v. Chase Brass &
Copper Co., 21 Conn. Supp. 240, 242–44, 154 A.2d 138(1956), in which the court discussed the appropriate
procedural mechanism for raising a claim that a plaintiff
has made an exclusive election of workers’ compensa-
tion. The court in Fusaro stated that the exclusivity
provision ‘‘is not at all a denial of jurisdiction in the
Superior Court, as such, but is basically a destruction
of an otherwise existent common-law right of action.
. . . The confusion, if there be any, arises from the fact
that the compensation procedure which is substituted
for the common-law right of action involves a special
tribunal, rather than the Superior Court. However, this
is a mere incident of the destruction of the common-
law right of action. In other words, there is not a lack
of jurisdiction in the court but a want of a cause of
action in the plaintiff.’’ Id., 243.
In Commissioner of Mental Health & Addiction Ser-
vices v. Saeedi, 143 Conn. App. 839, 71 A.3d 619 (2013),
the defendant filed a whistleblower retaliation com-
plaint with the office of public hearings in which he
alleged that he had been subjected to retaliation for
making a whistleblower disclosure pursuant to § 4-
61dd. Id., 845. The plaintiffs filed an answer in which
they pleaded one special defense asserting that the
office of public hearings lacked subject matter jurisdic-
tion because the defendant had failed to satisfy the
prerequisites for protection under § 4-61dd. Id. The
plaintiffs also filed a motion to dismiss in which they
alleged, inter alia, that the office of public hearings
did not have subject matter jurisdiction because the
defendant had filed grievances through his union and,
therefore, had elected to pursue his remedies though
his collective bargaining agreement. Id., 846. After the
referee found in favor of the defendant, the plaintiffs
appealed to the Superior Court and again argued, inter
alia, that the office of public hearings lacked subject
matter jurisdiction. Id., 855. The Superior Court upheld
the decision of the referee. Id. On appeal to this court,
the plaintiffs presented ‘‘the argument that [the defen-
dant’s] use of the grievance process served to invalidate
[the defendant’s] claims because he chose to pursue
them through the forum provided by the collective bar-
gaining agreement. The plaintiffs no longer claim[ed]
that this deprive[d] the referee of jurisdiction to decide
the matter. They claim[ed] that [the defendant’s] claims
should have been dismissed because § 4-61dd requires
the employee to elect an exclusive forum in which to
pursue these claims, and [the defendant] elected his
exclusive forum when his union filed its grievances.’’
(Footnote omitted; internal quotation marks omitted.)
Id., 855–56. This court declined to review the plaintiffs’
claim because it was raised for the first time on appeal.
Id., 857. The court stated, however, that ‘‘[t]he plaintiffs’
abandonment of their jurisdictional argument is unsur-
prising considering our Supreme Court’s holding in
Grant v. Bassman [supra, 221 Conn. 472].’’ Commis-
sioner of Mental Health & Addiction Services v. Saeedi,
supra, 143 Conn. App. 856 n.16.
In the present case, the statute at issue, § 4-61dd,
provides two procedures to challenge an alleged retalia-
tory personnel action. First, an employee may ‘‘file a
complaint . . . with the Chief Human Rights Referee
. . . . The decision of a human rights referee under
this subsection may be appealed by any person who
was a party at such hearing, in accordance with the
provisions of section 4-183.’’ General Statutes § 4-61dd
(e) (2) (A). Second, ‘‘[a]s an alternative to the provisions
of subdivision (2) of this subsection: (A) A state or
quasi-public agency employee who alleges that a per-
sonnel action has been threatened or taken may file an
appeal . . . with the Employees’ Review Board under
section 5-202, or, in the case of a state or quasi-public
agency employee covered by a collective bargaining
contract, in accordance with the procedure provided by
such contract . . . .’’ General Statutes § 4-61dd (e) (3).
