Kovachich v. Dept. of Mental Health and Addiction Services

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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).’’