author: SHELDON, J.

text:
    TOWN OF NORTH BRANFORD v. DANIEL POND ET AL.
    (AC 33029)
    DiPentima, C. J., and Beach and Sheldon, Js.

      Argued November 29, 2011 —
    officially released March 6, 2012

      John M. Gesmonde, town attorney, for the appellant (plaintiff).

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellees (defendants).
   Opinion

SHELDON, J.

In this arbitration case, the plaintiff, the town of North Branford, appeals from the judgment of the trial court denying its application to vacate an arbitration award entered by an arbitration panel (panel) in favor of the defendant union, AFSCME, Local 1303-18, Council 4 (union), which filed a grievance on behalf of the defendant town employee, Daniel Pond. The award overturned, for lack of just cause under the parties’ collective bargaining agreement (agreement), the plaintiffs dismissal of Pond from his safety sensitive position as a town highwayman after his second failure of a town mandated drug test. It ordered, instead, that Pond be suspended from his position without pay or benefits until such time as he took and successfully passed another drug test. The plaintiff claims on appeal that the court erred in denying its application to vacate by incorrectly finding that the award neither violated public policy nor contravened one or more of the statutory proscriptions of General Statutes § 52-418 (a). We disagree and affirm the judgment of the trial court.

The following factual and procedural history, as found by the trial court, is relevant to the issues on appeal. “The defendant . . . Pond, was employed as a department of public works highwayman by the plaintiff .... As a safety sensitive transportation employee, Pond was required to undergo periodic random drug testing pursuant to federal mandate. On February 15, 2008, Pond failed a drug test due to his inability to produce an acceptable urine sample within a three hour period. Pond subsequently passed nine drug tests. On March 18, 2009, Pond was ordered to take yet another drug test. Pond was unable to produce an acceptable sample upon arriving at the test facility. Pond was placed in a waiting room and allegedly instructed to drink water and remain in the area. The procedures for the testing facility required that any person leaving the waiting area during the testing process would be cited as having failed the test. Pond was away from the waiting area at the time he was called to take his test and was, thus, cited with a failure. Having failed two drug tests . . . Pond [was terminated by the plaintiff] pursuant to its drug and alcohol policy.

“Thereafter, Pond filed a union grievance, and the matter proceeded to arbitration pursuant to the collective bargaining agreement . . . between [the plaintiff] and [the union]. The submission presented to the arbitrators was: ‘Did the [t]own of North Branford terminate Daniel Pond for just cause consistent with the contract? If not, what shall the remedy be?’ On January 12, 2010, a three member arbitration panel ruled in Pond’s favor, finding that [the plaintiff] did not have just cause to terminate Pond. The arbitrators’ award directed Pond ‘to take and successfully pass a drug test at [the plaintiffs] expense in order to return to work. Until he passes said test and is returned to work, no pay or benefits are due [him].’ ”

On February 11,2010, the plaintiff filed with the Superior Court an application to vacate the arbitration award, claiming that the award violated public policy and contravened one or more of the statutory proscriptions of § 52-418 (a). Both parties filed memoranda in support of their respective positions, the plaintiff also submitted exhibits, and the court heard argument by the parties. Subsequently, on December 9, 2010, the court issued a memorandum of decision denying the application to vacate. This appeal followed.

“Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“The significance ... of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.

“Even in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005). We “review de novo the question of whether any of those exceptions apply to a given award. ” (Internal quotation marks omitted.) Board of Education v. Local R1-126, National Assn. of Government Employees, 108 Conn. App. 35, 40, 947 A.2d 371 (2008). Here, to reiterate, the plaintiff claims that the panel’s award in response to the unrestricted submission in this case violated public policy and contravened one or more of the statutory proscriptions of § 52-418. We will address each claim in turn.

I

The plaintiff claims initially that the challenged award violated public policy. Specifically, it argues that, by overturning its decision to terminate Pond’s employment after his second failure of a town mandated drug test, the award violated the well defined public policy of the Federal Highway Administration (FHWA) concerning the testing of transportation employees in safety sensitive positions for drug use in the workplace. Under that policy, as embodied in federal regulations promulgated by the FHWA pursuant to the Omnibus Transportation Employee Testing Act of 1991 (act), all employers of transportation workers in safety sensitive positions are required to test such employees for drug use and encouraged to impose strict discipline on those who fail such tests, subject only to limitations agreed to in applicable collective bargaining agreements. Here, because the plaintiffs drug and alcohol policy, which was adopted for the purpose of implementing the FHWA regulations, specifically authorizes the termination of any employee in a safety sensitive position who fails a second town mandated drug test, the plaintiff claims that the panel’s decision to overturn Pond’s dismissal, where the imposition of such discipline was not specifically prohibited by the parties’ agreement, violated the public policy of the FHWA regulations. We are not persuaded.

“A challenge that an award is in contravention of public policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . .

“A two-step analysis . . . [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator’s award violated the public policy. . . . We note that [t]he party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail . . . only if it demonstrates that the [arbitrators’] award clearly violates an established public policy mandate. ... It bears emphasizing, moreover, that implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators’ determinations, is the notion that the exception must not be interpreted so broadly as to swallow the rule.” (Citation omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 835-36, 6 A.3d 1142 (2010).

In rejecting the plaintiffs public policy challenge to the panel’s award, the trial court relied principally on the United States Supreme Court’s rejection of a similar challenge in Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000). In Eastern Associated Coal Corp., the plaintiff employer sought to vacate an arbitration award reinstating a highway worker who had twice tested positive for marijuana in employer mandated random drug tests. Id., 59. In support of its challenge, the employer relied on the same FHWA regulations on which the plaintiff relies in this case. In discussing those regulations, the Supreme Court observed that they “embody several relevant policies. They . . . include [a] polic[y] against drug use by employees in safety-sensitive transportation positions and in favor of drug testing. [However, t]hey also include a . . . policy favoring rehabilitation of employees who use drugs. And the relevant statutory and regulatory provisions must be read in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation.” Id., 65. So stating, the Supreme Court determined that the challenged award, which prescribed treatment for the employee as a condition of his reinstatement, did not “condone [the employee’s] conduct or ignore the risk to public safety that drug use by truck drivers may pose.” Id. Accordingly, it rejected the employer’s public policy challenge to the panel’s award as follows: “We recognize that reasonable people can differ as to whether reinstatement or discharge is the more appropriate remedy here. But both employer and union have agreed to entrust this remedial decision to an arbitrator. We cannot find in the Act, the regulations, or any other law or legal precedent an explicit, well defined, dominant public policy to which the arbitrator’s decision runs contrary.” (Internal quotation marks omitted.) Id., 67.

Consistent with the logic of Eastern Associated Coal Corp., the trial court here concluded that the panel’s decision to overturn Pond’s termination of employment for a second failed drug test and, instead, to suspend him, without pay or benefits, until he passed another drug test, did not violate any well defined and dominant public policy embodied in the FHWA regulations, the act under which they were promulgated, or other law. If, in the Supreme Court’s view, termination was not required by public policy for a highway worker in a safety sensitive position, who had twice tested positive for marijuana, then termination was not required by public policy for Pond, whose two test failures were only “technical,” in the sense that they were based on alleged failures by him to comply with testing procedures rather than proof that he had actually used illegal drugs. We agree with the trial court that, in light of the Supreme Court’s decision in Eastern Associated Coal Corp., the award here challenged — which promoted public safety by removing Pond from his safety sensitive position as a highway worker, without pay or benefits, until such time as he took and successfully passed another drug test — cannot be determined to have violated any well defined and dominant public policy embodied in the act, FHWA regulations or any other law or legal precedent. Accordingly, we conclude that the trial court did not err in rejecting the plaintiffs public policy challenge to the panel’s award when denying its application to vacate.