There is no dispute that § 4-61dd contains a waiver
of sovereign immunity and confers on the office of
public hearings the authority to adjudicate the type
of controversy presented in this case: a whistleblower
retaliation claim. The fact that the statute also provides
for an ‘‘alternative’’ avenue for a complainant to seek
redress for adverse personnel actions taken in retalia-
tion for a whistleblower disclosure; General Statutes
§ 4-61dd (e) (3); does not deprive the office of public
hearings of subject matter jurisdiction to the claim.
Although the language used in § 4-61dd differs from
that used in § 31-284 and discussed in Grant v. Bass-
man, supra, 221 Conn. 471–73, in both circumstances,
the issue that arises is one regarding the election of
remedies. When a complainant elects to pursue one of
the avenues provided for in § 4-61dd and then subse-
quently proceeds to pursue the second avenue, the issue
concerns the complainant’s election of remedies, not
subject matter jurisdiction. Estrada’s complaint to the
office of public hearings, even if it is pursued after
the initial grievance process, does not create a lack of
subject matter jurisdiction. Instead, it may result in ‘‘ ‘a
want of a cause of action’ ’’; (emphasis omitted) id.,
472; which the department may challenge in a special
defense. See id., 471. Accordingly, we conclude that the
office of public hearings had subject matter jurisdiction
to adjudicate Estrada’s whistleblower retaliation claim.
II
We next address the commission’s contention that
the court erred when it concluded that Estrada did not
make a protected whistleblower disclosure pursuant
to § 4-61dd. The commission asserts, specifically, that
Estrada’s disclosure ‘‘fits within three of the enumer-
ated categories [in § 4-61dd]: a violation of law, misman-
agement, and a danger to public safety.’’ We conclude
that Estrada did not disclose a violation of law and,
therefore, did not make a protected whistleblower dis-
closure pursuant to § 4-61dd.10
The following additional facts and procedural history
are relevant to our resolution of this claim. In her deci-
sion, the referee stated that § 4-61dd ‘‘ ‘is a remedial
statute and is to be interpreted broadly to effectuate [its]
purpose.’ . . . By using such broadly defined words
as ‘abuse’ and ‘mismanagement,’ the legislature
intended to protect employees who disclose a wide
array of transgressions under . . . § 4-61dd.’’ (Citation
omitted.) In concluding that Estrada had made a pro-
tected disclosure under § 4-61dd, the referee stated that
Estrada ‘‘reported a violation of . . . § 19a-200, which
required a city health director possesses the required
degrees. General Statutes § 19a-2a11 confers broad pow-
ers to the [department] to administer all laws under the
jurisdiction of the [department], which includes over-
sight of compliance with . . . § 19a-200. The OLHA is
charged with reviewing resumes to determine if the
schools attended by the applicant were properly accred-
ited; the OLHA is part of the [department]. This is clearly
reporting a violation of law under the jurisdiction of
the agency; and falls squarely within a qualifying disclo-
sure.’’ (Footnote added; footnotes omitted.)
On appeal, the court disagreed with the conclusions
of the referee. It concluded, inter alia, that Estrada’s
disclosure to Blaschinski was not a whistleblower dis-
closure under § 4-61dd. The court stated that ‘‘the dis-
closure does not reveal corruption, unethical practices,
violations of state law or regulations, mismanagement,
gross waste of funds, abuse of authority or danger to
public safety occurring in any state department or
agency or quasi-public agency as required by [the stat-
ute].’’ (Internal quotation marks omitted.) The court
further stated that the letter from the department
approving the city of Hartford’s appointment of Wang
as acting director was merely a mistake, as a result of
Wang’s misrepresentation and Estrada’s failure to verify
Wang’s qualifications. The court determined that there
was ‘‘no evidence that the commissioner, Blaschinski,
[Estrada], or any other personnel at [the department]
knew that the letter was mistaken at the time it was
sent. . . . [S]ending the letter did not violate any law,
nor did it represent corruption or unethical practices
on the part of [the department] or the commissioner.
