Carmen I. PEREZ-DICKSON
v.
CITY OF BRIDGEPORT, et al.
Supreme Court of Connecticut.
*76 Steven D. Ecker, with whom was Gavan F. Meehan, Hartford, for the appellants-cross appellees (defendants).
Max F. Brunswick, New Haven, with whom were Valerie Adams Baker and Josephine Smalls Miller for the appellee-cross appellant (plaintiff).
Marc P. Mercier, Manchester, filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.
ROGERS, C.J.
The plaintiff, Carmen I. Perez-Dickson, brought this action claiming that the defendants, the board of education of the city of Bridgeport (board), Henry R. Kelly, the former assistant superintendent of the Bridgeport public schools (school district), and Daniel Shamas,[1] the former acting superintendent of the school district, disciplined her for exercising her rights guaranteed by the first amendment to the United States constitution[2] and article *77 first, §§ 3, 4 and 14, of the Connecticut constitution[3] in violation of General Statutes §§ 31-51q[4] and 17a-101e,[5] discriminated against her on the basis of her race in violation of 42 U.S.C. §§ 1981[6] and 1983,[7] and intentionally caused her severe emotional distress. The jury returned a verdict in favor of the plaintiff on all counts and awarded compensatory and punitive damages of $2,003,000, which the trial court subsequently reduced to $1,003,000. Thereafter, the trial court awarded attorney's fees and offer of judgment interest to the plaintiff and rendered judgment in accordance with the verdict. The defendants then appealed[8] claiming that the trial court improperly denied their motion for a directed verdict, to set aside the verdict, and for judgment notwithstanding the verdict on the grounds *78 that: (1) the defendants did not violate § 31-51q because any relevant speech by the plaintiff had been pursuant to her official job duties and such speech is not protected by the first amendment; (2) the plaintiff failed to prove her claim of racial discrimination pursuant to 42 U.S.C. §§ 1981 and 1983; and (3) the plaintiff failed to prove that the defendants had intentionally inflicted severe emotional distress on her. In addition, the defendants claim that the trial court lacked subject matter jurisdiction over the plaintiff's claim pursuant to § 17a-101e, improperly admitted certain newspaper articles as evidence at trial, and improperly calculated offer of judgment interest. The plaintiff filed a cross appeal claiming that the trial court improperly had reduced the damage award and improperly calculated offer of judgment interest. In addition, she contends that her claim pursuant to § 31-51q may be affirmed on the alternate ground that the defendants disciplined her for exercising her speech rights under article first, §§ 3, 4 and 14, of the state constitution, which protect an employee's speech pursuant to official job duties. We agree with the defendants' first three claims and with their claim that the trial court lacked jurisdiction over the plaintiff's claim pursuant to § 17a-101e. We also conclude that the plaintiff's alternate ground for affirmance was not preserved for review. Accordingly, we reverse the judgment of the trial court and direct judgment for the defendants.[9]
The jury reasonably could have found the following facts. In 1998, the plaintiff, who is of African-American and Puerto Rican descent, was appointed as the principal of Beardsley School in the school district. In December of that year, she noticed that a white male teacher, V.L., was repeatedly mistreating a sixth grade student. At one point, the student came to the plaintiff and showed her his hand, which was red and swollen. The student told her that V.L. had followed him as he entered the lavatory and had squeezed his hand around the doorknob so hard that he caused the injury. The plaintiff took the student to the school nurse and instructed her to report the injury to the department of children and families (department). The plaintiff also telephoned Kelly and told him what had happened. In addition, she sent a memorandum to Kelly about the incident. V.L. was placed on paid administrative leave several months after the incident.
In January, 1999, Kelly asked all of the school district principals, including the plaintiff, to come individually to his office to discuss what they had achieved during the first half of the school year. During his meeting with the plaintiff, Kelly stated that he was concerned about the climate at Beardsley School and that the plaintiff's career was in jeopardy.[10] The plaintiff "got choked up" and was frightened. Kelly also told the plaintiff at one point that she should not "make waves" at the school and that, if she intended to walk around the school and visit classrooms, she should carry keys in her pocket and jingle them so that the teachers could hear her coming and "behave."
*79 In April, 1999, a parent of a student at Beardsley School told the plaintiff that a teacher, T.B., had thrown the student against the wall and physically and verbally abused him. The plaintiff reported the abuse to the department and to Kelly. Kelly came to the plaintiff's office and interviewed the student about the incident. After reviewing the student's school record, Kelly observed that the student had moved frequently and told the student that he seemed to be a problem. The plaintiff told Kelly that the student was the victim and the fact that he moved around a lot did not justify the abuse. Kelly then gave the plaintiff "a look" and raised his eyebrows. T.B. ultimately was placed on paid administrative leave for six weeks.
At the end of the 1998-1999 school year, Kelly prepared a written evaluation of the plaintiff's performance in which he directed the plaintiff to "adjust her managerial style, as necessary, to better ensure effective communication, collaboration and mutual high expectations of students and staff alike" and to "improve in her efforts to identify, address, and (where possible) resolve staff issues, to improve staff morale." The plaintiff wrote on the appraisal form that test scores and student attendance had improved during the course of the year.
In December, 1999, the plaintiff was quoted in a newspaper article as saying that, as a parent and a child advocate, she did not agree with the discipline that V.L. and T.B. had received, and thought that it should have been more aggressive. Shortly thereafter, she received a letter from attorneys for the board requesting that she come to a meeting to discuss whether she had revealed confidential information to the newspaper. The plaintiff told the attorneys at the meeting that the newspaper had misquoted her and that she did not know what the outcome of the abuse cases had been.
At the end of the 1999-2000 school year, Shamas transferred the plaintiff to Newfield School in the school district. Kelly told the plaintiff that she was being transferred because too many teachers were transferring away from Beardsley School. The plaintiff viewed the transfer as a demotion because Newfield School, which had fewer than 300 students, was much smaller than Beardsley School, which had approximately 750 students, and she would be paid $1000 less per year. In 2003, the plaintiff was transferred to Roosevelt School in the school district, which had approximately 900 students.
In 2000, the plaintiff filed a complaint alleging, inter alia, that, from 1998 through 2000, Kelly, joined by Shamas, had engaged in "a campaign of harassment, discrimination and retaliation directed against [her] in response for her cooperation with [the department] and its investigation of the assaults" by V.L. and T.B. and that because, in reporting the alleged assaults to the department, she had "exercised her rights guaranteed by the first amendment to the United States constitution and/or [§§] 3, 4, and 14 of article first of the constitution of the state of Connecticut," the defendants' alleged conduct had violated §§ 31-51q and 17a-101e. In addition, she claimed that the defendants' conduct had been motivated by race in violation of 42 U.S.C. § 1981 and that it had constituted intentional and negligent infliction of emotional distress.