II

The plaintiff next claims that the panel’s award contravened the proscriptions of § 52-418 (a) in two discrete and different ways. First, it claims that the panel exceeded its powers in issuing the award, in violation of the first clause of § 52-418 (a) (4), because it failed, in so doing, to conform its finding of no just cause to terminate Pond’s employment to the parties’ submission. The submission, to reiterate, required it initially to determine if Pond had been dismissed “for just cause consistent with the contract.” The plaintiff claims, in particular, that the panel failed to consider the impact of article XIV of the parties’ agreement on its asserted right thereunder to enforce its own drug policy, for that article assertedly reserved to the plaintiff the exclusive right to enforce its own policies, practices, procedures and regulations with respect to its employees, without interference by the employees or their union, except as specifically provided in the agreement. The plaintiff claims that the panel’s decision here to overturn Pond’s dismissal was inconsistent with the contract because the contract did not specifically authorize any interference with its exclusive right to enforce its own drug policy.

The plaintiff also claims that the award violated the second clause of § 52-418 (a) (4) because the panel, in issuing it, so imperfectly executed its powers by not prescribing a remedy for Pond’s unjustified termination that was sufficiently final and definite to be enforced without further proceedings to clarify its true meaning. The plaintiff claims, in particular, that Pond’s suspension, without pay or benefits, until he took and successfully passed another drug test, was not sufficiently final or definite to be upheld because it failed to establish when, where or by what method Pond was to be tested before he could return to duty. For the following reasons, we disagree with both of the plaintiffs statutory claims.

A

We begin by setting forth the law governing claims that arbitrators have violated § 52-418 (a) (4) by exceeding their powers. “In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers. . . . The standard for reviewing a claim that the award does not conform to the submission requires what we have termed in effect, de novo judicial review. . . . Although we have not explained precisely what in effect, de novo judicial review entails as applied to a claim that the award does not conform with the submission, that standard best can be únderstood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented. Our review is limited to a comparison of the award to the submission. Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred.

“In determining whether an arbitrator has exceeded the authority granted under the contract, a court cannot base the decision on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract. The court must instead focus on whether the [arbitrator] had authority to reach a certain issue, not whether that issue was correctly decided. Consequently, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced. The arbitrator’s decision cannot be overturned even if the court is convinced that the arbitrator committed serious error. . . . Moreover, [e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” (Citations omitted; internal quotation marks omitted.) Teamsters Local Union No. 677 v. Board of Education, 122 Conn. App. 617, 623-24, 998 A.2d 1239 (2010).

Here, as noted, the first issue submitted by the parties to the panel for decision was whether Pond’s employment was terminated “for just cause consistent with the contract.” The panel’s award answered this question in the negative, ruling that the plaintiff had not terminated Pond’s employment for just cause because, although termination was among the authorized sanctions for failure to pass a second town mandated drug test, it was not a mandatory sanction, but only the most serious sanction available for such a violation under the contract. Weighing the severity of the sanction against the seriousness of Pond’s violation, which it characterized as a second technical failure of a town mandated drag test without proof of actual drag use, the panel concluded that the less severe sanction of suspension without pay or benefits until he took and passed another drag test was a more appropriate sanction than termination.

The plaintiffs challenge to the award, so rendered, is based on article XTV of the parties’ agreement, which reserves to the plaintiff “full control of the policies, practices, procedures and regulations with respect to the employee,” and provides further that the plaintiffs “actions with respect to such rights and responsibilities are not subject to review, except those specifically abridged or modified by this Agreement.” According to the plaintiff, this provision reserves exclusively to it the right to promulgate and to enforce policies for the discipline of its employees, without interference by the defendant union or its members through the grievance arbitration process, except as specifically abridged or modified by the agreement. Here, then, it claims that, in the absence of any provision in the agreement so authorizing, the panel lacked authority to prevent the plaintiff from enforcing its policy of terminating employees in safety sensitive positions who twice fail town mandated drug tests.

The trial court’s answer to this challenge, with which this court agrees, is that the plaintiffs argument ignores the major exception to the nonreviewability of its actions with respect to its employees, which is set forth in article XI of the agreement. Article XI expressly limits the rights of the plaintiff to discipline and to discharge its employees in several important ways. To begin with, § 11.0 of article XI imposes a just cause requirement on the plaintiff for the discharge or discipline of any employee for any reason. There are no exceptions to this requirement, for any class of employee, any kind of rules violation or any type of disciplinary action. Section 11.1 next mandates that “[a]ll disciplinary actions shall be applied in a fair manner and shall be consistent with the infraction for which disciplinary action is being applied,” and further provides that “[t]he severity of the disciplinary action to be taken shall depend on the seriousness of the employee’s violation. . . .” Here, again, there are no exceptions to this requirement of gradated, proportional discipline for any class of employee, any kind of alleged violation of the plaintiffs policies, practices and procedures or regulations, or any type of disciplinary action. Finally, § 11.2 provides that “[a]ll disciplinary actions shall be subject to the grievance procedure,” which, in turn, is set forth in article XII of the agreement. In light of these provisions, which plainly deprive the plaintiff of its otherwise unreviewable control over enforcement of its policies, practices, procedures and regulations by discharging or disciplining its employees, we cannot conclude that the arbitrators exceeded their powers under the contract by subjecting the plaintiffs termination of Pond’s employment to the same gradated, proportional review of its severity compared to the seriousness of violation of its drug policy that is required for “[a]ll” other disciplinary actions under § 11.2 of the contract. Because the award resulting from that analysis draws its essence from relevant provisions of the contract, the plaintiffs challenge to it on the ground that it fails to conform to the submission must be rejected.

B

Having found that the discharge of Pond was not for just cause, in that it was not proportional in severity to the seriousness of his violation of the plaintiffs drug policy, the panel imposed a lesser form of discipline on him, suspending him without pay or benefits until he took and satisfactorily passed another drug test. The plaintiff contends that this second portion of the panel’s award is not final or definite because it leaves open to the employee the important questions of when, where and by what method he is to be tested for drug use before he can return to work. The plaintiff takes the position that, with these questions left unanswered, the award is not final or definite because it does not fix the rights and responsibilities of the parties thereunder.

“d. discharge.”

“[A]n award must be final as to the matters submitted so that the rights and obligations of the parties may be definitely fixed. . . . Whether an award is definite and final presents a question of law that we review de novo.” (Citation omitted; internal quotation marks omitted.) Bridgeport City Supervisors’ Assn. v. Bridgeport, 109 Conn. App. 717, 728, 952 A.2d 1248, cert. denied, 289 Conn. 937, 958 A.2d 1244 (2008).

Although it is true that the award does not specify when, where or by what method Pond is to be tested before he can return to work, the criticism that such a sanction is indefinite is not warranted by the language of the plaintiffs own drug policy, which the sanction is intended to enforce. Under that policy, any employee who is relieved temporarily of his duties because of failing a town mandated drug test must obtain a verified successful test result as a precondition to returning to work. Under the language of the drug policy, the employee bears the burden of obtaining the verified successful test result, but there is no specification as to when, where or by what means he must do so. In short, it is the standard approach of the plaintiff in such matters to leave the details of retesting open, and, thus, it can hardly complain that this award, which follows the same retesting protocol, is too indefinite to enforce.

It is axiomatic that every reasonable presumption must be made in favor of a challenged arbitration award. Upon review of the submission in this case, we conclude that the award appropriately draws its essence from the agreement and answers the question presented to the panel in a sufficiently mutual, final and definite manner to warrant its enforcement. Therefore, we conclude that the plaintiff has failed to meet its burden of proving that the award violated any of the statutory proscriptions set forth in § 52-418 (a) (4).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants do not dispute that the failure to present for a drug test or the refusal to take a drug test may be considered a failed test.

