Delci Lev v. New Haven Board of Education (2014)

Memorandum of Decision in Re Motion to Set Aside Verdict, No. 135

This is an action for money damages returnable on or about September 8, 2011.   The plaintiff, in her revised complaint, claims she was a tenured teacher employed by the defendant City of New Haven Board of Education (Board or Board of Ed.) when, in June 2010, she was forced to resign in retaliation for objecting to discriminatory employment practices by the employees of the defendant.   The plaintiff claimed the conduct of the defendant violated the Connecticut Fair Employment Practices Act (CFEPA) as found in General Statutes § 46a–60 et seq.   The defendant denied any wrongdoing and claimed instead that the plaintiff had evidenced her intent to resign in June 2010, and, when the plaintiff attempted to withdraw her resignation, the board was unwilling to rescind the resignation.   The defendant, in its first special defense, claimed any violation of the CFEPA was based on conduct that occurred more than 180 days prior December 20, 2010, the date on which the plaintiff filed her complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO), and thus was time barred.   The defendant raised a second special defense that the plaintiff failed to mitigate her damages by failing to use diligence in seeking other suitable employment.   The plaintiff denied the defendant's special defenses.

The matter proceeded to a trial by jury over the course of approximately ten days of evidence, commencing September 10, 2013.   On September 26, 2013, the jury returned a verdict for the plaintiff and awarded her economic damages in the sum of two hundred fifty-five thousand dollars.   This motion to set aside the verdict/motion for judgment notwithstanding the verdict followed.   The parties appeared at short calendar for argument February 10, 2014.

The jury could reasonably have found the following facts.   The plaintiff, at the time of trial, was sixty-seven years of age.   She taught in the New Haven school system from September 1984 through June 2010.   Jewish and Caucasian, the plaintiff grew up in Brooklyn, New York, and family members included lawyers and individuals who served in the military.   Her family was involved with civil rights issues and the Nuremburg trials.¹  Her Mother worked for the anti-defamation league in Manhattan.   Socially conscious, the plaintiff decided to become a teacher.   She enjoyed teaching and learning.   As a professional, she received fellowships from Yale University and Harvard University.   She won grants and awards for designing curriculums.   She taught language arts, social studies and history.   For about eleven years, she taught at the magnet school in New Haven.   She was active in the arts and raised a child as a single mother.

In the fall of 2005, the plaintiff was assigned to teach at the Fairhaven Middle School.   On September 12, 2005, the plaintiff attended a data team meeting at the middle school along with other teachers and then principal Kevin Miller.   At that meeting, Miller told the teachers that in his experience, children in New Haven were generally excited when they got to kindergarten, however, they became disillusioned because the teachers were all white suburban women, or he used words to that effect.   In addition, Miller said he could have been a “Gestapo agent” ² due to his ability to control children.  “But not to worry,” he continued, “I have your backs.”   The plaintiff was horrified by these comments.   She consulted the head of her union.   She eventually filed a written complaint about the events.   The head of personnel, Andrea Lobo–Wadley, conducted an investigation.   As a result, Principal Miller apologized to the plaintiff.   The plaintiff informed the principal that she didn't know how he could apologize for the way he thinks.

Six months and one day following this incident, the plaintiff was subjected to a pattern of hostile acts and dubious criticisms by the defendant, which, at best, was petty and picayune and, at worst, was vindictive and intended to disrupt the quality of the plaintiff's teaching experience.   Miller yelled at the plaintiff and disapproved her routine requests for educational enrichment.   He submitted reprimands to her for bogus transgressions.   Principal Miller, without justification, deprived the plaintiff of resources and support that were granted to other teachers.   Subsequently, Miller left the middle school to take a position in the Hartford area.   The plaintiff was transferred to the Truman Middle School.   While there, the plaintiff suffered a work-related wrist or hand injury.   She was out for a period and then returned with a request for accommodation.   Without her knowledge, and against specific board of education policy, the plaintiff was placed on a written “plan of improvement.”   The plan was inserted into the plaintiff's personnel file, again without her knowledge and against the written policy of the board of education.   The plaintiff only discovered this “plan of improvement” when Lobo–Wadley discouraged the plaintiff from applying for an assistant principal post because this “plan of improvement” status precluded her from being considered for this executive post.