On November 17, 2005, Teresa Carroll, a school board administrator, telephoned the plaintiff and asked her to come to a meeting the next morning. Because Carroll refused to tell the plaintiff what the meeting was about, the plaintiff called John Ramos, the superintendent of the school *80 district.[11] Ramos told the plaintiff that he knew the purpose of the meeting, but that he would not discuss it with her at that time. Carroll informed the plaintiff at the meeting that she had been accused of abusing a student, that she was being placed on paid administrative leave immediately and that she would not be allowed to return to work. The plaintiff became very upset and asked who she had been accused of abusing and the details of the accusation. Carroll refused to answer her questions.
Ramos made the decision to place the plaintiff on administrative leave. He testified at trial that he had become superintendent in June, 2005, that he was not aware of the plaintiff's history in the school system and that his decision was based solely on the gravity of the allegations against her and the fact that the accusation had been made by an adult staff member.
The plaintiff ultimately discovered from reading the newspaper that she had been accused of sexually abusing a male student. The fact that she had been accused of student abuse was reported in a number of newspaper articles. The plaintiff also eventually learned that Deborah Santacapita, an assistant principal at Roosevelt School, had reported to Carroll that she had observed the plaintiff hugging a fourteen year old boy while cupping his buttocks in her hands, "nuzzling" his neck and telling him that he smelled good. The department, which had been notified about the allegations of abuse against the plaintiff and had conducted an investigation, ultimately determined that the allegations were unsubstantiated, and the plaintiff returned to work in January, 2006.[12]
In 2007, the plaintiff filed a fifth revised complaint in which she repeated the previous allegation that she had been subjected to a campaign of harassment in retaliation for the exercise of her constitutional speech rights from 1998 through 2000 in violation of §§ 31-51q and 17a-101e,[13] and added a claim that the defendants' response to the abuse accusation against her in 2005 had violated those statutes. In addition, as in her original complaint, she alleged that the defendants had discriminated against her on the basis of her race in violation of 42 U.S.C. §§ 1981 *81 and 1983 and had intentionally inflicted severe emotional distress on her.
After the plaintiff rested her case at trial, the defendants made an oral motion for a directed verdict in their favor. They argued that, under Garcetti v. Ceballos,
The jury returned a verdict for the plaintiff and awarded $3000 in economic damages; $250,000 in noneconomic damages and $250,000 in punitive damages on the claim pursuant to §§ 31-51q and 17a-101e; *82 $250,000 in noneconomic damages and $250,000 in punitive damages on the claim pursuant to 42 U.S.C. §§ 1981 and 1983; and $500,000 in noneconomic damages and $500,000 in punitive damages on the claim of intentional infliction of emotional distress. Thus, the total damage award was $2,003,000.
After trial, the defendants filed a renewed motion for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict (motion for a directed verdict) and, in the alternative, for remittitur. In support of this motion, they again argued that, under Garcetti, "the [f]irst [a]mendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities." Garcetti v. Ceballos, supra,
In her opposition to the defendants' motion, the plaintiff argued that Garcetti did not apply to claims pursuant to § 17a-101e. She further argued that, "in the absence of any clear direction from Connecticut appellate courts that employees such as [the plaintiff] cannot be protected from retaliation for making reports of child abuse, this court may not state as a matter of law that [the plaintiff's] claim under § 31-51q must fail." Without mentioning Garcetti, the trial court denied the defendants' motion for a directed verdict.[16]
The court granted the motion for remittitur in part, however, and eliminated the awards of $500,000 for noneconomic damages on the intentional infliction of emotional distress claim and reduced the punitive award for that claim from $500,000 to attorney's fees and nontaxable costs, resulting in a damages award of $1,003,000. Thereafter, the court awarded the plaintiff attorney's fees of $250,000 and offer of judgment interest in the amount of $596,878 and rendered judgment in accordance with the verdict. This appeal and cross appeal followed.[17]
I
We first address the defendants' claims related to the verdict in favor of the plaintiff on her claims pursuant to §§ 31-51q and 17a-101e.[18]
A
We begin with the defendants' claim that the trial court improperly concluded *83 that the plaintiff's claim that the defendants had disciplined her for exercising her first amendment rights in violation of § 31-51q is not barred by Garcetti v. Ceballos, supra,
With respect to the plaintiff's claim that the judgment can be affirmed on the *84 alternate ground that the defendants violated § 31-51q because they disciplined her for exercising her speech rights under the state constitution, which are broader than her rights under the first amendment, we conclude that this claim was not preserved for review because she never made that claim to the trial court. Accordingly, the trial court and the defendants were entitled to assume that her speech rights under the state constitution were coextensive with her first amendment rights. See State v. Gore,
This court previously has held that "[o]nly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.... This rule applies equally to alternate grounds for affirmance." (Citation omitted; internal quotation marks omitted.) New Haven v. Bonner,
We perceive no such exceptional circumstances in the present case. The plaintiff had ample opportunity at trial to raise the claim that Garcetti does not bar her claim pursuant to § 31-51q because the state constitution provides broader protection than the federal constitution, the trial court had the authority to rule on the issue, there has been no intervening change in the law, the plaintiff's claim is not of constitutional magnitude,[24] and the plaintiff received a fair trial.
Moreover, even if we were to assume that a lack of prejudice to an appellant would justify review of an alternate ground for affirmance that was not raised in the trial court, even in the absence of other exceptional circumstances, the plaintiff in the present case has not established that the defendants would not be prejudiced if we were to review this claim.[25]*86 First, even if we assume that the trial court's denial of the defendants' motion for a directed verdict and instructions to the jury were proper under the state constitution, because the defendants believed rightlythat the plaintiff's claims under the first amendment are barred by Garcetti, and they properly presumed that the state constitution provides no broader protection, the defendants may have made the tactical decision to avoid the expense and inconvenience of calling a large number of witnesses to testify in support of other potential defenses to the plaintiff's claims. The defendants should not be punished for their failure to present all possible evidence at the first trial when they had every reason to believe that, even if they presented no evidence, the plaintiff's claim was barred by Garcetti. Accordingly, if we were to conclude that Garcetti does not bar the plaintiff's claim under the state constitution, we would be required to afford the defendants an opportunity to present additional evidence under the new standard. See Oram v. Capone, 206 App. Div.2d 839, 840,
Second, the plaintiff's alternate ground for affirmance raises a question of first impression for this court, and it is not at all clear that a conclusion that Garcetti does not apply to claims pursuant to the state constitution would require this court to conclude that the trial court instructed the jury as to the proper legal standard. We note, for example, that before its decision in Garcetti, the United States Supreme Court had held that speech by a public employee was protected by the first amendment only if the speech was on a matter of public concern and the employee's free speech interest was not outweighed by the employer's interest "in promoting the efficiency of the public services it performs through its employees." (Internal quotation marks omitted.) Connick v. Myers,
*88 Third, affirming the damage award for the plaintiff's claim pursuant to § 31-51q would prejudice the defendants because the plaintiff's failure to raise the state constitutional issue in a timely manner deprived them of the opportunity to evaluate and possibly to settle the claim before the jury returned its verdict.[27] Accordingly, we conclude that the claim is unreviewable. We conclude, therefore, that the trial court improperly denied the defendants' motion for a directed verdict in their favor on the plaintiff's claim pursuant to § 31-51q, and that the judgment for the plaintiff may not be affirmed on the alternate ground that the plaintiff's speech was protected by the state constitution.