       At one point in its argument to this court, the plaintiff suggested that the present submission was restricted because of the maimer in which it posed the threshold question to the arbitrator: “Did the [t]own of North Branford terminate Daniel Pond for just cause consistent with the contract?” The implication of this argument was that, by asking if the termination was for just cause “consistent with the contract,” the submission specifically constrained the panel to give effect to the provisions of the contract in defining and applying to this case the standard of just cause. We disagree. When a submission to an arbitration panel requires the panel to determine if a standard set forth in the parties’ agreement has been met, it is axiomatic that the arbitrators must construe and apply that provision in accordance with the entire agreement, as they interpret it. Just as their arbitral authority arises only from the agreement, so too must the limits of that authority derive their essence from the agreement. Accordingly, words in a submission confirming that the matter at issue must be determined in a manner consistent with the contract neither add to nor subtract from arbitral authority and, therefore, cannot be construed to restrict an otherwise unrestricted submission.

       In compliance with the requirements of the act, the FHWA adopted regulations, 49 C.F.R.§ 382, requiring employers to test employees with commercial driver’s licenses for the use of alcohol and controlled substances. As required, the plaintiffs policy implements these federal regulations.

       General Statutes § 52-418 provides in relevant part: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Article XIV, entitled, “Management Rights,” provides: “It is recognized that the Town, through its Town Manager, has and will continue to retain the rights and responsibilities to direct the affairs of its departments and agencies under his jurisdiction in all of their various aspects, except those specifically abridged or modified by this Agreement. Such rights and responsibilities, including, but not limited to, full control of the policies, practices, procedures and regulations with respect to the employee by virtue of statutory and Charter provisions; consequently, actions with respect to such rights and responsibilities are not subject to review, except those specifically abridged or modified by this Agreement.”

       Specifically, article XI, § 11.1 states: “All disciplinary action shall be applied in a fair manner and shall be consistent with the infraction for which disciplinary action is being applied. The severity of the disciplinary action to be taken shall depend on the seriousness of the employee’s violation. Disciplinary action shall include the following, but need not follow this order, in cases of serious or gross misconduct:
      “a. verbal warning;
      “b. written warning;
      “c. suspension without pay; and


source: Caselaw Access Project

license: Public Domain

text:
    MARIA E. CLAUDIO v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT ET AL.
    (AC 33409)
    Alvord, Bear and Sheldon, Js.

      Argued January 6 —
    officially released March 6, 2012

      Maria E. Claudio, pro se, the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).
   Opinion

SHELDON, J.

The plaintiff, Maria E. Claudio, appeals from the judgment of the trial court dismissing her appeal from the decision of the employment security board of review (board). The board affirmed the decision of the defendant administrator of the Unemployment Compensation Act, General Statutes § 31-222 et seq., which denied the plaintiffs application for unemployment compensation benefits. On appeal, the plaintiff claims that the court erred in affirming the conclusion of the board, which was based on the factual findings of the employment security appeals referee (referee), that the plaintiff was ineligible for unemployment compensation benefits on the ground that the plaintiff was discharged by her employer for wilful misconduct, pursuant to General Statutes § 31-236 (a) (2) (B), because she had missed more than three consecutive days of work and did not call the employer. We affirm the judgment of the trial court.

The referee made the following findings of fact in her written decision: “The [plaintiff] worked for the employer from May 10, 1990, until she began a scheduled vacation on December 10, 2009, and the employer removed her from the payroll when she did not report to work by January 8, 2010. . . . The employer operates a childcare facility. The employer is required by law to staff the childcare center with a specific number of employees. The [plaintiff] most recently worked in the childcare facility. . . . The employer provided the [plaintiff] a policy. The policy explains that the employer needed medical documentation for absences [of] more than three days. . . . During 2009, the [plaintiff] asked the employer for time off for three weeks beginning December 14, 2009. . . . The employer approved the claimant’s request for time off for two weeks, December 14, 2009 through December 25, 2009. [Linda] Johnson [the director of childcare and the plaintiffs supervisor] told the [plaintiff] that she did not approve the third week. . . . The employer scheduled the [plaintiff] to return to work on December 28, 2009. ... On December 27 or 28, 2009, the [plaintiff] called work and left a message that she was not returning to work because she was in Puerto Rico and her uncle had died. . . . Johnson . . . spoke to the [plaintiff]. The [plaintiff] said she was having health issues and did not know when she was going to return. Johnson told the [plaintiff] to call her the next day and let her know when she was going to return to work. She told the [plaintiff] to provide the employer medical documentation. ... On December 28, 2009, the [plaintiff] attended a funeral service. The [plaintiff] [also] visited a doctor. . . . Between December 28, 2009 and January 8, 20[10], the [plaintiff] did not call the employer. She did not send the employer any medical documentation. The employer had scheduled her to work December 28, 29, 30 and 31, 2009, and January 4 to 8, 2010. The [plaintiff] had a working cell phone with her [in Puerto Rico]. ... On January 4, 20[10], the [plaintiff] received a doctor’s note excusing her from work from December 28, 20[09] until January 11, 2010. She did not forward the employer a copy of the doctor’s note. . . . On January 8, 2010, the employer mailed the [plaintiff] a termination letter. . . . On January 9, 2010, the [plaintiff] received a letter from the employer explaining she had been terminated after she did not report to work or call the employer for more than a week. . . . The employer terminated the [plaintiff] effective January 11, 2010, for failing to contact the employer or provide the employer medical documentation.”

On January 27, 2010, the plaintiff filed a claim for unemployment compensation benefits, which the defendant denied. The plaintiff appealed the matter to the referee, who heard her claim de novo. The referee “did not believe the [plaintiffs] testimony that she was too ill to call the employer as the [plaintiff] testified that she went to a funeral and went to the doctor on numerous occasions during her extended absence.” Thus, the referee concluded that the plaintiff did not have good cause for failing to report her absences to her employer and, because the absences constituted wilful misconduct in the course of employment, the plaintiff was ineligible for unemployment compensation benefits. The plaintiff then appealed that determination to the board. In its October 14, 2010 memorandum of decision, the board stated: “Based on the existing record, we find that the referee has adequately addressed the [plaintiffs] contentions. Moreover, the parties have not offered any argument in support of or in opposition to the appeal which would disturb the referee’s findings of fact. We further find that the findings are supported by the record, and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act. Accordingly, we adopt the referee’s findings of fact and decision, except that we modify the date in the referee’s finding of fact [number 10] to: ‘December 27, 2009.’ ”

From that judgment, the plaintiff appealed to the Superior Court on December 7, 2010. On December 21, 2010, the court issued a briefing schedule whereby the plaintiff was to file her brief by February 1, 2011, and the defendant was to file its brief by March 1, 2011. The notice issued to the parties further indicated that the matter would be taken on the papers on March 1, 2011, unless either party requested oral argument. The plaintiff did not file a brief, but, instead, on March 1, 2011, she filed a request for argument in which she asked the court to consider the circumstances surrounding her termination and to look at her “verification,” which she alleged had not previously been considered. By way of a memorandum of decision dated March 30, 2011, the court dismissed the plaintiffs appeal. This appeal followed.

On appeal to this court, the plaintiff claims that she was not afforded the right to present her case to any of the adjudicative entities that determined that she was ineligible for unemployment compensation benefits, including the trial court, and that the facts found by the referee, and adopted by the board, do not support the conclusion that she was ineligible for unemployment benefits due to wilful misconduct attributable to her. We disagree.

“To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence. ... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion. . . .