. . . Further, the commissioner and [the department]
promptly addressed the mistake when they discov-
ered it.’’
The court then analyzed the relevant statutes to deter-
mine if a violation of law had occurred. ‘‘It is true that
. . . § 19a-200 specifies the required qualifications of a
city director of health. It is also true that . . . § 19a-
2a confers broad authority upon the commissioner to
administer public health laws, which includes oversight
of compliance with § 19a-200. The disclosure, however,
as here, that an acting city health director was unknow-
ingly, mistakenly appointed and approved does not cre-
ate a violation of law, corruption, or unethical practice
at the [department] or by the commissioner [of the
department]. . . .
‘‘Two important points clearly arise from [§ 19a-200].
First, and most importantly, the commissioner [of the
department] had the absolute power to approve persons
for acting directors of health who he deems suitable.
It is undisputed that Wang was an acting director of
health. As such, the commissioner’s letter approving
Wang as an acting director of health broke no law. The
commissioner [of the department] had the ability to
deem Wang suitable and approve him. The specific [edu-
cational] qualifications for a permanent director of
health do not apply to an acting director of health.
Second, the obligation to appoint directors of health
that meet the applicable qualifications lies with the
appointing authority (i.e., the city), not the commis-
sioner [of the department]. As such, even if the commis-
sioner mistakenly approved a person without the neces-
sary qualifications, he broke no law, but merely made
a mistake.’’ (Emphasis in original; footnotes omitted;
internal quotation marks omitted.)
We first set forth our standard of review and the legal
principles relevant to our resolution of this claim. We
review the trial court’s judgment pursuant to the Uni-
form Administrative Procedure Act, General Statutes
§ 4-166 et seq. ‘‘[I]t is [not] the function . . . of this
court to retry the case or to substitute its judgment for
that of the administrative agency.’’ (Internal quotation
marks omitted.) Valliere v. Commissioner of Social
Services, 328 Conn. 294, 308, 178 A.3d 346 (2018).
‘‘Judicial review of an administrative agency decision
requires a court to determine whether there is substan-
tial evidence in the administrative record to support
the agency’s findings of basic fact and whether the
conclusions drawn from those facts are reasonable.
. . . An administrative finding is supported by substan-
tial evidence if the record affords a substantial basis
of fact from which the fact in issue can be reasonably
inferred. . . . The substantial evidence rule imposes
an important limitation on the power of the courts to
overturn a decision of an administrative agency . . .
and . . . provide[s] a more restrictive standard of
review than standards embodying review of weight of
the evidence or clearly erroneous action. . . . [A]s to
questions of law, [t]he court’s ultimate duty is only to
decide whether, in light of the evidence, the [agency]
has acted unreasonably, arbitrarily, illegally, or in abuse
of its discretion. . . . Conclusions of law reached by
the administrative agency must stand if the court deter-
mines that they resulted from a correct application of
the law to the facts found and could reasonably and
logically follow from such facts.’’ (Citation omitted;
internal quotation marks omitted.) Blinkoff v. Commis-
sion on Human Rights & Opportunities, 129 Conn.
App. 714, 720–21, 20 A.3d 1272, cert. denied, 302 Conn.
922, 28 A.3d 341 (2011).
‘‘Cases that present pure questions of law, however,
invoke a broader standard of review than is . . .
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion. . . . Furthermore, when
a state agency’s determination of a question of law has
not previously been subject to judicial scrutiny . . .
the agency is not entitled to special deference. . . .
We have determined, therefore, that the traditional def-
erence accorded to an agency’s interpretation of a statu-
tory term is unwarranted when the construction of a
statute . . . has not previously been subjected to judi-
cial scrutiny [or to] . . . a governmental agency’s time-
tested interpretation . . . . Even if time-tested, we will
defer to an agency’s interpretation of a statute only if
it is reasonable; that reasonableness is determined by
[application of] our established rules of statutory con-
struction.’’ (Internal quotation marks omitted.) Valliere
v. Commissioner of Social Services, supra, 328 Conn.