Sometime in July 2009, Lobo–Wadley, on behalf of the defendant, suggested that the plaintiff resign, and that the school no longer had a position for the plaintiff.   The plaintiff consulted with union representatives.   With virtually no other teaching option afforded her by the defendant, the plaintiff expressed her intent to resign at the end of the following school year.   Subsequently, the plaintiff received an email from Lobo–Wadley saying the defendant “accepted” her resignation.   The plaintiff tried to rescind what the board interpreted to be a “resignation,” but was told by Lobo–Wadley that the request was denied.   As of June 2010, the plaintiff, against her stated preference, was separated from her employment with the defendant.   Thereafter, the plaintiff attempted without success to find a full-time teaching position.   She responded to ads on line.   She applied for out-of-state positions.   Had she not left her employ with the defendant, the plaintiff would have remained employed with the New Haven Board of Education through 2014.   When she left in 2010, the plaintiff worked for the defendant for almost twenty-six years.   She suffered a diminution in her pension and the loss of medical benefits.

Legal Discussion

A jury “verdict will be set aside and judgment directed only if [the court] find[s] that the jury could not reasonably and legally have reached their conclusion.”  (Internal quotation marks omitted.)  Smith v. Greenwich, 278 Conn. 428, 441, 899 A.2d 563 (2006).  “[T]he [trial] court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict.”  (Internal quotation marks omitted.)  Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004).  “[A] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied ․ A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion ․ This limitation on a trial court's discretion results from the constitutional right of litigants to have issues of fact determined by a jury.”  (Internal quotation marks omitted.)  Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010).  “The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury.”  Murteza v. State, 7 Conn.App. 196, 208–09, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986).  “[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence ․ rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [trier's] verdict ․ In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable ․ In other words, [i]f the [trier] could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.”  (Internal quotation marks omitted.)  O'Connor v. Larocque, 302 Conn. 562, 612, 31 A.3d 1 (2011).

Here, the defendant argues the jury could not have reasonably concluded that an adverse action was taken against the plaintiff on or after June 16, 2010.   Clearly under the law, the defendant could not be held liable for any act that occurred outside of the 180–day period that is actionable with respect to claims filed with the CHRO. See Vollemans v. Wallingford, 103 Conn.App. 188, 194–95, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).   Construing the evidence in the light most favorable to sustaining the verdict, the defendant's failure to accept the plaintiff's attempt to rescind what the defendant interpreted as her intent to resign can certainly support the jury's finding.   Lobo–Wadley was present back in 2005 and remained in a personnel position in June 2010, when the proposed deal to work for one year and then resign was offered to the plaintiff.   Clearly, the defendant availed no other choice to the plaintiff other than resignation.   The reasonable inference from the evidence is that the defendant had branded the plaintiff as a trouble maker and whiner.   Clearly, the jury heard testimonial evidence of how the plaintiff did not stride in lock step to changes the defendant heaped upon her.   The defendant clearly failed to follow its own internal protocols for teacher criticism and improvement.   The jury could well have interpreted bad motive or intent on the part of the defendant by the continuous pattern of hostile conduct it perpetrated on the plaintiff.   The message of the constant refrain of petty and baseless criticism was clear:  “Leave.   You're not wanted.”   By interpreting a letter from the plaintiff as expressing her intent to resign as an actual resignation, the defendant, in effect, painted the plaintiff into a corner.   Furthermore, there was no effort on the part of the defendant to permit the plaintiff to rescind the perceived resignation, which certainly raises the question, “why would the City part so quickly with a twenty six year credentialed teacher?”   The jury's reasonable inference could well have been, because it desired as much.   The defendant's actions or failure to act within the 180–day time period falls within the framework of actionable conduct.   See Vollemans v. Wallingford, supra, 103 Conn.App. 219 (in termination of employment cases, alleged acts of discrimination includes “actual cessation of employment”).   This ground advanced by the defendant to justify setting aside the jury verdict is without merit.

