text:
    MATTHEW M.
      v. DEPARTMENT OF CHILDREN AND FAMILIES
    (AC 34272)
    Beach, Robinson and SchaHer, Js.

      Argued April 9
    officially released July 9, 2013

      John P. Clifford, Jr., with whom was Joel M. Ellis, for the appellant (plaintiff).

      Susan T. Pearlman, assistant attorney general, with whom were John E. Tucker, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (defendant).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the identities of the family members involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

ROBINSON, J.

The plaintiff, Matthew M., appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant, the Department of Children and Families (department), upholding the substantiation of the finding of physical neglect of M. On appeal, the plaintiff claims that (1) he was denied due process when the hearing officer improperly amended the department’s allegations and based his decision on an allegation of physical neglect on which the department had not relied, and (2) there was not substantial evidence to support a finding of physical neglect because (a) the department’s witness testified that the department could not prove physical impact, (b) the hearing officer found facts that were not supported by the record, (c) the substantiation of emotional neglect previously had been reversed by the department after its internal review, (d) the violation of the department’s policy manual § 34-5 rendered the investigation improper and findings not legally supportable and (e) the department failed to produce evidence of the plaintiffs intent to harm M. We affirm the judgment of the trial court.

The record reveals the following facts, as found by the hearing officer, and procedural history. The plaintiff is married to Courtney M. and has one daughter, O, with her. The plaintiff has a daughter from a previous relationship, M, and Courtney has two children, C and D, from a previous relationship. The plaintiff and Courtney have a history of engaging in domestic violence, both with each other and with the parents of their children from previous relationships. Both the plaintiff and Courtney have attended domestic counseling in Massachusetts.

With respect to the incident at issue, the hearing officer found the following facts. “On February 28,2010, the [plaintiff] and Courtney engaged in an altercation. The argument began in the couple’s bedroom, moved into [C’s and D’s] bedroom, the kitchen and then moved outside. During the argument, Courtney went into [C’s and D’s] bedroom to retrieve a baseball bat. The [plaintiff] put Courtney in a choke hold and picked her up off the ground by her neck. Courtney screamed for the children to call the police. During this time, [C and D] remained in their bedroom. The argument advanced to the kitchen and then outside to the front yard, where Courtney used the bat to break the [plaintiffs] car window. . . .

“[M] was in close proximity to the [plaintiff] and Courtney while they were outside fighting. The [plaintiff] grabbed and picked up four year old [M] and placed her in the family’s [vehicle]. . . . The [plaintiff] drove the [vehicle] in the direction of Courtney and nearly ran her over, as he sped away. [D] shouted at the [plaintiff], ‘don’t run my Mommy over.’ [M] disclosed being scared during the altercation.” The East Windsor Police Department was contacted, and in the course of its investigation, one of the officers notified the department through its hotline of the incident because children had been present during the altercation.

The department’s initial investigation resulted in a substantiation of emotional neglect and physical neglect as to each child, but did not recommend that the plaintiff be placed on the department’s central registry. The plaintiff requested an internal review of the substantiation. The review resulted in a reversal of the allegations of emotional neglect as to each child and an upholding of the allegations of physical neglect as to each child. The plaintiff then requested an administrative hearing, which was held in September, October and November, 2010. The hearing officer issued a final decision upholding the substantiation of physical neglect as to M and reversing the substantiations of physical neglect as to the other three children. He subsequently denied the plaintiffs motion for reconsideration onFebruary 15,2011. The plaintiff appealed to the Superior Court, and the court issued a decision on December 30, 2011, dismissing the appeal. This appeal followed.

I

The plaintiff claims that he was denied his due process right to a fair hearing when the hearing officer upheld the substantiation of physical neglect of M on the basis of an exception to the ground relied on by the department because it had never raised that exception as a basis for physical neglect of M. The plaintiffs position rests on two assumptions: (1) the department’s policy manual § 34-2-7, entitled “Operational Definitions of Child Abuse and Neglect,” contains grounds that the department is required to identify when providing notice of the substantiation of allegations of abuse or neglect; and (2) the grounds related to physical neglect include an exception that also must be identified and noticed to the plaintiff. We reject both assumptions.