B
We next address the defendants' claim that the trial court lacked subject matter jurisdiction over the plaintiff's claim pursuant to § 17a-101e because that statute does not create a private cause of action. The plaintiff contends that the defendants' failure to raise this claim at trial renders it unreviewable on appeal. We conclude that the defendants' claim is reviewable and that the trial court lacked subject matter jurisdiction over the plaintiff's claim.
We first address the plaintiff's claim that the defendants' claim is unreviewable. The claim that § 17a-101e does not provide a private cause of action implicates the plaintiff's standing to raise a claim pursuant to that statute. See Burton v. Dominion Nuclear Connecticut, Inc.,
Turning to the merits of the claim that § 17a-101e does not provide a private cause of action, "[w]e begin our analysis with the well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the statute.... In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose ... benefit the statute was enacted... ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ...
"Consistent with the dictates of [General Statutes] § 1-2z, however, we do not go beyond the text of the statute and its relationship to other statutes unless there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action. Textual evidence that would give rise to such a question could include, for example, language granting rights to a discrete class without providing an express remedy or language providing a specific remedy to a class without expressly delineating the contours of the right." (Citations omitted; internal quotation marks omitted.) Gerardi v. Bridgeport,
Whether § 17a-101e provides a private cause of action is a question of statutory interpretation over which our review is plenary. See id., at 467,
Section 17a-101e provides in relevant part: "(a) No employer shall discharge, or in any manner discriminate or retaliate against, any employee who in good faith makes a report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103, testifies or is about to testify in any proceeding involving child abuse or neglect. The Attorney General may bring an action in Superior Court against an employer who violates this subsection...."
Both the contours of the right created by § 17a-101e and the specific remedy for a violation of the right are plain and unambiguous. Nothing in the text of the statute even remotely suggests that, contrary to this plain and unambiguous language, the legislature intended to authorize private citizens to bring actions on their own behalf pursuant to the statute. Indeed, the plaintiff does not contend otherwise. *90 Rather, she claims only that the defendants' claim that § 17a-101e does not create a private cause of action is unreviewable, a claim that we have rejected. Accordingly, we conclude that § 17a-101e does not provide a private cause of action and that the trial court therefore lacked subject matter jurisdiction over the plaintiff's claim pursuant to that statute.
II
We next address the defendants' claim that the plaintiff failed to establish a prima facie case that they had discriminated against her on the basis of her race in violation of 42 U.S.C. §§ 1981 and 1983 or, in the alternative, that she failed to prove racial discrimination by a preponderance of the evidence.[28] We conclude that the plaintiff failed to prove her case.
The following additional facts that the jury reasonably could have found are relevant to our resolution of this claim.[29] The board had a written policy concerning child abuse that required all allegations of abuse to be reported to the board's director of social work who, together with the principal of the school where the abuse had occurred, or the principal's designee, would then "decide how to conduct [an]... internal investigation...." At trial, the plaintiff presented documentary evidence that, when a teacher or administrator was accused of abusing a student, the board had a regular practice of interviewing the person who had been accused before taking any action against the employee.[30] In addition, the plaintiff testified that, while she was the principal at Beardsley School, a white female teacher had been accused of physically abusing a student. Susan Smith, the board's director of social work, had asked the plaintiff whether the accusation was "in the realm of possibility...." When the plaintiff *91 said that it was not, there was no further action against the teacher. In another case, a white female teacher had been accused of "hurting" a student while the plaintiff was the principal of Roosevelt School, and the plaintiff had interviewed the teacher as part of her investigation.[31] The teacher was not placed on administrative leave.
Kelly testified on cross-examination that, when a white male principal, L.R., had been accused by a parent of physically abusing a student, the board had conducted a thorough investigation, including interviewing a teacher, attempting to interview L.R., and requesting that the school social worker prepare a written summary of interviews by the department. The incident occurred in 1998. Kelly also testified that, in a case in which an elementary school had been accused of physically neglecting a student, the white female principal of the school, A.E., had been provided with an opportunity to respond to the accusation. The incident occurred in 2000.
Smith testified that in 2003 or 2004, the board stopped its practice of conducting extensive investigations of abuse allegations against school district employees in cases where the department was also conducting an investigation. She stopped the practice because it was her understanding that the department was concerned that investigations by the board could taint witnesses and interfere with the department's investigations. Carroll testified, however, that, after the plaintiff was placed immediately on administrative leave in the fall of 2005, as the result of the allegation that she had abused a student, Carroll investigated a number of claims that school administrators had abused students and interviewed the alleged perpetrator as part of the investigation. In one case, Carroll interviewed a male African-American principal about an alleged incident of physical abuse that had occurred on October 13, 2006.[32] In another case involving the plaintiff herself, Carroll interviewed the plaintiff about a parent's allegation that she had abused a student on February 15, 2008. No one from the board ever interviewed the plaintiff or the student she had been accused of abusing concerning the allegations of abuse that led to her administrative leave in 2005.
Ramos testified that, during the fall of 2005, he became aware of pending allegations that a white male principal in the school district, A.C., had engaged in sexual harassment. He further testified that, when the board became aware of allegations that A.C. had abused students, it placed him on administrative leave without first investigating the allegations or interviewing him.[33] Kelly testified that an *92 African-American female principal, S.A., who had been accused of physically abusing a student in 2001, was given an opportunity to respond to the accusation and was not placed on administrative leave until the board received reports of additional abuse. Kelly also testified that a male African-American principal, J.A., who had been accused of physically abusing a student on April 27, 2006, was provided with specific information about the allegations against him and was given an opportunity to respond.
At the conclusion of the plaintiff's case, the defendants made an oral motion for a directed verdict on the plaintiff's claim pursuant to 42 U.S.C. §§ 1981 and 1983 on the ground, inter alia, that the evidence would not support a finding of racial discrimination. The trial court reserved its decision on the motion until the conclusion of trial. The defendants renewed their claim in their posttrial motion for a directed verdict. The trial court denied that motion.