308. In the present case, the parties do not claim that
the referee’s interpretation of the statute is time-tested
or has previously been subjected to judicial scrutiny.
The question before this court is whether Estrada’s
disclosure that the commissioner of the department
improperly designated Wang as acting director of health
for the city of Hartford constituted a protected disclo-
sure under § 4-61dd. Section § 4-61dd (a) provides in
relevant part: ‘‘Any person having knowledge of any
matter involving . . . corruption, unethical practices,
violation of state laws or regulations, mismanagement,
gross waste of funds, abuse of authority or danger to
the public safety occurring in any state department or
agency, [or] any quasi-public agency . . . may transmit
all facts and information in such person’s possession
concerning such matter to the Auditors of Public
Accounts. . . .’’ (Emphasis added.)
The statute further provides in relevant part: ‘‘No
state officer or employee . . . shall take or threaten
to take any personnel action against any state or quasi-
public agency employee . . . in retaliation for (A) such
employee’s . . . disclosure of information to (i) an
employee of the Auditors of Public Accounts . . . [or]
(ii) an employee of the state agency or quasi-public
agency where such officer or employee is employed
. . . .’’ General Statutes § 4-61dd (e) (1). The commis-
sion contends that Estrada’s reporting to Blaschinski
that Wang did not hold a master’s degree constituted
a disclosure of a violation of § 19a-200 and, therefore,
is a protected whistleblower disclosure under § 4-61dd.
Specifically, the commission argues that § 19a-200
requires all directors, whether permanent or acting,
either to be a licensed physician with a degree in public
health or to hold a graduate degree in public health and
that, regardless of the qualifications set forth in the
statute, Wang was not ‘‘ ‘suitable’ ’’ for the position of
acting director of health. Therefore, we must determine
whether Estrada’s disclosure constitutes a disclosure
of a ‘‘violation of state laws’’ as used in § 4-61dd. We
conclude that it does not.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . The test
to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) Chairperson, Connecticut Medical Examining
Board v. Freedom of Information Commission, 310
Conn. 276, 283, 77 A.3d 121 (2013). We iterate that,
because the referee’s interpretation of the statute ‘‘has
not been ‘subjected to judicial scrutiny or consistently
applied by the agency over a long period of time,’ our
review is de novo.’’ Id.; see also Valliere v. Commis-
sioner of Social Services, supra, 328 Conn. 309 (‘‘no
special deference is required because there is no claim
that the department’s construction of the applicable
statutes is time-tested, or has previously been subject
to judicial scrutiny’’).
The parties dispute whether § 19a-200 requires that
an acting director of health possess the qualifications
set forth in § 19a-200 (a) and, consequently, whether
Estrada’s report that Wang did not possess a master’s
degree in public health disclosed a violation of state
law and, thus, was a protected disclosure under § 4-
61dd. We conclude that the statutory qualifications set
forth in § 19a-200 do not apply to a person designated
to serve as an acting director of health. Estrada, there-
fore, did not disclose a violation of § 19a-200 and, conse-
quently, did not make a protected disclosure under
§ 4-61dd.
Section 19a-200 (a) provides in relevant part: ‘‘[A]ny
person nominated to be a director of health shall (1)
be a licensed physician and hold a degree in public
health . . . or (2) hold a graduate degree in public
health . . . .’’ General Statutes (Rev. to 2015) § 19a-200
(a). It further provides that, in the absence or inability
to act of a director of health or if a vacancy exists, the
appointing local authority, with approval of the commis-
sioner of the department, may ‘‘designate in writing a
suitable person to serve as acting director of health
. . . .’’ (Emphasis added.) General Statutes (Rev. to
2015) § 19a-200 (a). The statute makes a distinction
between qualifications required for a director of health,
who must either be a licensed physician and hold a
degree in public health or hold a graduate degree in
public health, and those for an acting director of health,
stating that an acting director of health need only be
suitable. See General Statutes (Rev. to 2015) § 19a-
200 (a).