“[The court] considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Tosado v. Administrator, Unemployment Compensation Act, 130 Conn. App. 266, 274-75, 22 A.3d 675 (2011).

Our thorough review of the record reflects that the plaintiff was afforded an opportunity to present her claims, and introduce evidence in support thereof, before the defendant and the referee. The plaintiff presented documentation in support of her claims that she attended a funeral and became ill when she was in Puerto Rico. The referee credited the plaintiffs claims in that regard. The plaintiff, by her own admission, however, did not call her employer after the one call she made, on December 27 or 28, 2009, coincident with the day that she was expected to return to work, despite knowing that her employer was expecting a follow-up telephone call. Thus, although the referee accepted the plaintiffs claims that she had attended her uncle’s funeral and had fallen ill while she was in Puerto Rico, which delayed her return to work, the referee rejected the plaintiffs claim that she was too ill to call her employer every other day that she was out of work. The referee, in her role as a fact finder, acted within her discretion in making that credibility determination and it is axiomatic that it is not the role of the trial court or this court, in administrative appeals, to second guess the fact finder’s determination as to the credibility of witnesses. The plaintiff also was afforded the opportunity to be heard at the hearing before the board and, at that hearing, she “reiterate[d] the contentions that she raised at the referee’s hearing.” When the plaintiff appealed to the Superior Court, the court issued a briefing schedule, but the plaintiff did not file a brief in support of her claims with the court. Rather, she filed a motion in which she indicated that she felt that she had been treated unfairly and that her termination was unjustified. In light of the limited scope of the court’s review in administrative matters, even if the court had allowed the plaintiff to present oral argument, the court was bound by the factual findings of the referee and the board. The court determined that the board’s decision was not unreasonable, arbitrary or illegal, and, accordingly, affirmed that decision. On the basis of our review of the record in this matter, we cannot conclude that the court erred in doing so.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs employer, YWCA of New Britain, was also named as a defendant in this action but is not a party to this appeal. We refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       General Statutes § 31-236 (a) (2) (B) provides in relevant part that an individual is not eligible for unemployment compensation benefits if “in the opinion of the administrator, the individual has been discharged . . . [for] wilful misconduct in the course of the individual’s employment . . . .” “[W]ilful misconduct means deliberate misconduct in wilful disregard of the employer’s interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee’s incompetence . . . .” (Internal quotation marks omitted.) General Statutes § 31-236 (a) (16); see also Regs., Conn. State Agencies § 31-236-26.

       The plaintiff also filed with the board a request for a further evidentiary hearing to produce “further verification of why [she] should be able to get [her] job back.” She sought to introduce copies of her cell phone bill and letters from former colleagues. The board denied the plaintiffs request on the ground that she had failed to establish good cause for a further hearing because she had not shown that the evidence that she was seeking to introduce was newly discovered.

       That modification simply corrected the date from 2010 to 2009.

       In her preliminary statement of issues filed with this court on May 26, 2011, the plaintiff listed the following issues on appeal: “(1) Unable to articulate appeal in Superior Court; (2) filing a motion for articulation under [Practice Book §] 66-5 for appellate review of the trial judge’s action; (3) to be able to present evidence and pro[of] of the unlawfulness [of the] termination of my job; and (4) to be able to file for unemployment compensation.”


author: BEACH, J.

text:
    DONNA YEAGER v. MARIA ALVAREZ ET AL.
    (AC 32702)
    Lavine, Beach and Alvord, Js.

      Argued November 18, 2011 —
    officially released March 6, 2012

      Dana M. Hrelic, with whom was Karen L. Dowd, for the appellant (plaintiff).

      Bridget M. Ciarlo, for the appellee (intervening plaintiff).
   Opinion

BEACH, J.

This case presents the issue of how proceeds of a negligence action are to be distributed between the employer, which intervened for the purpose of recovering workers’ compensation payments, and the employee’s attorney. We hold that the “reasonable and necessary” expenditures recoverable under General Statutes § 31-293 (a) are different from the enumerated fees and costs recoverable from an opposing party in a civil action. The plaintiff-employee, Donna Yeager, appeals from the trial court’s judgment granting the motion of the intervening plaintiff-employer, Priority Care, Inc. (Priority Care), for apportionment and ordering that $170,000 be paid to Priority Care and $30,000 remain in escrow for future determination of appellate legal fees. On appeal, the plaintiff claims that the court erred by failing to deduct from the amount available for apportionment to Priority Care all her reasonable and necessary expenditures incurred in effecting recovery pursuant to § 31-293 (a). We reverse the judgment of the trial court and remand the matter for further proceedings.

The court found the following facts in its memorandum of decision issued July 19,2010. “This action arises out of a motor vehicle accident that occurred in Waterbury ... on September 7, 2006, wherein the plaintiff, Donna Yeager, while in the course of her employment was struck from behind by an automobile operated by one defendant, Maria Alvarez. On May 2, 2007, the plaintiffs employer Priority Care . . . moved to intervene because it had become obligated to make certain payments to and on behalf of the plaintiff in accordance with the workers’ compensation laws of Connecticut. This motion was granted on May [14], 2007, by Agati, J. On June 4, 2009, after a trial to a jury . . . the plaintiff was awarded $396,242 in economic damages and $983,998 in noneconomic damages for a total award of $1,380,240. Thereafter, the defendants’ insurance company tendered $300,000 — the full amount of the [defendants’] insurance policy. By agreement of [Priority Care’s] counsel and counsel for the plaintiff, the plaintiffs attorney was allowed to take the sum of $100,000 as a legal fee, leaving the remaining $200,000 in escrow.

“[Priority Care had] . . . filed a motion for apportionment on August [13], 2008, and now seeks payment of all the remaining funds pursuant to ... § 31-293, part of the Workers’ Compensation Act. On March 23, 2010, counsel for the plaintiff filed a memorandum in opposition to this motion. The court held a hearing on this matter on March 25, 2010. At this hearing, [Priority Care] notified the court that as of March 25, 2010, it had paid the sum of $235,179.97, consisting of $119,142.23 in medical payments and $116,037.74 in compensation benefits. In addition, the plaintiff has a check for $19,166.66 for costs pursuant to the court’s original ruling on the bill of costs and the plaintiffs motion for review of the order of taxation. On April 9, 2010, the plaintiff filed an affidavit of her attorney, Michael D’Am-ico, with thirty-five exhibits to support her request for additional attorney’s fees and costs. On May 7, 2010, [Priority Care] filed a response to the plaintiffs March 23, 2010 memorandum and an objection to the affidavit filed by the plaintiff. The plaintiff filed a reply to [Priority Care’s] memorandum on May [19], 2010.”

The court concluded, inter aha, that “the plaintiff has improperly raised issues of additional costs at a hearing for a motion for apportionment.” It cited Practice Book § 18-5, which provides in relevant part: “(a) Except as otherwise provided in this section, costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed. ...(b) Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk. . . .” The court held that “the plaintiffs costs are incorrectly before the court” because (1) “no formal motion to review the costs taxed is before the court”; (2) “the plaintiff has already had one opportunity to move the court to approve her bill of costs and most of these expenses were not raised at that time”; and (3) “Practice Book § 18-5 requires a motion to review to be brought within twenty days of a ruling,” which motion was not brought by the plaintiff, or alternatively, “[e]ven if the court treated the plaintiffs argument as its own motion,” it was not timely. Applying the language of § 31-293 (a), the court held that Priority Care was entitled to the remaining $200,000 in satisfaction of the $235,179.97 hen. It also ordered that $30,000 remain in escrow for reasonable appellate attorney’s fees.