With this background in mind, we first set forth our standard of review. "The standards for appellate review of a directed verdict are well settled. Directed verdicts are not favored.... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion.... In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff.... Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.... A directed verdict is justified if ... the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party." (Internal quotation marks omitted.) Coughlin v. Anderson,
We next turn to the law governing claims of racial discrimination in violation of 42 U.S.C. §§ 1981 and 1983. To prevail on her claim pursuant to 42 U.S.C. § 1983, the plaintiff must establish that the defendants intentionally discriminated against her. Bennett v. Roberts,
"The burden of establishing a prima facie case [of discrimination] is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder.... The level of proof required to establish a prima facie case is minimal and need not reach *93 the level required to support a jury verdict in the plaintiff's favor." (Citation omitted.) Craine v. Trinity College, supra,
"Upon the defendant's articulation of ... a non-discriminatory reason for the employment action, the presumption of discrimination arising with the establishment of the prima facie case drops from the picture. See [St. Mary's Honor Center v. Hicks,
When the employer has rebutted the presumption of discrimination arising from the plaintiff's prima facie case by providing reasons for the disparate treatment, "[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to [satisfy the plaintiff's ultimate burden of proving] intentional discrimination." (Emphasis added.) St. Mary's Honor Center v. Hicks, supra,
In summary, when a plaintiff attempts to establish racial discrimination through the use of circumstantial evidence, the plaintiff must first present some evidence from which an inference may be drawn that other similarly situated individuals not in the protected class were treated more favorably than the plaintiff. See Craine v. Trinity College, supra,
This court previously has recognized that "[s]tatistical evidence in a disparate treatment case, in and of itself, rarely suffices to rebut an employer's legitimate, nondiscriminatory rationale for its [adverse employment] decision.... This is because a[n] [employer's] overall *95 employment statistics will, in at least many cases, have little direct bearing on the specific intentions of the employer.... Without an indication of a connection between the statistics, the practices of the employer, and the employee's case, statistics alone are likely to be inadequate to show that the employer's decision ... was impermissibly based on [a protected trait]."[35] (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, *96 supra,
With these principles in mind, we turn to the defendants' claim in the present case that the plaintiff failed to establish that they had discriminated against her on the basis of her race. The plaintiff contends that the evidence established that the defendants had treated her differently than other similarly situated school district employees. Specifically, she claims that, unlike six white employees who were accused of abusing students,[37] she was not given specific information about the allegations against her or provided with an opportunity to respond to the allegations before *97 she was placed on administrative leave.
The defendants contend that, to the contrary, because the other employees who had been accused of abusing students were not similar to the plaintiff in all material respects, the plaintiff has not established a prima facie case that the defendants discriminated against her on the basis of her race. Specifically, they point out that the plaintiff was a principal; she was accused of sexually abusing a young student; she was accused by her assistant, who was a trained mandated reporter; and she was disciplined by Ramos. In contrast, V.L. and T.B. were teachers, and they, along with L.R., had been accused of physical and verbal abuse, not sexual abuse; they had been accused six years earlier than the plaintiff; they had not been disciplined by Ramos;[38] and the initial accusations against them had not been made by a trained mandated reporter, but by students and, in the case of T.B., a student and a parent. With respect to the two white teachers who the plaintiff had been involved in investigating, and the principal, A.E., the defendants contend that the plaintiff failed to present sufficient information about them to provide a meaningful comparison. The defendants further claim that A.C. was the only individual who was similarly situated to the plaintiff because he was a principal, he had been accused of sexual abuse, he had been disciplined by Ramos, and he was treated the same as the plaintiff.[39] In addition, the defendants claim that, even if the plaintiff established a prima facie case that she had been treated differently than other similarly situated employees, the facts that a mandated reporter had accused the plaintiff and that the allegations of sexual abuse against her were more serious than those against the other employees justified their treatment of her. Finally, the defendants claim that the plaintiff's concession that "similarly situated non-black employees [were] treated in the same manner as [the] plaintiff and other black employees were treated more favorably" is fatal to her claim of intentional discrimination.
We conclude that we need not decide whether the plaintiff was similarly situated to the employees to whom she compares herself because, even if we assume that she was, she has not satisfied her ultimate burden of proof.[40] Specifically, we must conclude that the plaintiff's *98 circumstantial evidence that the defendants treated seven white employees[41] and four African-American employees[42] more favorably than they treated her when she was accused of abusing a student in 2005 is insufficient as a matter of law to raise an inference of intentional racial discrimination. Although "evidence establishing the falsity of the legitimate, nondiscriminatory reasons advanced by the employer may be, in and of itself, enough to support the trier of fact's ultimate finding of intentional discrimination" when the evidence of falsity is strong; (emphasis added) Board of Education v. Commission on Human Rights & Opportunities, supra,
*100 III
Finally, we address the defendants' claim that the trial court improperly denied their motion for a directed verdict with respect to the plaintiff's claim of intentional infliction of severe emotional distress. We agree.
The following procedural history is relevant to our resolution of this claim. At the conclusion of the plaintiff's case, the defendants made an oral motion for a directed verdict on the plaintiff's claim of intentional infliction of emotional distress on the ground that no reasonable person could conclude that the defendants' conduct was sufficiently extreme and outrageous to meet the relevant legal standard. The trial court reserved its decision on the motion until the conclusion of trial. The defendants renewed their claim in their posttrial motion for a directed verdict. The trial court denied that motion.
We begin our analysis with the standard of review. "In order for the plaintiff to prevail in a case for liability ... [alleging intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.... Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine.... *101 Only where reasonable minds disagree does it become an issue for the jury....
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society.... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! ... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education,
We conclude that no reasonable juror could find that the defendants' conduct in the present case met this high threshold. With respect to the defendants' conduct in 1998 and 1999, when Kelly told the plaintiff that her career was in jeopardy during a performance evaluation and Shamas transferred the plaintiff to Newfield School, no juror could conclude that the conduct was "beyond all possible bounds of decency ... atrocious, and utterly intolerable in a civilized community." (Internal quotation marks omitted.) Id., at 211,
With respect to the defendants' conduct in 2005, when they placed her on paid administrative leave without first providing her with an opportunity to respond to the abuse allegations, the plaintiff contends that the jury reasonably could have found that, "[b]ecause neither the plaintiff nor the alleged victim was questioned by the defendants and [the department] found no truth to the allegations, the jury could have and reasonably did conclude that the entire matter was intentionally fabricated and that the defendants were the perpetrators." (Emphasis in original.) The plaintiff made no claim and presented no evidence at trial, however, that Santacapita had fabricated the allegations against her or that the defendants had to have known immediately that the allegations were either false or grossly exaggerated. See Tracy v. New Milford Public Schools, supra,
Moreover, Ramos, who made the decision to place the plaintiff on administrative leave, testified that he was not aware of the plaintiff's history in the school system and, therefore, had no motive to retaliate against her. There was no contrary evidence that Ramos harbored personal animus toward the plaintiff. Even if we were to assume that Ramos made an error in judgment as to the truth or seriousness of the allegations, or in the manner in which he responded to them, and that the plaintiff was subject to extreme embarrassment as the result of his conduct, as a matter of law, mere errors in judgment do not rise to the level of extreme and outrageous conduct. See Appleton v. Board of Education, supra,
*103 The judgment is reversed and the case is remanded with direction to grant the defendants' motion for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict, and to render judgment thereon for the defendants.
In this opinion NORCOTT, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js., concurred.
PALMER, J., concurring.
