Opinion
No. CV10 600 43 33
February 25, 2011
MEMORANDUM OF DECISION
On March 30, 2010, the plaintiff, Michael Eagen, a University of Connecticut (UCONN) labor and employment specialist, brought an administrative appeal from a February 8, 2010 final decision of a Commission on Human Rights and Opportunities (CHRO) human rights referee finding that Eagen retaliated against Daniel Schwartz, a former UCONN laboratory animal veterinarian, for his whistle blowing activities in violation of General Statutes § 4-61dd(b)(1) by failing to return all of Schwartz's personal belongings following his termination and ordering that Eagen pay $5,000 in emotional distress damages. In support of his appeal, Eagen has articulated five grounds for why the referee's decision should be vacated, set aside, and reversed.
The court must review the grounds under the uniform Administrative Procedures Act (UAPA), § 4-183. "Our review of an agency's factual determination is constrained by General Statutes § 4-183(j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency . . . An agency's factual determination must be sustained if it is supported by substantial evidence in the record taken as a whole . . . Substantial evidence exists if the administrative record affords a substantial basis in fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the plaintiffs to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record . . . With respect to questions of law, [w]e have said that [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) Board of Education v. Commission on Human Rights Opportunities, 266 Conn. 492, 503-04, 832 A.2d 660 (2003).
The court has reviewed the administrative record and memoranda of Eagen, Schwartz, and the CHRO, and, for the reasons stated below, concludes that there is substantial evidence to support the referee's findings of fact and that the referee's conclusions of law are reasonable.
First, Eagen argues that Section 4-61dd precludes former employees from suing for retaliation unless that retaliation adversely affects an employee's reputation or ability to secure future employment. This argument is without merit. General Statutes § 4-61dd(b)(1) provides in relevant part: "No state officer or employee . . . shall take or threaten to take any personnel action against any state . . . employee . . . in retaliation for such employee's . . . disclosure of information to . . . an employee of the state agency or quasi-public agency where such state officer or employee is employed . . ." Connecticut courts routinely look to federal law for guidance when interpreting discrimination and retaliation cases brought under state law. See Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990) (applying federal burden shifting framework to state law claim); Tosado v. State, Superior Court, judicial district of Fairfield, Docket No. CV 03 0402149 (March 15, 2007, Gilardi, J.) (applying federal law to a retaliation claim brought under state law); Krahm v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 04400006 (December 8, 2008, Doherty, J.) (same).
Recently, the United States Supreme Court held that "the anti-retaliation provision [of Title VII] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." Burlington Northern Santa Fe R. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Instead, the anti-retaliation provision covers employer actions that a reasonable individual would have found "materially adverse to a reasonable employee . . ." Id., 68. That is, the employer action complained of must be "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id., 57. Instead of applying a bright line rule, the court opted for "a legal standard that speaks in general terms rather than specific prohibited acts [because] . . . an act that would be immaterial in some situations is material in others." (Internal quotation marks omitted.) Id., 69. Notably, the holding in Burlington Northern must be interpreted in light of Robinson v. Shell Oil Co., 519, U.S. 337, 339, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), in which the Supreme Court held that title VII's anti-retaliation provision protects former employees to the same extent that it protects employees. Otherwise, employers would have a "perverse incentive" to fire employees who bring claims pursuant to anti-discrimination statutes. Id., 346.
In the present case, the referee determined that depriving Schwartz of his personal property constituted an adverse action for a retaliation claim because it would dissuade a reasonable employee from whistle blowing. This court finds that the referee's application of the law was correct and that his conclusion logically follows from the facts contained in the administrative record.
Second, Eagen argues that the referee erred in finding that he retaliated against Schwartz because § 4-61dd does not permit individual liability. Because there was no finding of individual liability in the present case, this argument is misplaced. The state, as evidenced by its representation of Eagen, is indemnifying him pursuant to Conn. Gen. Stat 5-141d(a). Individual liability could only be imposed if the referee had found that Eagen engaged in "wanton, reckless or malicious behavior." Conn. Gen. Stat § 5-141d(a). That the referee did not find that Eagen engaged in such behavior requires this court to conclude that this argument lacks merit.
Third, Eagen argues that the referee erred in finding that the delay in returning Schwartz's property was an adverse personnel action because he inappropriately applied the standard used to determine adverse employment actions. The term "adverse personnel action" is not defined in § 4-61dd or its regulations. The phrase "adverse employment action," however, as used in the state and federal anti-discrimination statutes, appears to bear essentially the same meaning as "adverse personnel action" in the whistle blower protection act because courts have used the terms interchangeably. See, e.g., Allen v. Administrative Review Board, 524 F.3d 468, 475-76 (5th Cir. 2008) ("unfavorable personnel action" and "adverse employment action are interchangeable terms for purposes of a federal Sarbanes Oxley retaliation claim). The referee found that Schwartz engaged in an adverse employment action by delaying and failing to return all of Schwartz's personal belongings after he was terminated and that this would dissuade a reasonable employee from making a claim of retaliation. This court finds that the referee's application of the law was correct and that his conclusion logically follows from the facts contained in the administrative record.
Fourth, Eagen argues that there is insufficient evidence to support a finding of a causal connection between Schwartz's whistle blower activity and Eagen's actions. "Causation is proven by showing that the protected activity was temporally close or followed closely by . . . evidence of retaliatory animus directed at the plaintiff by the defendant." Gordon v. New York City Board of Education, 232 F.3d 111, 117 (2d Cir. 2000). "A causal connection can be established indirectly by showing that the protected activity was followed close in time by adverse action . . . but the inquiry into whether temporal proximity establishes causation is factual in nature. There is no bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between [protected activity] and an alleged retaliatory action." (Internal quotation marks omitted.) Taylor v. Connecticut Department of Correction, Superior Court, judicial district of New Haven, Docket No. CV 09 5030106 (July 12, 2010, Wilson, J.); see also Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (finding the passage of six months between protected activity and retaliation to support an inference of a causal connection). In addition, an employee can use "prior acts as background evidence in support of a timely claim." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Accordingly, the referee found that Schwartz's whistle blowing in May and June 2008, combined with his prior history of whistle blowing and adverse actions taken against him including demotion, removal from a University committee and poor performance evaluations, established a causal connection. Moreover, in his findings of fact, the referee noted that Eagen was aware of Schwartz's whistle blowing activities. Accordingly, there is sufficient evidence in the record to support a finding of a causal connection because the adverse personnel action began only four months after Eagen's whistleblowing activities.
Fifth, Eagen argues that the finding that he retaliated against Schwartz is not supported by substantial evidence. "The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion . . . The law is also well established that if the decision of the commissioner is reasonably supported by the evidence is must be sustained." (Citations omitted; internal quotation marks omitted.) Goldstart Medical Services v. Dept. of Social Services, 288 Conn. 790, 833-34, 955 A.2d 15 (2008). A close examination of the evidence presented to the referee reasonably supports his conclusion Eagen's failure to return all of Schwartz's belongings was the result of retaliatory animus.
For the foregoing reasons, the plaintiff's appeal is hereby DISMISSED and Eagen is ordered to pay Schwartz $5,000 in emotional distress damages plus postjudgment interest at 10 percent per annum effective March 18, 2010. Upon submission by the defendants' counsel of an appropriate motion, the court will consider reasonable attorneys fees.
The referee's decision is sustained.