Opinion
FSTCV146023695S
05-04-2017
Lana Rossova v. Charter Communications, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT N.O.V. (#145.00)
Kenneth B. Povodator, J.
This is an action in which the plaintiff has claimed pregnancy discrimination. The general contextual facts are not in dispute. The plaintiff was hired by the defendant for a newly-created position. The position was created for the purpose of providing assistance to the plaintiff's supervisor (Ms. Smith), allowing the supervisor to transfer certain work responsibilities to an assistant, so that the supervisor would not be burdened with the range of responsibilities she previously had.
The first month after the plaintiff was hired was, at least with respect to " the record" and communications to the plaintiff, uneventful. There were no outward manifestations relating to any claimed shortfalls in the plaintiff's performance, no emails specifically noting the need for improvement or corrective action, etc.
After approximately one month on the job, the plaintiff notified her supervisor that she was pregnant. The supervisor, coincidentally, also was pregnant, with a possibility if not likelihood that there might be some overlap in pregnancy leave. Within a few days of making her pregnancy known, the plaintiff began receiving critical comments about the quality of her work, about her schedule (time of arrival at work, lack of attendance at certain morning meetings), etc. Approximately one month after she made her pregnancy known with the resulting perceived change in attitude/environment, the employment of the plaintiff was terminated. The defendant insists that the termination was because of her poor performance, poor motivation, attendance problems, etc.
It was undisputed that the defendant did not ordinarily have written contracts for employees, such that the plaintiff was an employee at will. Further, in light of her newly-hired status, she also was categorized as a probationary employee. Thus, the plaintiff had no right to be discharged only for cause. Nonetheless, although an employer may discharge an at-will employee for almost any reason, or for no reason, an employer cannot discharge an employee, even an at-will employee, for an improper reason, and the plaintiff contends that she was terminated for such an improper reason (pregnancy status).
The liability phase of the case was tried to a jury, and after the jury initially had reported reaching a verdict, but before the verdict and interrogatories were read or accepted, the court noticed an inconsistency between the forms, and instructed the jury to reconcile the inconsistency in such fashion as it deemed fit. A few minutes later, the jury came back with a verdict in favor of the plaintiff, with jury interrogatories reflecting that determination. (The jury had crossed off and initialed an inconsistent answer on the interrogatory form.) The verdict was accepted.
Subsequently, the defendant filed a motion for judgment notwithstanding the verdict or in the alternative, asking the court to set aside the verdict and order a new trial. The court entertained argument on the motion on April 17, 2017.
In broad terms, the defendant has asked the court to set the verdict aside and/or enter judgment in its favor notwithstanding the verdict on two distinct grounds--the evidence was insufficient, as a matter of law, to support a verdict in favor of the plaintiff, and the inconsistency between the never-accepted initial version of interrogatory responses and the eventual verdict for the plaintiff demonstrates that the defendant is entitled to judgment or that at a minimum, the jury confusion manifested by the claimed inconsistency in the initially-proffered forms precludes a valid judgment for the plaintiff.
The issue of evidentiary insufficiency in a motion for directed verdict or JNOV is analogous to a motion for summary judgment or a motion to dismiss for failure to establish a prima facie case (in a courtside matter). The issue before the court is not whether the jury had no choice but to render a verdict for the plaintiff, nor is the issue whether the court, if it had been acting as a factfinder, would have found for the plaintiff. In challenging the verdict for the plaintiff, the defendant is arguing that no reasonable factfinder could have found that the evidence produced in court, giving the plaintiff the benefit of all reasonable inferences favorable to the plaintiff, could support the verdict for the plaintiff. The issue is insufficiency of evidence as a matter of law.
The standard of review applied to directed verdicts is clear. A directed verdict is justified if, on the evidence the jury reasonably and legally could not 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 . . . While 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 . . . The standard of review governing a motion for judgment notwithstanding the verdict is the same because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict. (Internal quotation marks and citation, omitted.) Haynes v. City of Middletown, 314 Conn. 303, 311-12, 101 A.3d 249, 254 (2014).