I join parts I B, II and III of the majority opinion. I also join that portion of part I A of the majority opinion in which the majority concludes that Garcetti v. Ceballos,
I
The majority concludes that the plaintiff's unpreserved alternative ground for affirmance under § 31-51q may not be *104 brought under Golding because the plaintiff "has not raised a claim that the defendants violated her constitutional rights" but, instead, "has raised a claim implicating her statutory rights under § 31-51q."[2] Footnote 23 of the majority opinion. The majority's conclusion represents a classic example of elevation of form over substance. As this court has observed, the rationale for the Golding doctrine is that, when the trial record is adequate for appellate review, a party should be able to raise an unpreserved constitutional claim because such claims "implicate fundamental rights...." State v. Brunetti,
General Statutes § 31-51q provides in relevant part that "[a]ny employer ... who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution[3] or section 3,[4] 4[5] or 14[6] of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance of the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge...." It is apparent, therefore, that "[§] 31-51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employees' exercise of enumerated constitutionally protected rights." D'Angelo v. McGoldrick,
II
I also disagree with the majority's conclusion concerning the proper standard for determining the review-ability of an unpreserved alternative ground for affirmance. The majority declines to address the plaintiff's alternative ground for affirmance under § 31-51q in large part because the plaintiff did not raise the claim in the trial court and there are no "exceptional circumstances" warranting this court's review of the claim. Unlike the majority, I would conclude that an appellate court ordinarily should consider an unpreserved alternative ground for affirmance if the record is adequate for review and the appellee can establish that the appellant will not be prejudiced by such review.[7] Under such circumstances, considering an appellee's alternative ground for affirmance would preserve the finality of judgments and promote judicial economy without perpetrating a wrong on the appellant or on the trial court.
In reaching a stricter conclusion, the majority hews to an approach that this court adopted without any real analysis and to which this court has not consistently adhered. The majority notes that "[t]his court previously has held that [o]nly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.... This rule applies equally to alternate grounds for affirmance.... New Haven v. Bonner,
I do not dispute that the cases that the majority citesBonner, Thomas and Pecksay what the majority says they do. I nevertheless believe that these cases should not drive this court's policy concerning appellate review of unpreserved alternative grounds for affirmance, first, because the strict approach endorsed by these cases is not the most efficacious one and was adopted without any real analysis, and, second, because we have not consistently adhered to that strict approach.
As we observed in Bonner, Thomas and Peck, under our rules, this court is never required to address unpreserved claims. See New Haven v. Bonner, supra,
The general rule disfavoring review of claims raised by the appellant for the first time on appeal stems from the concern that any other rule would be unfair to the trial court and to the opposing party. "[I]t is the appellant's responsibility to present... a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily [the appellant] must raise in the trial court the issues that he intends to raise on appeal.... For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.... We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal." (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc.,
Consequently, as this court has recognized, it is prudent to permit appellate review of an appellant's unpreserved claims only in exceptional circumstances. Claims that satisfy that stringent standard include claims of constitutional magnitude; see, e.g., State v. Golding,
When an appellee, rather than an appellant, raises a claim for the first time on appeal, the claim, if successful, would preserve the judgment, not upset it. In such a circumstance, there is no possibility of an ambuscade of the trial court because the claim represents a separate and independent alternative ground on which the trial court's judgment may be affirmed. In the event that the appellant will not be prejudiced by review of the appellee's unpreserved claim, there is no persuasive reason to deny such review, and good reason to afford it. After all, a trial is a search for the truth conducted for the sake of resolving the parties' dispute. See, e.g., Nix v. Whiteside,
Consistent with the foregoing considerations, "when the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court's action if proper grounds exist to support it." (Internal quotation marks omitted.) State v. Colon,
I also note that, when an appellee has raised a claim in the trial court, a reviewing *109 court will consider the claim as an alternative ground for affirmance, if the trial court did not address the claim, provided the record is adequate for review. See, e.g., King v. Sultar,
Finally, Practice Book § 63-4(a)(1) provides in relevant part: "If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed ... that appellee shall file a preliminary statement of issues within twenty days from the filing of the appellant's preliminary statement of the issues...." Although Practice Book § 63-4(a)(1) speaks in mandatory terms, this court has "refused to consider an issue not contained in a preliminary statement of issues only in cases in which the opposing party would be prejudiced by consideration of the issue." (Emphasis added; internal quotation marks omitted.) State v. Cruz,
III
In concluding that the defendants would be prejudiced by our review of the plaintiff's unpreserved alternative ground for affirmance, the majority asserts that "affirming the ... award [of damages] for the plaintiff's [state constitutional] claim pursuant to § 31-51q would prejudice the defendants because the plaintiff's failure to raise [that claim] in [the trial court] ... deprived them of the opportunity to evaluate and possibly to settle the claim before the jury returned its verdict." Text accompanying footnote 27 of the majority opinion. Unlike the majority, I believe that considerations pertaining to the counterfactual settlement of a case have no bearing on the issue of whether an appellant would be prejudiced by appellate review of an appellee's unpreserved claim.
The decision whether to settle a case ordinarily is influenced by many diverse factors. Undoubtedly, one such factor is the strength of the opposing party's case. The more that a party knows about the other party's case, the better the former can evaluate the advantages and disadvantages *110 of settlement. But no matter how straightforward a case might seem, almost any such evaluation is complicated and multifaceted. Consequently, there is no reason why this court should presume that, in any given case, the likelihood of settlement would have increased if only the appellee had not failed to raise its alternative ground for affirmance in the trial court. There simply is no way to determine whether the appellee would have had any interest in settling, let alone an interest in settling on terms agreeable to the appellant. In light of the multitude of factors in the settlement equation, it is mere speculation for the majority to conclude that an appellant likely will be prejudiced in its opportunity to settle the case merely because the appellee did not raise its alternative ground for affirmance in the trial court. We should not deprive the appellee of an opportunity to raise an alternative ground for affirmance on the basis of such conjecture. Moreover, because it always can be said that an appellee's failure to raise its alternative ground for affirmance in the trial court conceivably might have affected the appellant's willingness to attempt to settle the case, the majority effectively bars appellate review of unpreserved alternative grounds for affirmance in all future cases. There is no legitimate reason to create such a bad policy.
In addition, this court ordered the parties to file supplemental briefs on the following question: "Under the facts of this case, are the defendants prejudiced if this court considers the unpreserved issue of whether the plaintiff's speech was protected under the state constitution?" The defendants responded in the affirmative and identified several ways in which they would be prejudiced by this court's review of the plaintiff's unpreserved state constitutional claim. Not surprisingly, the defendants themselves did not contend that they were prejudiced because the plaintiff's failure to raise that claim in the trial court deprived them of a meaningful opportunity to settle the case. For these reasons, I cannot agree with the majority's refusal to review the plaintiff's unpreserved claim on the wholly speculative ground that the defendants were prejudiced because their "opportunity to evaluate and possibly to settle the claim before the jury returned its verdict" might have been impaired.