The following facts and procedural history are necessary for the resolution of this claim. On April 4, 2010, the department mailed to the plaintiff a letter entitled “Notice of Investigation Results (Substantiated)” that substantiated the allegations of physical neglect and emotional neglect as to each of the four children and indicated that the plaintiff did “not pose a risk to the health, safety or well-being of children.” After the plaintiff requested an internal review, the department informed the plaintiff that the substantiations of the allegations of emotional neglect had been reversed.

Prior to the first day of the hearing, the plaintiff received all of the documentation regarding the case. Included in the documentation was the department’s investigation protocol, which detailed the contacts that had been made during the initial investigation as well as the results of any reviews. At two places within the investigation protocol, there were references to the grounds that the department relied on when substantiating the allegations of physical neglect. The ground for physical neglect was first identified in the case disposition section of the initial investigation. The report noted that according to § 34-2-7 of the department’s policy manual, “[p]hysical neglect is the failure, whether intentional or not, of the person responsible for the child[’s] health, welfare, or care ... to provide and maintain adequate food, clothing, supervision, and safety for the child. This includes permitting the children to live under conditions, circumstances or associations injurious to their well-being including but not limited to exposure to family violence which adversely impacts the child physically. . . . [M] was in the car when [the plaintiff] attempted to run [Courtney] over with the car. [The plaintiff] is said to have been driving erratically with [M] in the vehicle. Physical neglect of [D, C, O and M] by [the plaintiff] will be substantiated.”

The ground for physical neglect was also identified in a page entitled “Investigation Appeals” that detailed the results of the internal review that had been requested on May 11, 2010. The investigation appeals page listed the allegations, a short description of the basis for the allegation, the outcome of the review of the allegation and the outcome of whether the plaintiff would be placed on the central registry. The description for the allegations of physical neglect was categorized as “[e]xposure to [family violence] w/adverse physical impact.”

The hearing officer issued his final decision on January 5, 2011. He stated: “In order to support a substantiation of physical neglect the [department must demonstrate: (1) the [plaintiff] is a person responsible for the children’s health, welfare or care; or is a person given access to the children by a person responsible, or is a person entrusted with the children’s care; (2) the [plaintiff] denied the children proper care and attention and permitted them to live under conditions, circumstances or associations injurious to their well-being; and (3) the failure resulted in an adverse physical impact on children unless the act was a single incident that demonstrated a serious disregard for their welfare. [2 Policy Manual, supra, § 34-2-7].”

The hearing officer found that the department had failed to demonstrate by a fair preponderance of the evidence how the plaintiff had physically neglected O, C and D. M, “however, was in the middle of the altercation. The [plaintiff] placed [M] in the zone of danger of being physically injured when he put the child in the middle of a physical fight with his current wife. The [plaintiffs] actions also constitute a serious disregard for the well-being of [M] by placing her in the middle of two physically fighting adults. Courtney was swinging a bat in his direction, breaking at least one of his car windows. [M] could have been seriously injured or worse. Also, [M] was thrown into a vehicle and the [plaintiff] sped away, driving in the direction of Courtney, without restraining [M].” In his memorandum on the plaintiffs motion for reconsideration, the hearing officer reiterated the evidentiary support for his findings.

“Whether the [plaintiff] was deprived of his due process rights is a question of law, to which we grant plenary review.” State v. T.R.D., 286 Conn. 191, 210, 942 A.2d 1000 (2008). “[D]ue process [in the administrative hearing context] requires that the notice given must . . . fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law. . . . [T]he fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought. . . . [N]otice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing . . . .” (Citations omitted; internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 823-24, 956 A.2d 15 (2008).

The gravamen of the plaintiffs argument is that because the department’s disclosure of the ground for physical neglect of M, which is found in the section on “physical neglect” in § 34-2-7 of the department’s policy manual, did not include the “Note” pertaining to adverse impact detailed at the end of the section on physical neglect, the hearing officer improperly amended the allegations to include the adverse impact note in violation of his due process rights. We disagree. See 2 Policy Manual, supra, § 34-2-7.