The evidence was not overwhelming, but that is not the standard. The jury was not required to accept the testimony of Ms. Patel (from the H.R. department) to the effect that if she had been made aware of the claimed situation, she would have been able to correct any problems that might have existed. The jury was not required to accept the defendant's position that the fact that the plaintiff's supervisor (Ms. Smith) and Ms. Patel had had good experiences with pregnancy accommodations necessarily was indicative of a lack of an improper pregnancy-based reaction to the news from the plaintiff. A contrary inference could be drawn based on the potential for overlap of pregnancy/maternity leave as pertains to Ms. Smith and the plaintiff--the plaintiff would not be available to cover during her supervisor's absence, thereby creating a void in the performance of their joint functions. While post hoc ergo propter hoc is a logical fallacy because a mere close-in-time relationship of events is not necessarily a sign of causative link, the fallacy exists precisely because in human experience there often is a causative link associated with temporal proximity, and if the surrounding circumstances are such as to warrant such an inference, the jury may draw the inference.
Here, the evidence presented by the plaintiff (if believed) demonstrated a relatively sharp or abrupt commencement of complaints and purported identification of problems, almost immediately after the plaintiff made her pregnancy known; claimed deficiencies in her behavior before her announcement--to the extent that they actually had existed--presumably had been kept private or had not been found to be worthy of comment. The jury was not required to ignore the timing and assume it to be mere coincidence--the jury could draw an inference from such timing, properly characterized as an inference and not mere speculation.
The defendant seeks to place almost talismanic quality on its determination that the plaintiff was not qualified--because that is the implicit if not stated reason for her termination, according to the defendant. If a pronouncement that the employee was let go because of perceived lack of qualifications or inability to do the assigned job, were to be deemed determinative of the issue of qualification to do the job, there would be virtually no successful discrimination actions--few if any employers would actually admit a discriminatory motivation. In a situation in which there was a tacit if not explicit approval or acceptance of performance prior to learning of the pregnancy, almost necessarily there would be a claim that there had been a change in performance or that there had been unarticulated pre-existing concerns. However, a factfinder is not required to credit such claimed explanations for changes in assessment of performance, and a factfinder is not required to credit claims of undocumented (or uncommunicated) concerns about pre-pregnancy-announcement performance.
The defendant's authorities are not persuasive, as the decisions are highly fact-dependent. For example, the defendant relies extensively on Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 43 A.3d 69 (2012), but in that case, the court stated the applicable principle in general terms that can encompass the present case:
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. (Internal quotation marks and citation, omitted; emphasis as in cited case.) 304 Conn. 515-16.
Similarly, the defendant relies on Craine v. Trinity College, 259 Conn. 625, 791 A.2d 518 (2002), a case that discussed in detail a then-recent decision of the United States Supreme Court:
The United States Supreme Court recently considered whether a plaintiff's prima facie case of discrimination . . . combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., supra, 530 U.S. at 140, 120 S.Ct. 2097. In Reeves, the Fifth Circuit Court of Appeals had held that a plaintiff who proves a prima facie case and introduces enough evidence for a jury to find pretext must also always introduce additional, independent evidence of discrimination or the defendant will be entitled to judgment as a matter of law. The Supreme Court rejected that conclusion, holding that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. The court specifically noted, however, that a factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The court concluded that [c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. The factors to be weighed when considering whether judgment as a matter of law will be appropriate in such cases are the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false; and any other relevant evidence. (Footnote, internal quotation marks and citations, omitted.) 259 Conn. 645.
Confirming the fact-intensive nature of the analysis, the court then went on to observe that " [c]onsidering these factors, we conclude that the plaintiff failed to adduce sufficient evidence to prove discrimination even though the plaintiff satisfied the requirements of a prima facie case." 259 Conn. 645-46.
The court does not sit as a seventh juror, and although the evidence was not overwhelming, it was sufficient to support the jury's determination that the plaintiff had been discharged because of her pregnancy status.