I do agree with the defendants, however, that the plaintiff cannot establish that the defendants would not be prejudiced by this court's review of the plaintiff's unpreserved claim. In particular, I agree with the defendants' contention that, because they had an airtight defense to the plaintiff's federal constitutional claimas the plaintiff now concedes, under Garcetti v. Ceballos, supra,
Accordingly, I concur in the result that the majority reaches in part I A of its opinion. I otherwise join the majority opinion.
NOTES
[1] Although the caption of the present case refers to the City of Bridgeport et al., the real party in interest is the board. Also named as defendants at trial were the Connecticut Education Association, Jack Reh, the Bridgeport Education Association, Mary Loftus Levine, the department of children and families and Maria Melendez. Because these defendants are not involved in the present appeal, references to the defendants are to the board, Kelly and Shamas.
[2] The first amendment to the United States constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
[3] The constitution of Connecticut, article first, § 3, provides: "The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state."
The constitution of Connecticut, article first, § 4, provides: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."
The constitution of Connecticut, article first, § 14, provides: "The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance."
[4] General Statutes § 31-51q provides in relevant part: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney's fees as part of the costs of any such action for damages...."
[5] General Statutes § 17a-101e provides in relevant part: "(a) No employer shall discharge, or in any manner discriminate or retaliate against, any employee who in good faith makes a report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103, testifies or is about to testify in any proceeding involving child abuse or neglect. The Attorney General may bring an action in Superior Court against an employer who violates this subsection. The court may assess a civil penalty of not more than two thousand five hundred dollars and may order such other equitable relief as the court deems appropriate...."
[6] Section 1981(a) of title 42 of the United States Code provides in relevant part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens...."
[7] Section 1983 of title 42 of the United States Code provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."
[8] The defendants appealed to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
[9] Accordingly, we need not reach the defendants' other claims or the plaintiff's claims on cross appeal.
[10] The plaintiff testified at trial that a small group of disgruntled teachers had resisted her efforts to improve the academic situation at Beardsley School. These efforts included prohibiting teachers from showing movies or videos in the classroom unless they were related to the subject being taught, visiting each classroom every day to ensure that the teachers were following lesson plans, prohibiting teachers from eating snacks in the class room and being an advocate for the children.
[11] Kelly testified that Carroll had informed him about the accusations against the plaintiff and he, in turn, had informed Ramos. Kelly asked to be recused from any investigatory process because of his involvement in the present litigation, which was initiated in 2000.
[12] John Di Donato, the assistant superintendent for youth development for the school district, wrote a letter to the plaintiff on February 28, 2006, indicating that three reports had been filed with the department concerning the plaintiff's conduct with students, and that he had met with the plaintiff to discuss the reports. Di Donato stated that the department "could not substantiate the allegations contained in the ... reports. However, I noted [at the meeting with the plaintiff] that their findings did include a number of areas of concern," including the plaintiff's physical contact with students. Di Donato stated that he had advised the plaintiff "to limit [her] physical contact with students," and had warned her that failure to comply with this instruction could result in further disciplinary action, including separation from employment.
[13] Specifically, the plaintiff claimed that Kelly had interfered with her efforts to evaluate and discipline teachers and staff members at Beardsley School, had denied her requests to participate in programs for professional development and her requests for adequate staffing and supplies, had subjected her to disciplinary measures to which other principals had not been subjected, had subjected her to threats of official discipline by the board's attorneys, had demoted her unjustifiably and had unfairly evaluated her work performance.
[14] In support of this argument, the defendants relied on Pagani v. Board of Education, United States District Court, Docket No. 3:05-CV-01115 JCH,
Notes
[15] In support of this argument, the plaintiff relied on the trial court's decision in Schumann v. Dianon Systems, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-05-5000747-S,
The trial court in Schumann ultimately concluded that Garcetti does not apply to private employers and, after a jury trial, rendered judgment for the plaintiff. In Schumann v. Dianon Systems, Inc.,
[16] Thereafter, the defendants filed a motion for articulation of, among other things, the trial court's reasons for rejecting their claim pursuant to Garcetti, which the trial court denied. The defendants then filed in this court a motion for review of the trial court's denial of their motion for articulation, which this court denied in relevant part.
[17] After this appeal and cross appeal were filed, we granted the application of the Connecticut Employment Lawyers Association to file an amicus curiae brief in support of the plaintiff's position in her claim pursuant to § 31-51q.
[18] The trial court submitted two interrogatories to the jury in connection with the plaintiff's claims of retaliation. The first interrogatory asked: "Has [the plaintiff] proven by a preponderance of the evidence that [the defendants] retaliated against her for filing reports of child abuse with [the department] taken against her prior to 2005?" The second interrogatory asked: "Has [the plaintiff] proven by a preponderance of the evidence that [the defendants] retaliated against her when she was placed on administrative leave on November 29, 2005, allegedly for student abuse?" The interrogatories did not specify the statute under which the claims of retaliation were being brought. The plaintiff claims on appeal that the jury reasonably could have answered "yes" to both questions pursuant to either § 31-51q or § 17a-101e. Accordingly, we address the defendants' claims relating to both statutes together.
[19] The plaintiff contends that this claim was not preserved for review because, even though the defendants cited Garcetti in both their oral motion for a directed verdict and in their posttrial motion for a directed verdict, their argument was not that a public employee's speech pursuant to official job duties is not protected by the first amendment per se, but that such speech is not a matter of public concern. We conclude that the defendants adequately put the plaintiff and the trial court on notice of the nature of their claim pursuant to Garcetti v. Ceballos, supra,
The trial court instructed the jury that, in order to find that the plaintiff's speech was constitutionally protected, it must find that "her activity constituted a matter of public concern." In addition, the court instructed the jury that, pursuant to § 31-51q, it must find that the plaintiff's "activity did not substantially or materially interfere with her bona fide job performance or the working relationship between herself and the defendants." Although the basis for the court's "public concern" instruction is not entirely clear, the United States Supreme Court, before it decided Garcetti, held that speech by a public employee is constitutionally protected only if the speech is on a matter of public concern and the employee's free speech interest is not outweighed by the interest of the employer "in promoting the efficiency of the public services it performs through its employees." Connick v. Myers,
[20] The amicus argues that, when an employer has violated General Statutes § 31-51m, which prohibits employers from retaliating against their employees for whistle-blowing activities, the violation can form the basis of a claim pursuant to § 31-51q, even if the employee was not exercising constitutional speech rights. We disagree. The remedy provided by § 31-51q plainly and unambiguously is limited to cases in which an employee has disciplined or discharged an employee "on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state...." In any event, the plaintiff has not claimed that the defendants violated § 31-51m.
[21] Although this principle is one of appellate review, we see no reason why the trial court should not also be entitled to assume that the state constitution and the federal constitution are coextensive in the absence of any claim to the contrary by the party raising the constitutional issue.