In construing the statute, the commission’s argument
that the qualifications set forth in § 19a-200 (a) for a
director of public health also apply to an acting director
of public health is belied by the plain language of the
statute. When subsection (a) is read as a whole, it is
apparent that the legislature did not intend for the quali-
fications set forth in § 19a-200 (a) to apply to an acting
director of health. It is significant that the legislature
stated that a director of health must possess certain
educational qualifications but used the phrase ‘‘suitable
person’’ when discussing the designation of an acting
director of health. See Stone v. East Coast Swappers,
LLC, 337 Conn. 589, 602, 255 A.3d 851 (2020) (‘‘[t]he
use of the different terms . . . within the same statute
suggests that the legislature acted with complete aware-
ness of their different meanings . . . and that it
intended the terms to have different meanings’’ (internal
quotation marks omitted)). The legislature’s inclusion
of qualifications for those nominated as a director of
health, while stating that an individual designated for
acting director should be ‘‘suitable,’’ indicates its deci-
sion that the qualifications required for a director of
health not apply to an acting director of health. Because
our objective is to ascertain and give effect to the appar-
ent intent of the legislature, ‘‘we cannot accomplish a
result that is contrary to the intent of the legislature as
expressed in the [statute’s] plain language. . . . The
intent of the legislature, as [the] court has repeatedly
observed, is to be found not in what the legislature
meant to say, but in the meaning of what it did say.’’
(Footnote omitted; internal quotation marks omitted.)
Vincent v. New Haven, 285 Conn. 778, 792, 941 A.2d
932 (2008).
We conclude that no violation of § 19a-200 occurred,
and, therefore, it follows that Estrada did not disclose
a violation of law. We conclude that her report to
Blaschinski is not a protected disclosure under § 4-
61dd.12 Thus, we agree with the court that Estrada is
not entitled to protection under § 4-61dd on these facts
and circumstances.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Hereinafter, unless otherwise indicated, all references to § 19a-200 in
this opinion are to the 2015 revision of the statute.
2
General Statutes (Rev. to 2015) § 19a-200 (a) sets forth the process for
nominating a director of a municipal health department and provides in
relevant part: ‘‘The mayor of each city, the warden of each borough, and
the chief executive officer of each town shall . . . nominate some person
to be director of health for such city, town or borough . . . .’’
3
At the time of the hearing in front of the referee, Blaschinski held the
position of chief operating officer of the department. She supervised Estrada
beginning in 2011.
4
The letter, signed by the commissioner of the department, stated in
relevant part: ‘‘We have reviewed . . . Wang’s credentials and find them
appropriate for the position. Therefore, pursuant to Section 19a-200 of the
Connecticut General Statutes, you may appoint . . . Wang as the Acting/
Interim Director of Health for the City of Hartford . . . .’’
5
There are no facts in the record to indicate that Wang received a master’s
degree in public health from any other institution.
6
In order for Estrada to establish a prima facie case of whistleblower
retaliation, three elements must be shown: (1) Estrada must have engaged
in a protected activity as defined by the statute; (2) Estrada must have
incurred or been threatened with an adverse personnel action; and (3) there
must be a causal connection between the actual or threatened personnel
action and the protected activity. See General Statutes § 4-61dd; Kisala v.
Malecky, Superior Court, judicial district of New Britain, Docket No. CV-
XX-XXXXXXX-S (October 7, 2013) (56 Conn. L. Rptr. 902, 905); see generally
Commissioner of Mental Health & Addiction Services v. Saeedi, 143 Conn.
App. 839, 841–42 n.1, 71 A.3d 619 (2013); Eagen v. Commission on Human
Rights & Opportunities, 135 Conn. App. 563, 565–66 n.1, 42 A.3d 478 (2012).