Subsequently, the plaintiff filed a motion to reargue the court’s decision, and Priority Care filed motions for payment, for reargument and reconsideration of the order of escrow of $30,000 and for articulation and/or clarification. The court granted Priority Care’s motion for payment and denied both parties’ motions for rear-gument and reconsideration as well as Priority Care’s motion for articulation and/or clarification. The plaintiff thereafter filed the present appeal from the order granting the motion for apportionment, and Priority Care filed a cross appeal, which was dismissed for lack of a final judgment because the amount of attorney’s fees had not yet been determined.

The plaintiff argues that the court erred by failing to deduct her reasonable and necessary expenditures incurred in effecting recovery against the defendants pursuant to § 31-293 (a) prior to apportioning the damages to Priority Care. Specifically, she argues that the “reasonable and necessary” expenditures recoverable under § 31-293 (a) are different from the enumerated fees and costs recoverable by a party in a civil action pursuant to General Statutes § 52-257. At oral argument before this court, the plaintiff asserted that if she were to prevail, the proper remedy is a remand to the court for a hearing to determine which, if any, of her claimed expenditures are reasonable and necessary pursuant to § 31-293 (a). We agree with the plaintiff.

Because this issue involves examining § 31-293 (a) and a rule of practice, it presents an issue of interpretive construction over which we exercise plenary review. See Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739, 744, 22 A.3d 1251 (2011); see also Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010) (“[t]he interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation” [internal quotation marks omitted]). “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. ... In seeking to determine [the] meaning [of a statute] . . . [we] . . . first . . . consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, 297 Conn. 391, 399, 999 A.2d 682 (2010).

We begin, therefore, with the language of § 31-293 (a). Section 31-293 (a) is part of the Workers’ Compensation Act; General Statutes § 31-275 et seq.; and provides in relevant part: “If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. ... If the damages, after deducting the employee’s expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. . . .”

The language of the statute and its relationship to Practice Book § 18-5 are clear. Section 31-293 (a) provides in relevant part that an employer that pays workers’ compensation benefits to an injured employee is entitled to reimbursement for those payments “after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. . . .” (Emphasis added.) The court concluded that, because the plaintiff did not list in her bill of costs payable by the defendants the additional expenses she sought to have deducted from the damages apportionment pursuant to § 31-293 (a), she could not properly request such expenses at a hearing for a motion for apportionment.

The language of § 31-293 (a) and Practice Book § 18-5 does not support such a reading. The court relied on Practice Book § 18-5 (a), which provides in relevant part that “costs may be taxed by the clerk in civil cases . . . .” Various statutory provisions, including § 52-257 (fees of parties in civil actions), General Statutes §§ 52-258 (jury fees), 52-259 (court fees), 52-260 (witness fees) and 52-261 (fees and expenses of officers and persons serving process or performing other duties), list specific enumerated costs that are recoverable from a defendant in a bill of costs. Section 31-293 (a) provides for the deduction of “reasonable and necessary expenditures” from the apportionment of damages to an employer-coplaintiff. Section 31-293 (a) does not enumerate recoverable expenditures; rather, it leaves to the discretion of the court to determine which expenditures are reasonable and necessary. Cf. Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 429, 922 A.2d 1056 (2007) (“the costs to be included in a bill of costs generally are of a type that may be granted automatically by the court clerk”).

We note also the absence of a cross-reference between § 31-293 (a) and the statutes providing enumerated costs; the plain language of the § 31-293 (a) does not place a restriction on reasonable and necessary expenditures rendering them coterminous with those costs listed in a bill of costs. The legislature knows how to create limitations, and it has chosen to limit expenditures recoverable under § 31-293 (a) only by their reasonableness and necessity. See Cruz v. Montanez, 294 Conn. 357, 370, 984 A.2d 705 (2009) (“we may presume that, if the legislature had intended to limit the apportionment of damages under § 31-293 [a] . . . it would have done so explicitly”). Accordingly, by its terms, § 31-293 (a) is not limited to the enumerated costs recoverable in a bill of costs.

This reading is further supported by the distinction between “costs” and “expenditures.” Our Supreme Court has stated that “costs are a creature of statute, and, therefore, a court may not tax a cost unless it is clearly empowered to do so . . . .” Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 262, 943 A.2d 430 (2008). Further, “[t]he term ‘costs’ is a term of art having a limited, well-defined legal meaning as statutory allowances to a prevailing party in a judicial action in order to reimburse him or her for expenses incurred in prosecuting or defending the proceeding. . . . Costs are not synonymous with expenses. Because ‘costs’ are limited to necessary expenses, they may not include everything that a party spends to achieve victory; rather, the term ‘expenses’ refers to those expenditures made by a litigant in connection with an action that are normally not recoverable from the opponent but must be borne by the litigant absent a special statute or the exercise of judicial discretion.” (Emphasis added.) 20 Am. Jur. 2d 7-8, Costs § 1 (2005). Whereas a bill of costs ordinarily includes only allowances that fit into the limited classification of “costs,” § 31-293 (a) uses the broader term “expenditures,” which includes expenses ordinarily not recoverable from the opposing party. Such a distinction buttresses our finding of error in the conclusion that claims for expenditures under § 31-293 (a) are limited to those costs listed in a bill of costs.

Our construction of § 31-293 (a) does not lead to an absurd or unworkable result. On the contrary, our holding is consistent with avoiding redundancy among statutes. “It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions.” (Internal quotation marks omitted.) Lopa v. Brinker International, Inc., 296 Conn. 426, 433, 994 A.2d 1265 (2010). If reasonable and necessary expenditures pursuant to § 31-293 (a) were limited to those costs sought in a bill of costs, a question would arise as to the practical purpose of recovery under § 31-293 (a). In effect, if granted, the costs sought in a bill of costs already would have been paid by the opposing party, and a party would not need to request them under § 31-293 (a). Such a result would render the deduction of reasonable and necessary expenses redundant. “Because [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.” (Internal quotation marks omitted.) Id. Ordinarily, the only costs recoverable pursuant to a bill of costs are those that are enumerated; therefore, it would be illogical to require a party to include in a bill of costs all expenditures that may have been reasonable and necessary.

Additionally, our holding is consistent with two principal purposes of § 31-293 (a), “namely, to ensure that an employer is reimbursed for its expenses and to prevent an injured employee from obtaining a double recovery.” Cardenas v. Mixcus, 264 Conn. 314, 326, 823 A.2d 321 (2003). That is, an employee should not receive workers’ compensation payments in addition to the full amount of damages for the same injury from a third party tortfeasor. Allowing a plaintiff the opportunity to recover reasonable and necessary expenditures she incurred by pursuing an action against the party responsible for the injury encourages a fair result in furtherance of “vindicat[ing] both the employee’s interest in receiving the full scope of tort damages that remain uncompensated by a workers’ compensation award and the employer’s interest in being reimbursed for payments made because of the third party’s malfeasance.” Libby v. Goodwin Pontiac-GMC Truck, Inc., 42 Conn. App. 200, 206, 678 A.2d 995 (1996), aff'd, 241 Conn. 170, 695 A.2d 1036 (1997); see Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 24, 682 A.2d 99 (1996) (“the legislature is presumed to have intended a just and rational result” [internal quotation marks omitted]); 6 A. Larson, The Law of Workmens’ Compensation (2011) § 110.02 (discussing fairness achieved by reimbursement of compensation to employer and providing employee with excess). By choosing to join the action of the employee, the employer benefits by recovering from the judgment any workers’ compensation benefits it paid to the employee, while the employee bears the litigation expenses during trial. Our conclusion is not inconsistent with the purpose of reimbursing an employer, that has not contributed to the expenses of litigation, or with the purpose of preventing double recovery of the plaintiff, whose recoverable damages are subject to reduction by the amount of the workers’ compensation payments of the employer. Accordingly, allowing the plaintiff the opportunity to be reimbursed for reasonable and necessary expenditures not limited to those she listed in a bill of costs does not thwart the objectives of § 31-293 (a).