[22] The plaintiff in the present case did not file a statement of alternate grounds on which the judgment could be affirmed in compliance with Practice Book § 63-4(a)(1). This court generally has reviewed alternate grounds for affirmance even though the appellee has not complied with the requirement to identify such claims in a preliminary statement, when doing so would not prejudice the appellant. See Connecticut Ins. Guaranty Assn. v. Fontaine,
[23] See, e.g., Vine v. Zoning Board of Appeals,
This court also has addressed unpreserved claims raised as alternate grounds for affirmance in criminal cases under State v. Golding,
[24] See footnote 23 of this opinion.
[25] After oral argument before this court, we ordered the parties to submit supplemental briefs on the following questions: (1) Under the facts of this case are the defendants prejudiced if this court considers the unpreserved issue of whether the plaintiff's speech was protected under the state constitution?; and (2) When an appellee has raised, for the first time on appeal, an alternative ground for affirmance, who has the burden of demonstrating prejudice or lack thereof? Because the plaintiff is asking for an exception to the general rule that we will not review claims that were not raised in the trial court, we conclude that the burden is on the plaintiff to prove that the defendants will not be prejudiced by our review of the claim. For the reasons stated in this opinion, we conclude that the plaintiff has not met that burden.
The plaintiff contends, however, that "[i]t was never [her] obligation ... to raise in the trial court or in this appeal as an alternate ground for affirmance the issue of whether her speech was protected because the issue, as raised by the defendants, clearly is subsumed within and is completely intertwined with [§] 31-51q ...." The plaintiff also makes the remarkable claim that she would be prejudiced if this court were to consider the defendants' arguments against her unpreserved claim that the state constitution is broader than the federal constitution in this context because the defendants did not claim at trial that her claim pursuant to § 31-51q is barred by the state constitution. The plaintiff fails to recognize that the defendants were entitled to assume that the scope of the state constitution is coextensive with the scope of the federal constitution in the absence of any claim to the contrary. State v. Gore, supra,
[26] Pursuant to the trial court's instruction, the jury could render a verdict for the plaintiff if it found that: (1) the plaintiff's speech was constitutionally protected because it constituted a matter of public concern; and (2) pursuant to § 31-51q, the plaintiff's "activity did not substantially or materially interfere with her bona fide job performance or the working relationship between herself and the defendants." See footnote 19 of this opinion. If a jury were instructed pursuant to Connick, however, it could find that the plaintiff's speech was not constitutionally protected in the first instance if it found that, although her speech constituted a matter of public concern, her free speech interest was outweighed by the defendants' interest in efficiently operating the school system. For example, the jury might find that, although the defendants had transferred the plaintiff at least in part because of her reports of abuse, they also did so because some teachers had become hostile to the plaintiff, thereby impairing her effectiveness in that particular school. In that case, the jury could not render a verdict for the plaintiff on her claims pursuant to § 31-51q, even if the plaintiff's conduct did not substantially interfere with her job performance or with her working relationship with the defendants. In addition, this court could conclude that, although Garcetti does not apply to claims under the state constitution, the Connick standard is too liberal as applied to speech pursuant to official job duties in light of the concerns raised in Garcetti. Cf. Wickwire v. State,
We recognize that the defendants did not claim at trial or on appeal that the jury instructions were defective not only because the plaintiff's claim pursuant to § 31-51q was barred under Garcetti, but also because the instructions incorrectly stated the standard that predated Garcetti. As we have indicated, however, the defendants were not required to raise every possible defense to the plaintiff's § 31-51q claim if they believed that their Garcetti claim was dispositive. Because we agree that the defendants' claim pursuant to Garcetti is dispositive of the § 31-51q claim as it was actually litigated, the defendants should prevail on appeal unless the plaintiff can show that the defendants would not be prejudiced by an affirmance based on her unpreserved state constitutional claim because the trial court gave a proper jury instruction on that issue. Of course, if we had disagreed with the defendants' claim pursuant to Garcetti, any claim that the judgment of the trial court should be reversed because the jury instructions were improper for other reasons would be unpreserved.
[27] The specific amount awarded to the plaintiff on her claim pursuant to § 31-51q is not clear from the record because when the trial court found that the separate awards for noneconomic and punitive damages pursuant to this claim and the discrimination claim were duplicative and reduced the cumulative $1,000,000 award for both claims to $500,000, it did not allocate the new award between the claims.
[28] The defendants raised this claim in their oral motion for a directed verdict and in their posttrial motion for a directed verdict.
[29] In her fifth revised complaint, the plaintiff alleged that the defendants' conduct toward her in 1998 through 2000 had been motivated by racial discrimination. The jury interrogatories, however, allowed the jury to find that the defendants had engaged in racial discrimination only with respect to their response to the allegations of abuse against the plaintiff in 2005, when they placed the plaintiff on administrative leave. In addition, the trial court instructed the jury that "[t]he plaintiff claims that the defendants discriminated against her by putting her on administrative leave...." The court did not refer to the defendants' conduct in 1998 through 2000 in connection with its instructions on the plaintiff's claim of racial discrimination. Accordingly, the plaintiff has abandoned any claim that the defendants' conduct toward her in 1998 through 2000 was motivated by racial discrimination. Moreover, the plaintiff has made no argument on appeal that the defendants' conduct toward her in 1998 through 2000 would support a conclusion that they discriminated against her on the basis of her race in 2005, and she has pointed to no evidence that would support a finding that the defendants' conduct in 1998 through 2000 was motivated by racial discrimination and not by some other reason, proper or improper. See Fisher v. Vassar College,
[30] The plaintiff sought to present as evidence of this practice memoranda memorializing the board's investigatory efforts in seventeen cases of alleged abuse of a student by a school district employee. The trial court concluded that the memoranda were cumulative and that introducing them as evidence potentially could violate the privacy of the subjects of the investigation. The court allowed the plaintiff, however, to introduce one of the memoranda, in a redacted form, and to inform the jury that the other sixteen cases had been handled in a similar manner. The record does not reflect the races of the teachers or students involved in these seventeen cases.
[31] The plaintiff did not identify these two white female teachers by name.
[32] Carroll did not identify this school principal by name.
[33] Kelly testified that he became aware of the allegations against A.C. in the fall of 2005, and that he placed him on administrative leave immediately. Ramos testified that he became aware of the allegations against A.C. during the fall of 2005, and that Kelly conducted a meeting at which A.C. was placed on administrative leave. The plaintiff produced documentary evidence, however, showing that allegations of abuse had been made against A.C. in July, 2004. The evidence also showed that A.C. was placed on administrative leave on June 3, 2005, after an investigation established that he had violated the school district's sexual harassment policy. In addition, the evidence indicated that A.C. was assigned to the city of Bridgeport's administrative offices during his leave. Ramos testified that he became school superintendent on June 6, 2005. It is unclear from the record whether there were two separate allegations of abuse against A.C. and two separate administrative leaves, or whether Kelly and Ramos were mistaken about the dates that they had learned about the allegations and that A.C. had been placed on leave.