7
Because we agree with the court that Estrada did not prove that she
was engaged in any protected whistleblower activity, we need not address
the commission’s remaining claims of whistleblower retaliation.
8
The remaining four special defenses are not relevant to this claim.
9
General Statutes § 31-284 (a) provides: ‘‘An employer who complies with
the requirements of subsection (b) of this section shall not be liable for any
action for damages on account of personal injury sustained by an employee
arising out of and in the course of his employment or on account of death
resulting from personal injury so sustained, but an employer shall secure
compensation for his employees as provided under this chapter, except that
compensation shall not be paid when the personal injury had been caused
by the wilful and serious misconduct of the injured employee or by his
intoxication. All rights and claims between an employer who complies with
the requirements of subsection (b) of this section and employees, or any
representatives or dependents of such employees, arising out of personal
injury or death sustained in the course of employment are abolished other
than rights and claims given by this chapter, provided nothing in this section
shall prohibit any employee from securing, by agreement with his employer,
additional compensation from his employer for the injury or from enforcing
any agreement for additional compensation.’’
10
The commission claims that Estrada’s disclosure to Blaschinski fits
within two other enumerated categories under § 4-61dd: mismanagement
and a danger to public safety. The commission raises these arguments,
however, for the first time on appeal. ‘‘We adhere to the well settled principle
that [t]his court will not review issues of law that are raised for the first
time on appeal. . . . We have repeatedly held that this court will not con-
sider claimed errors on the part of the trial court unless it appears on the
record that the question was distinctly raised at trial and was ruled upon and
decided by the court adversely to the appellant’s claim.’’ (Internal quotation
marks omitted.) Rosa v. Lawrence & Memorial Hospital, 145 Conn. App.
275, 309, 74 A.3d 534 (2013). ‘‘[A] party cannot present a case to the trial
court on one theory and then seek appellate relief on a different one . . . .’’
(Internal quotation marks omitted.) U.S. Bank National Assn. v. Eichten,
184 Conn. App. 727, 756, 196 A.3d 328 (2018). These arguments were neither
raised by the defendants at the administrative hearing or in the trial court
nor decided by the referee or the court. Therefore, we decline to review
the commission’s claims that Estrada’s report to Blaschinski was a disclosure
of mismanagement or a danger to public safety pursuant to § 4-61dd.
11
General Statutes § 19a-2a provides in relevant part: ‘‘The Commissioner
of [the department] shall employ the most efficient and practical means for
the prevention and suppression of disease and shall administer all laws
under the jurisdiction of the [department] and the Public Health Code. . . .’’
12
Moreover, this is not the type of disclosure intended to be protected
under § 4-61dd. The court concluded that the letter signed by the commis-
sioner of the department approving Wang as acting director of health was
prepared and executed without knowledge that the information in Wang’s
resume was incorrect and that Wang did not actually possess a master’s
degree in public health. Therefore, the approval was merely a mistake.
Furthermore, the court stated that Estrada ‘‘bore substantial responsibility
for the mistake’’ because she drafted the letter with an understanding of
the purpose of the letter and knowing that the letter would be signed by
the commissioner of the department. The court determined that, ‘‘[a]lthough
the letter was mistaken, sending the letter did not violate any law, nor did
it represent corruption or unethical practices on the part of [the department]
or the commissioner [of the department]. . . . Further, the commissioner
[of the department] and [the department] promptly addressed the mistake
when they discovered it.’’ We agree with the court’s analysis. Therefore,
even assuming, arguendo, that § 19a-200 (a) requires that an acting director
of health possess the qualifications that apply to permanent directors of
health, Estrada did not disclose a violation of law but merely disclosed the
fact that the department was mistaken in believing that Wang held a master’s
degree in public health, a mistake that was ‘‘induced by the false resume
of Wang . . . .’’ We conclude that a mistake such as this one is not the
type of disclosure the legislature intended to protect under the statute.