In contrast to § 31-293 (a), taxation of costs pursuant to Practice Book § 18-5 serves to transfer costs “in a civil action where there is a prevailing party in whose favor a decision or verdict is rendered and judgment entered.” Triangle Contractors, Inc. v. Young, 20 Conn. App. 218, 221, 565 A.2d 262, cert. denied, 213 Conn. 810, 568 A.2d 795 (1989) (construing Practice Book § 412 [now § 18-5]). A prevailing party is “one in whose favor a judgment is rendered, regardless of the amount of damages awarded.” 20 Am. Jur. 2d 15, supra, § 11. In the present case, the parties involved are a plaintiff and an intervening plaintiff, rather than opposing parties. Neither is nonprevailing. See Barry v. Quality Steel Products, Inc., 280 Conn. 1, 24, 905 A.2d 55 (2006) (“fees and costs . . . ordinarily are awarded to the party that prevails in the case and, until there is a prevailing party, they do not arise” [internal quotation marks omitted]). Section 31-293 (a) and Practice Book § 18-5 have distinct purposes, and we do not apply one to limit the other in contravention of the clear and unambiguous language of § 31-293 (a).

The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff brought this action against the defendants Maria Alvarez and Benito Alvarez doing business as Benny’s Used Cars, also known as Benny’s Auto Repair, Benny’s Used Cars and Benny’s Auto Repair. Only the plaintiff and Priority Care are parties to this appeal.

       The plaintiff originally sought $28,946.16 in her bill of costs. The court granted a portion of the plaintiffs bill of costs and subsequently granted the plaintiffs motion for review, granting an additional $10,725 for expert witness fees.

       At the hearing on the motion for apportionment, the plaintiffs counsel indicated that examples of expenditures incurred by the plaintiff in the present case that would not be taxable included production and copying of medical records, obtaining final reports from the plaintiffs treating doctors and conferences with medical providers.

       Priority Care filed a motion for an order requiring the plaintiff immediately to pay Priority Care $137,724.56 — the portion of the $200,000 that did not include the $30,000 in escrow and the $32,275.44 that the plaintiff argued in her motion to reargue that she was entitled to for expenses incurred in effecting the recovery.

       On July 21, 2009, the plaintiff filed another appeal from the underlying action regarding the ruling of the court to strike the plaintiffs offer of compromise on the ground that she had not made full disclosure of the extent of her injuries, and, thus, the defendants could not properly evaluate the offer. Yeager v. Alvarez, 302 Conn. 772, 774, 31 A.3d 794 (2011). The appeal was transferred to our Supreme Court, and it issued its decision on November 22, 2011. It held that the court had the authority to strike an otherwise valid offer of compromise from the case file as a discovery sanction, but the trial court abused its discretion when it struck the offer of compromise from the record as a sanction for the plaintiffs alleged failure to fulfill her disclosure obligations. Id., 790-91. At oral argument before this court, the parties agreed that our Supreme Court decision has no bearing on the present case.

       In the present case, costs were taxed by the clerk pursuant to §§ 52-257 and 52-260.


author: ROBINSON, J.

text:
    ROBERTO HERNANDEZ v. STATE OF CONNECTICUT ET AL.
    (AC 32872)
    Lavine, Robinson and Bishop, Js.

      Argued November 30, 2011
    — officially released March 6, 2012

      A. Paul Spinella, for the appellant (plaintiff).

      Linsley J. Barboto, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Roberto Hernandez, appeals from the judgment of the trial court granting the motion to dismiss the complaint as moot filed by the defendants, the state of Connecticut, Richard Blumenthal, then attorney general, and William H. Car-bone, the executive director of court support services division. On appeal, the plaintiff contends that the court improperly determined that his claims did not fall within the capable of repetition, yet evading review exception to the mootness doctrine. We affirm the judgment of the trial court.

The plaintiff alleged the following in his complaint. The plaintiff is an indigent resident of the state of Connecticut. On February 7, 2005, the plaintiff was arrested in connection with a robbery that had taken place on January 26, 2005. During his arraignment, the bail commissioner indicated that the plaintiff had “ ‘no means of support’ ” but proceeded to recommend a bail amount of $25,000. The court set the plaintiffs bail at $100,000 cash or surety. On April 6, 2005, the plaintiff submitted an application to the Superior Court pursuant to General Statutes § 54-69 seeking a reduction in bail to as low as the court deemed appropriate. Such request was denied by the court. The plaintiff was unable to post the $100,000 bail and was incarcerated as a pretrial detainee for approximately one year. On February 3, 2006, before the commencement of the criminal trial, all charges against the plaintiff were dismissed and the plaintiff was released.

The plaintiff filed the present action on September 23,2008, and later filed an amended complaint on February 23, 2009. The amended complaint alleged four counts, all of which are premised on the contention that the Connecticut statutes governing pretrial release, set forth in General Statutes § 54-63a et seq., violate both the federal and state constitutional rights of indigent detainees. The plaintiff sought a declaratory judgment that the Connecticut laws that govern bail are unconstitutional under the federal and/or state constitutions, a permanent injunction and any equitable relief the court deemed appropriate. The plaintiffs complaint alleged that, although the plaintiff is no longer a pretrial detainee, his challenges to the bail system are not moot because they are capable of repetition, yet likely to evade judicial review. The plaintiff asserted that “[u]pon information and belief, approximately one hundred forty (140) indigent [detainees] per year are unable to secure pretrial release under Connecticut’s bail system because financial conditions are set for bail and/or bail is determined by the ‘no greater amount than necessary’ to secure appearance standard, which does not properly consider financial mean[s] for actually securing release, and, like the plaintiff, all of the approximately one hundred forty (140) indigent [detainees] unable to secure bail had their charges dropped or nolled before trial.”

On December 5, 2008, the defendants filed a motion to dismiss on the basis that the court lacked subject matter jurisdiction. Specifically, the defendants contended that the plaintiffs claims were moot, the plaintiff lacked standing and the plaintiffs claims for equitable relief were barred because he had an adequate remedy at law. The plaintiff filed an objection to the defendants’ motion to dismiss, contending that he had standing and that he had no adequate remedy at law to bring his equitable claim for injunctive relief. The plaintiff also argued that the issue of whether the bail system is unconstitutional satisfies the capable of repetition, yet evading review exception to the mootness doctrine. The court heard argument on the motion to dismiss on June 28, 2010.

The court granted the defendants’ motion to dismiss on September 22, 2010. In its memorandum of decision, the court first set out the statutory scheme that governs pretrial release in Connecticut. It then discussed the defendants’ contention that the plaintiff lacked standing to assert his claims. The court determined that the plaintiff satisfied the two-prong test for classical aggrievement and, therefore, had standing to bring the suit.

The court next addressed the defendants’ contention that the plaintiffs claims were moot, and whether the capable of repetition, yet evading review exception applied. The court determined that “the plaintiff has failed to allege facts sufficient to satisfy the first prong of the capable of repetition, yet evading review exception to the mootness doctrine. The complaint does not state facts which if proven could establish that pretrial detention is of such a limited duration that there is a strong likelihood that the substantial majority of cases raising a question about the validity of the bail system would become moot before litigation could be concluded. . . . There is nothing to indicate that such a constitutional challenge will evade review in future cases.” The court noted that different cases will involve varying lengths of time between arrest and trial, so that some pretrial detainees may have sufficient time to mount a meaningful challenge to the statutes governing pretrial release. Further, the court addressed the plaintiffs contention that a constitutional challenge could not be brought while a detainee was incarcerated pretrial because an accused has a right to a speedy trial under article first, § 8, of the constitution of Connecticut and the sixth amendment of the federal constitution. In response, the court asserted that “[e]ven though our judicial system seeks to resolve matters expeditiously, it is axiomatic that for various reasons, including delays attributable to the defense, some suspects may experience a longer time between their arrest and their trial than others. . . . Because the right to a speedy trial translates to various periods of time between arrest and trial and may be waived in its entirety, it does not present an inherent time constraint on the constitutional issue asserted in the present case.” The court found that the plaintiffs claims were moot and did not fall within the capable of repetition, yet evading review exception to the mootness doctrine, and accordingly, dismissed the plaintiffs claims. This appeal followed.