[34] In some employment contexts, such as claims involving hiring, promoting or granting tenure, the plaintiff must show that she was qualified to hold her employment position. Craine v. Trinity College, supra,
[35] See also Timmerman v. U.S. Bank, N.A.,
[36] In addition, a number of courts have held that, for purposes of proving discriminatory intent in individual disparate treatment cases, "statistical evidence derived from an extremely small universe ... has little predictive value and must be disregarded." (Internal quotation marks omitted.) Aragon v. Republic Silver State Disposal, Inc., supra,
[37] The white employees to whom the plaintiff compares herself are: the teacher who Smith had asked the plaintiff to vouch for while she was the principal at Beardsley School; the teacher who the plaintiff had interviewed while she was the principal at Roosevelt School; the principals L.R. and A.E.; and the teachers V.L. and T.B.
[38] See Shumway v. United Parcel Service, Inc., supra,
[39] As we have indicated, the evidence was ambiguous as to whether Ramos had been involved in disciplining A.C. and whether A.C. was treated the same as the plaintiff. See footnote 33 of this opinion. The plaintiff does not dispute the defendants' claim that they treated A.C. the same as the plaintiff, however, and she expressly concedes that the defendants treated "similarly situated nonblack employees ... in the same manner as [the] plaintiff," although she did not identify these employees.
[40] Because the defendants articulated legitimate reasons for their treatment of the plaintiff, the burden was on her to establish by a preponderance of the evidence that the defendants were motivated by discrimination even if the jury disbelieved the defendants' reasons. Weinstock v. Columbia University, supra,
[41] These employees are the six employees to whom the plaintiff seeks to compare herself; see footnote 37 of this opinion; and A.C., whom the jury reasonably could have concluded was treated more favorably than the plaintiff. See footnote 33 of this opinion.
[42] These employees are the male African-American principal who was accused in 2006, the plaintiff herself when she was accused in 2008, S.A. and J.A.
[43] The plaintiff cites Graham v. Long Island Rail Road, supra,
[44] Of course, if a plaintiff can point to direct evidence that the employer discriminated against him or her on the basis of race, the plaintiff need not establish any pattern of disparate treatment. We conclude only that, if a plaintiff is relying solely on circumstantial statistical evidence that the employer has treated him or her differently than similarly situated employees who are not in the protected class to prove discriminatory intent, and the evidence fails to show a stark pattern of discrimination, then the plaintiff has failed to prove an intent to discriminate as a matter of law.
[45] When a plaintiff attempts to satisfy the ultimate burden of proving discriminatory intent by presenting circumstantial evidence of disparate treatment, the plaintiff must show "that the better-treated workers with whom the plaintiff compares herself are a representative sample of all the workers who are comparable to her.... She must not pick and choose [comparators]." (Citations omitted.) Crawford v. Indiana Harbor Belt Railroad Co.,
The evidence in the present case showed that at least seventeen administrators were accused of abusing student during the relevant time period. See footnote 30 of this opinion. The plaintiff has not explained why not all of these administrators were similarly situated to her or why she was unable to use them as comparators, and we have no way of knowing whether the sample that she chose was representative. Because we have concluded, however, that the circumstantial evidence presented by the plaintiff in the present case did not show a pattern of discriminatory conduct, even if it is assumed that the plaintiff compared herself to all of the relevant comparators, and because the defendants have raised no claim in the present case that the plaintiff failed to identify all relevant comparators, we need not consider whether or how these principles would apply here.
[1] Under State v. Golding,
[2] As the majority notes, the plaintiff, in her brief to this court, did not seek Golding review of her state constitutional free speech claim under § 31-51q. It is apparent that she did not do so, however, because she viewed the claim as preserved. In any event, the majority's decision not to review her claim is predicated on what it characterizes as a problem more fundamental than her failure to seek Golding review, namely, her failure to raise a claim of constitutional magnitude. It is this latter conclusion with which I take issue.
[3] The first amendment to the United States constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
[4] Article first, § 3, of the constitution of Connecticut provides: "The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state."
[5] Article first, § 4, of the constitution of Connecticut provides: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."
[6] Article first, § 14, of the constitution of Connecticut provides: "The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance."
[7] I agree with the majority that the burden is on the appellee to demonstrate that the appellant will not be prejudiced by review of the appellee's unpreserved alternative ground for affirmance. I add, however, that the appellant first should be required to advance a colorable claim of prejudice so that the appellee will know the nature of the alleged prejudice that it must disprove.
[8] Practice Book § 63-4 provides in relevant part: "(a) At the time the appellant sends a copy of the endorsed appeal form and the docket sheet to the appellate clerk, the appellant shall also send the appellate clerk an original and one copy of the following:
"(1) A preliminary statement of the issues intended for presentation on appeal. If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed ... that appellee shall file a preliminary statement of issues within twenty days from the filing of the appellant's preliminary statement of the issues...."
[9] The majority also states that, "even if we were to assume that a lack of prejudice to an appellant would justify review of an alternate ground for affirmance that was not raised in the trial court, even in the absence of other exceptional circumstances, the plaintiff in the present case has not established that the defendants would not be prejudiced if we were to review this claim." Text accompanying footnote 25 of the majority opinion. Thereafter, the majority explains that the defendants would be prejudiced by review of the defendants' alternative ground for affirmance. Because I believe that the better, more efficacious policy would be to permit review of unpreserved alternative grounds for affirmance whenever the appellant would not be prejudiced by such review, I would not "assume" that that is the appropriate policy approach for purposes of the present case only.
[10] The latter of these two considerations, namely, judicial economy, is especially important when the judgment would have to be reversed and a new trial ordered in the event that the reviewing court rejected an otherwise meritorious alternative ground for affirmance merely because it had not been raised in the trial court.
[11] I also note the general rule that, "[i]f the alternate issue was not ruled on by the trial court, the issue must be one that the trial court would have been forced to rule in favor of the appellee. Any other test would usurp the trial court's discretion." (Internal quotation marks omitted.) Zahringer v. Zahringer,
[12] In this regard, it bears noting that, in Peck, this court, without further explanation, "decided to address certain [of the] claims made by the [appellee] although he did not make them in the trial court"; Peck v. Jacquemin, supra,
[13] To the limited extent that the denial of appellate review of unpreserved alternative grounds for affirmance may serve to deter parties from failing to raise claims in the trial court, I do not believe that that consideration trumps the significant interests favoring review of the claim.
[14] Indeed, in her complaint, the plaintiff expressly alleged that she had reported the abuse to the department "in the course of her employment-related obligations" and in the discharge of "her legal obligations as a mandated reporter pursuant to [s]tate ... statutory law." Moreover, there is nothing in the plaintiff's trial testimony to indicate that her reports of abuse were motivated by any other concerns or considerations, and the record is devoid of any other allegedly protected speech. Under the circumstances, therefore, it is difficult to see how the plaintiff's mandated reports to the department could be found to implicate the free speech rights that § 31-51q was intended to protect. Even if the defendants would not have been entitled to judgment as a matter of law on the plaintiff's unpreserved state constitutional claim, however, as I have explained, they were prejudiced by the plaintiff's failure to raise the claim in the trial court.