The defendant also argues that no jury could reasonably conclude that the internal complaint made by the plaintiff against Principal Miller in September 2005 was a motivating factor either in the making of the agreement to allow the plaintiff to resign or the defendant's decision to deny the plaintiff's request to rescind her letter of intent to resign without engaging in conjecture.   On the contrary, there was evidence of the defendant's consistent pattern of denying the plaintiff's requests to conduct cultural enrichment programs with respect to understanding the Holocaust, her requests for assistance in dealing with challenging students, and her requests for accommodation due to her injury.   The defendant also transferred her involuntarily to challenging schools, and then developed and filed a teacher “plan of improvement” in the plaintiff's personnel file.   The defendant engaged in this conduct without the plaintiff's knowledge, in violation of the collective bargaining agreement, and contrary to written policies promulgated by the defendant.   There was testimony from the chief or head of the teacher's union, David Chicarella, that it was clear when he met with the defendant's head of personnel, Lobo–Wadley, on behalf of the plaintiff, that the defendant did not provide the plaintiff with an opportunity to negotiate, or present her with options other than resignation or retirement.   All he could do, he testified in so many words, was buy her a little time.   It was for the jury to determine if the defendant engaged in a pattern of retaliatory and vindictive conduct from the time the plaintiff protested the racism expressed by Principal Miller to time the plaintiff, in essence, was forced to resign.   On the one hand, the plaintiff received exemplary and renowned commendations for her work in education.   On the other hand, the defendant created and inserted petty and disingenuous criticisms of the plaintiff's performance in her file, which, among other things, precluded the plaintiff from being able to apply for advancement to an administrative position that she desired.   There was no testimony or evidence that Lobo–Wadley even attempted to discuss with the board of education whether it would consider the option of allowing the plaintiff to withdraw her resignation.   That the same individual, Lobo–Wadley, was centric to both the plaintiff's complaint, which arose from then Principal Miller's repugnant comments in 2005, and the plan to have the plaintiff resign in 2010 presumably did not escape the finder of fact.   The legal and factual arguments advanced by the defendant to set aside the jury verdict in favor of the plaintiff are unpersuasive.   There is no showing that the jury's determination is not supported by the evidence.   See O'Connor v. Larocque, supra, 302 Conn. 612.

Conclusion

For the foregoing reasons, the motion to set aside the jury's verdict, motion for judgment notwithstanding the verdict is denied.

It is So Ordered,

Nazzaro, J.

FOOTNOTES

FN1. Nuremberg trials refers to “[a] series of trials held in Nurenberg, Ger., in 1945–46, in which former Nazi leaders were indicted and tried as war criminals by the International Military Tribunal.   The indictment lodged against them [included charges of] crimes against peace ․ crimes against humanity (i.e., exterminations, deportations, and genocide) ․ war crimes (i.e, violations of the laws of war) ․” “Nuremburg Trials” Encyclopedia Britannica, http.www.britannica.com (accessed March 7, 2014)..  FN1. Nuremberg trials refers to “[a] series of trials held in Nurenberg, Ger., in 1945–46, in which former Nazi leaders were indicted and tried as war criminals by the International Military Tribunal.   The indictment lodged against them [included charges of] crimes against peace ․ crimes against humanity (i.e., exterminations, deportations, and genocide) ․ war crimes (i.e, violations of the laws of war) ․” “Nuremburg Trials” Encyclopedia Britannica, http.www.britannica.com (accessed March 7, 2014).

FN2. The term “Gestapo” refers to “the political police of Nazi Germany.   The Gestapo ruthlessly eliminated opposition to the Nazis within Germany and its occupied territories and was responsible for the roundup of Jews throughout Europe and for deportation to extermination camps.”  “Gestapo” Encyclopedia Britannica, supra..  FN2. The term “Gestapo” refers to “the political police of Nazi Germany.   The Gestapo ruthlessly eliminated opposition to the Nazis within Germany and its occupied territories and was responsible for the roundup of Jews throughout Europe and for deportation to extermination camps.”  “Gestapo” Encyclopedia Britannica, supra.

Nazzaro, John J., J.