We begin by setting forth the relevant standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [grant] of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for . . . a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Citations omitted; internal quotation marks omitted.) Peruta v. Commissioner of Public Safety, 128 Conn. App. 777, 782-83, 20 A.3d 691, cert. denied, 302 Conn. 919, 28 A.3d 339 (2011).

“Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . .

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Citation omitted; internal quotation marks omitted.) Dean-Moss Family Ltd. Partnership v. Five Mile River Works, Inc., 130 Conn. App. 363, 370, 23 A.3d 745 (2011).

“Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).

“The first element in the analysis pertains to the length of the challenged action. Although this court has not expressly addressed a time requirement in its previous cases, such a requirement is inherent in the overall statement of the doctrine itself. Most cases in which review has been undertaken despite a claim of mootness implicitly recognize the existence of functionally insurmountable time constraints. . . . The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.” (Citations omitted.) Id., 383-84.

The plaintiff maintains that due to an individuars right to a speedy trial, pretrial detention is of an inherently limited duration, and as a result, a substantial majority of cases challenging the constitutionality of pretrial detention will become moot before those cases can be fully litigated. The plaintiff argues that Practice Book § 43-39 (c) limits the time between information or arrest and trial to twelve months, and § 43-39 (d) limits the time to eight months if the individual has been incarcerated pending trial. On the basis of these time limitations, the plaintiff maintains that it is very likely that the substantial majority of cases challenging the constitutionality of pretrial detention will become moot before they can be fully litigated.

The complaint does not set forth facts that, if proven, would demonstrate that pretrial detention is of such a limited duration that there is a strong likelihood that a substantial majority of cases challenging the bail system would become moot before being fully litigated. The plaintiff contends that there are approximately 140 indigent detainees per year who are unable to secure bail and whose charges are dropped or nolled before trial. On the basis of an individual’s right to a speedy trial, the plaintiff argues that a substantial majority of cases challenging the constitutionality of pretrial detention will become moot before those cases can be fully litigated. Aside from these conclusory assertions, however, the plaintiff has provided no factual or evidentiary support for his assertion that the substantial majority of cases challenging the constitutionality of the bail system will become moot before appellate litigation can be concluded. The duration of a pretrial detention can vary by individual. Although Practice Book § 43-39 (c) and (d) set forth limitations on the period of time between arrest and trial, Practice Book § 43-40 provides that specific time periods are excluded from determining the time within which trial must commence. Further, the plaintiff fails to recognize that some individuals may choose to waive their right to a speedy trial, or, rather, choose to go forth with trial, and thus, necessarily, their pretrial detention will invariably be longer. Moreover, the plaintiff presented no facts or evidence concerning the 140 indigent detainees mentioned in his complaint, such as the amount of time those individuals were in jail, whether they were similarly situated to the plaintiff or whether they sought a reduction in bail. Nor did the plaintiff present any facts or evidence concerning the time a detainee spends incarcerated before trial is completed or the charges are nolled or dropped. See In re Forrest B., 109 Conn. App. 772, 776, 953 A.2d 887 (2008) (“ [i]n support of her argument that the capable of repetition, yet evading review exception applies to her case, the respondent has offered no evidence that most cases challenging a temporary custody order are, by their very nature, of such a limited duration that there is a strong likelihood that they will become moot before appellate litigation can be concluded”). The court’s conclusion that the challenged action does not satisfy the first prong of the exception was therefore legally and logically correct and supported by the facts that appear in the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       Both Blumenthal and Carbone were sued in their official capacities.

       The plaintiff filed a lawsuit in the United States District Court for the District of Connecticut against Carbone, the city of Hartford and various members of the Hartford police department for alleged federal and state constitutional violations arising from his arrest and detention. Carbone filed a motion to dismiss. The court dismissed, without prejudice, the plaintiffs “ ‘as applied’ ” constitutional claims against Carbone for monetary and injunctive relief after determining that they were moot and there had been no showing that the duration of any pretrial detention would likely be too short as to preclude an incarcerated individual from fully litigating a claim so as to fit within the capable of repetition, yet evading review exception. Hernandez v. Carbone, 567 F. Sup. 2d 320, 331 (D. Conn. 2008). The court abstained from deciding the facial constitutional claims, pursuant to Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). Hernandez v. Carbone, supra, 332-33. After dismissing the federal claims against Carbone, the court declined supplemental jurisdiction over the plaintiffs state constitutional claims. Id., 333-34.

       Count one alleges that the statutory scheme violates the eighth amendment of the federal constitution. Count two alleges that the statutory scheme violates the fourteenth amendment of the federal constitution. Count three alleges that the statutory scheme violates article first, § 8, of the Connecticut constitution. Lastly, count four alleges that the statutory scheme violates article first, § 20, of the Connecticut constitution.

       On April 17, 2009, the American Civil Liberties Union Foundation of Connecticut filed an application to appear as amicus curiae and to file a brief in opposition to the defendants’ motion to dismiss. The foundation’s application was granted by the court on May 4, 2009, and the foundation filed a memorandum of law in opposition to the defendants’ motion to dismiss on August 3, 2009.

       The court did not address the defendants’ alternative ground for dismissal, namely, that the plaintiff had an adequate remedy at law.

       Under both the federal and Connecticut constitutions, a criminal defendant has a right to a speedy trial. See U.S. Const., amend. VI (“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”); Conn. Const., art. I, § 8 (“[i]n all criminal prosecutions, the accused shall have a right ... to a speedy, public trial by an impartial jury”).

       We also note that under Practice Book § 78a-l, an accused individual may petition the Appellate Court for review of any trial court order concerning that individual’s release. Section 78a-l provides in relevant part: “Any accused person or the state, aggrieved by an order of the superior court concerning release, may petition the appellate court for review of such order. Any such petition shall have precedence over any other matter before the appellate court and any hearing ordered by the court shall be held expeditiously with reasonable notice. . . .” Because we are upholding the court’s decision on an alternative ground, we need not decide whether this provision provides an additional basis for determining that the plaintiffs claim is not likely to evade review.

       An evidentiary hearing was not held in this case, nor did the plaintiff request that the court hold such a hearing on the motion to dismiss. The plaintiffs counsel conceded at oral argument before this court that he did not attempt to put on any evidence when objecting to the motion to dismiss. Instead, the court only heard oral argument from the parties and received briefs. The plaintiff could have requested that the court hold an evidentiary hearing in order to provide the court with evidence to establish that the plaintiffs case fell within the capable of repetition, yet evading review exception. See Kenney v. Weaving, 123 Conn. App. 211, 219 n.5,1 A.3d 1083 (2010) (observing that plaintiff did not request evidentiary hearing and made no effort to engage in discovery prior to argument on motion to dismiss); St. Germain v. LaBrie, 108 Conn. App. 587, 592, 949 A.2d 518 (2008) (noting that because there had been no request for evidentiary hearing and no affidavits filed, court would consider only complaint and facts necessarily implied therefrom in deciding whether motion to dismiss had been properly granted). The plaintiff here, however, made no such request.


author: PER CURIAM.

text:
    STEPHANIE ARMSHAW v. GREENWICH HOSPITAL
    (AC 33310)
    Beach, Robinson and Bear, Js.