The second contention is refuted by extensive caselaw, supporting the right--if not obligation--of the court to direct a jury to reconsider when an inconsistency in interrogatory responses and the verdict is detected by the court. In Robbins v. Van Gilder, 225 Conn. 238, 238, 622 A.2d 555, 556 (1993), the court seemingly approved of the repeated efforts by the trial court to attempt to obtain consistency such as this court sought when it rejected the initial forms that had been tendered. Here, deeming the interrogatory responses and verdict form incompatible, the court directed the jury to reconcile the two forms, without suggesting in any way which document needed correction (or whether both might need correction).
More recently, in Hall v. Bergman, 296 Conn. 169 (2010) (cited in turn in Arnold v. Moriarty, 140 Conn.App. 872, 879 (2013)), the court stated:
It is well established that evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict is excludable in post-verdict proceedings as immaterial . . . That rule has been aptly described as applying the parol evidence rule to a jury's verdict, so that [the jurors'] outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively constituting the act. In reviewing the first set of verdict forms for the purpose of deciding the plaintiff's motion to set aside the verdict, the trial court effectively used them as interrogatories to construe the meaning of the jury's having found in favor of the plaintiff as to [the defendant] but awarding [the plaintiff] no damages. As the Appellate Court also explained, although it is understandable that the [trial] court wanted to evaluate everything before it [in] deciding the motion to set aside the verdict, the court, in so doing, effectively considered an aspect of the jury's deliberations. Consequently, the trial court was not free to consult the original verdict forms in determining whether to grant the plaintiff's motion . (Emphasis added; internal quotation marks and citations, omitted). 296 Conn. 179-80.
Just last week, this point was made yet again, in Rendahl v. Peluso, (April 28, 2017), a case in which the court emphasized the focus on the final, rather than an interim-and-not-accepted, " decision" of the jury:
The decision was effective as of the date of release of the slip opinion on April 28, 2017; it is scheduled for publication in the Connecticut Law Journal of May 9, 2017.
We further agree with the defendant that once the jury had returned to continue its deliberations, it had the power to change its initial plaintiff's verdict to a defendant's verdict on all counts. See Van Nesse v. Tomaszewski, 265 Conn. 627, 635, 829 A.2d 836 (2003) (" until the jury rendered a verdict that the court accepted, the jury was free to change its award regarding the award of noneconomic damages"); see also Towhill v. Kane, 147 Conn. 191, 194, 158 A.2d 251 (1960) (rejecting the claim that " that the jury, upon reconsideration, were powerless to change their verdicts on the issue of liability"). When the jury returned its final verdict, which was complete and legally consistent in all material respects, and thereafter, orally confirmed for the court that that was indeed their true and unanimous verdict, the court was required to accept that verdict under Practice Book § 16-31. Szlinsky v. Denhup, 156 Conn. 159, 164, 239 A.2d 505 (1968) (" [i]f a verdict in the proper form is returned by the jury after the jury's second reconsideration, it must be accepted by the court"), citing State v. Searles, 113 Conn. 247, 256, 155 A. 213 (1931). That, of course, is what the trial court did.
There was no internal inconsistency or ambiguity in the forms that were completed, signed and accepted by the court. Conversely, the court cannot consider earlier answers, deemed to present an inconsistency which answers were corrected to eliminate that inconsistency. There has been no other identified basis for impeaching the verdict. The defendant has not identified any possible basis for the court to depart from these established principles--there is no case-specific circumstance that might warrant rejecting the unanimity expressed by the jury in the interrogatory responses and verdict as accepted by the court.
In summary, the court was obligated to attempt to elicit reconciled forms from the jury, without giving any direction as to what the ultimate outcome should be. Earlier conflicting forms necessarily cannot be cited as authority for the existence of confusion--if it were allowed, then every case in which a court instructed a jury to correct some level of inconsistency before accepting the verdict would provide a basis for a challenge to the later harmonious result actually accepted. That is contrary to the principles established and articulated in the cited decisions.
Conclusion
The defendant has not carried its near-Herculean burden of establishing a valid basis for rendering judgment in favor of the defendant despite a verdict for the plaintiff, or in the alternative, setting aside the verdict and ordering a new trial. Accordingly, the motion for judgment notwithstanding the verdict, or in the alternative for a new trial, is denied.