      Submitted on briefs January 13 —
    officially released March 6, 2012

      Peter E. Gillespie filed a brief for the appellant (plaintiff).

      David S. Poppick filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Stephanie Armshaw, appeals from the summary judgment rendered by the trial court in favor of the defendant, Greenwich Hospital, in this action for wrongful discharge. On appeal, the plaintiff claims that the court erred in determining that the record on summary judgment did not disclose a violation of public policy derived from an explicit statutory or constitutional provision. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claim. The plaintiff was an at-will employee, working as an emergency room nurse for the defendant. The plaintiff had been the subject of previous disciplinary action, including being placed on suspension for two days for failing to follow “direction of charge [nurse],” “[i]nsubordination” and “[inappropriate service behaviors with patients, visitors or employees.” At that time, she was notified that her next disciplinary incident would result in termination of employment.

On May 28, 2008, shortly after her shift began, the plaintiff was informed that a patient assigned to her area of responsibility was being treated for a heart attack. The plaintiff proceeded to the patient’s room, observed that he was being attended to by two physicians and four nurses but failed to “ ‘take report.’ ” The plaintiff’s employment was terminated later that day.

The plaintiff subsequently filed this action in the Superior Court, seeking damages for wrongful discharge. The defendant filed a motion for summary judgment, arguing that the plaintiffs discharge did not violate an articulated public policy of the state. The plaintiff objected, and the court heard argument on the matter. The court subsequently granted the defendant’s motion for summary judgment. This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion for summary judgment. Specifically, the plaintiff argues that the evidence presented, when viewed in a fight most favorable to her, supports her claim that she was fired in contravention of a strong public policy of this state. We disagree.

When a court renders summary judgment as a matter of law, our review is plenary, and “we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 246, 252, 819 A.2d 773 (2003). Summary judgment is appropriate “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49.

“In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary.” (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697, 802 A.2d 731 (2002). Nonetheless, we recognize a common-law cause of action for wrongful discharge “in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy.” (Internal quotation marks omitted.) Id., 698; see Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980). In evaluating such claims, “[w]e look to see whether the plaintiff has . . . alleged that [her] discharge violated any explicit statutory or constitutional provision ... or whether [she] alleged that [her] dismissal contravened any judicially conceived notion of public policy.” (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, supra, 699.

The plaintiff states that the essence of her claim “is that she was discharged because she consistently advocated and acted to support proper critical patient care in an emergency situation.” In furtherance of her public policy argument, the plaintiff cites to many statutory provisions, including General Statutes §§ 19a-7a, 19a-89d, 19a-127Z, 19a-127o, 20-88, 20-92 and 20-99. Our review of the record, however, does not uncover any explicit statutory mandate, constitutional provision or judicial determination that prevents a hospital from discharging an at-will nursing employee, who has been the subject of previous disciplinary action, for failing to follow conduct and quality of work protocols designed to ensure the safety and proper care of its patients. To the extent that the plaintiff claims that the record is replete with issues of fact, we agree with the court’s determination that, although “the record discloses many genuine issues of fact, there are no genuine issues of material fact.” Accordingly, we conclude that the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

       According to the allegations of the plaintiffs complaint, to “ ‘take report’ ” refers to the “typical administrative routine” whereby a nurse, during the course of a shift change, receives “a full summary of the activity in [his or her] service area, receiving information on the patients, their status and their anticipated needs.”

       According to the employee disciplinary notice providing for her termination, the plaintiff was terminated for “[c]onduct” and “[qjuality of [w]ork” infractions. The notice was accompanied by a “ [supervisor's [description” of the underlying incident, which provides: “Stephanie arrived today at 0700, she was assigned to Zone I where a patient was experiencing an acute [myocardial infarction]. She was told by the charge nurse ... of the MI alert. At 0708 Stephanie walked into the room, turned and walked out. Stephanie did not take report from the primary nurse or provide assistance. This impacted on patient safety. Stephanie is a lead nurse expected to be a role model in this department. This demonstrates a continued lack of teamwork on Stephanie’s part and is unacceptable for an experienced nurse in this E.R.”

       In addition, in support of her claim, the plaintiff cites to Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997) (plaintiff alleging wrongful discharge for refusing to participate in scheme to defraud United States government in violation of 18 U.S.C. § 1031), Van Kruiningen v. Plan B, LLC, 485 F. Sup. 2d 92 (D. Conn. 2007) (plaintiffs alleging wrongful discharge after reporting that supervisor had sold alcohol to minor in violation of General Statutes § 30-86) and Maury v. Computer Sciences Corp., United States District Court, Docket No. 3:02cv1492 (DJS) (D. Conn. 2005) (plaintiff alleging wrongful discharge after repeated complaints about defendant’s copyright infringement in violation of 17 U.S.C. § 506). We note that these cases are inapposite as each involved the alleged wrongful discharge of an employee who had complained about an employer’s clear violation of an express statutory provision. Although the plaintiff refers to the defendant’s requirement that she “ ‘take report’ ” as “bureaucratic,” the record provides no factual basis to support a claim that the defendant’s policies, procedures and practices are in any way illegal or violative of an explicit statutory provision.

       Moreover, even if the defendant had discharged the plaintiff under a mistaken belief that she had violated its internal procedures, its conduct would not fall within the narrow public policy exception to the at-will employment doctrine. Cf. Morris v. Hartford Courant Co., 200 Conn. 676, 679-80, 513 A.2d 66 (1986) (false but negligent accusation of criminal conduct as basis for dismissal not demonstrably improper reason for discharge where employer had no statutory duty to investigate).


text:
    CUMMINGS PROPERTIES, LLC v. CENTER IMT, INC.
    (AC 33149)
    Lavine, Beach and Espinosa, Js.
    Argued January 20 —
    officially released March 6, 2012

      Michael T. Kogut, for the appellant (defendant).

      Patricia M. Shepard, with whom, on the brief, was Lawrence H. Adler, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This appeal arises out of an action to enforce a foreign judgment rendered against the defendant, Center IMT, Inc., in the commonwealth of Massachusetts. On appeal, the defendant claims that the trial court improperly rendered summary judgment in favor of the plaintiff, Cummings Properties, LLC, by (1) disregarding the defendant’s rights to due process in the Massachusetts action, (2) concluding that the misstatements in the plaintiffs complaint were not significant and (3) disregarding certain purported procedural defects in the present action. We affirm the judgment of the trial court.

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49.

On August 12, 2009, in the commonwealth of Massachusetts, the plaintiff obtained a judgment against the defendant in the principal amount of $183,511.21. The defendant appeared in that case. On February 23, 2010, the plaintiff commenced an action in Connecticut to enforce the Massachusetts judgment and secured a stipulated prejudgment order. The defendant filed an appearance but did not answer the plaintiffs complaint. On October 29, 2010, the plaintiff filed a motion for summary judgment, pursuant to General Statutes § 52-607, to which it attached the Massachusetts judgment. The court summarily granted the motion for summary judgment on January 24, 2011, stating: “The foregoing, having been considered by the Court, is hereby: ORDER: GRANTED [General Statutes §] 52-604; Misstatements as to parties in complaint not significant.”

The judgment is affirmed.

       The defendant claims that the Massachusetts judgment is improper because the defendant was not registered to do business in the commonwealth and therefore the Massachusetts court lacked personal and subject matter jurisdiction.

       The complaint in the present action erroneously alleged that the defendant was the lessee, not the guarantor of the subject lease.

       The plaintiff secured a judgment against the lessee and the guarantor of the lease. The defendant in this action is the guarantor of the lease.