The “introduction” of policy manual § 34-2-7 provides: “The purpose of this policy is to provide consistency for staff in defining and identifying operational definitions, evidence of abuse and/or neglect and examples of impact indicators. The following operational definitions are working definitions and examples of child abuse and neglect.” Id. The section pertaining to physical neglect provides in relevant part: “Evidence of physical neglect includes, but is not limited to . . . permitting the child to live under conditions, circumstances or associations injurious to his well-being including, but not limited to, the following . . . exposure to family violence which adversely impacts the child physically . . . .’’Id. In addition, several other examples of evidence of physical neglect refer to types of actions that could adversely impact a child. A “Note” to the physical neglect section provides in relevant part that “adverse impact may not be required if the action/ inaction is a single incident that demonstrates a serious disregard for the child’s welfare.” Id.

The plaintiffs position rests on a misinterpretation of the physical neglect section. Although the plaintiff is correct that the note regarding adverse impact could be read as an exception to the necessity of proving an actual physical impact in certain instances when a single incident of family violence demonstrates a serious disregard for a child’s welfare, he is incorrect in asserting that the adverse impact note must be explicitly identified in the department’s investigative file in order for the hearing officer to rely on it in his decision. Because several of the grounds that would support a substantiation of physical neglect include a finding of adverse impact, when reading the section as a whole, the proper interpretation is that the adverse impact note is a part of the definition and, therefore, need not be explicitly identified in the department’s descriptions of the grounds upon which it relied to substantiate an allegation of physical neglect. Thus, the hearing officer did not amend the allegations, and it was not improper for the hearing officer to render his decision on the basis of the adverse impact note. Accordingly, we conclude that the plaintiffs due process rights were not violated.

II

We next address the plaintiffs claim that, on the evidence presented, the hearing officer could not have substantiated the allegation of physical neglect of M. The plaintiff has raised numerous challenges that will be addressed in turn.

We first note our standard of review. “[J]udicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. . . . When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA]. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Conclusions of law reached by the administrative agency must stand if . . . they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.” (Citations omitted; internal quotation marks omitted.) Dickman v. Office of State Ethics, Citizen’s Ethics Advisory Board, 140 Conn. App. 764, 766-67, 60 A.3d 297 (2013).

A

The plaintiff first argues that the substantiation of physical neglect should not be upheld because the department’s social worker who investigated the incident, Katrin Keating, testified that there was no evidence of physical impact. According to the plaintiff, by admitting that there was no physical impact, Keating admitted that the department “had no case.” We disagree.

The following facts are necessary for our resolution of this claim. Keating testified about her investigation of the incident after she was assigned to the family on March 1, 2010. On direct examination, Keating first testified about the events that had transpired on February 28, 2010. She further testified that as a result of her investigation, the department made a finding that the plaintiff had shown a reckless disregard for the well-being of the children and that all of the factors that she considered were contained in her protocol.

During cross-examination, when the plaintiffs counsel attempted to elicit from Keating the operational definitions of emotional neglect and physical neglect, the hearing officer interrupted, stating: “The department did . . . [reverse its] emotional neglect substantiation. So, for my purposes, I don’t need to go into the operational definitions for . . . emotional neglect and what facts [the department is] using for emotional neglect. . . . What I’m really concerned with is physical neglect, and basically, when we talk about physical neglect under the department’s operational definitions, I’m looking for—not the definition, but facts to support physical impact to the children, and that’s what we should focus on.” Following the hearing officer’s statement, the plaintiffs counsel focused his questioning on physical impact. He elicited from Keating that none of the children had any marks or physical injuries, and none of the children received medical treatment as a result of the incident. The plaintiffs counsel also elicited from Keating that there would not have been a basis for the substantiation of physical neglect of M if she had not been in the car.

On redirect examination, Keating again noted that M did not have any marks, bruises or injuries as a result of the incident, but maintained that the children did not need to have marks or injuries to substantiate physical neglect. She stated that “if the children are in the zone of danger where they could have been injured, they report at risk by being in that situation. There was a disregard for their welfare.”

As we noted in part I of this opinion, the department did not need to explicitly identify the adverse impact note in order for the hearing officer to rely on it in his decision because the note is a part of the definition. Likewise, the department could rely on the note in proving its case without explicitly stating it. Indeed, the department was required to prove only that M was “permitted to live under conditions, circumstances or associations injurious” to her well-being. General Statutes § 46b-120 (6). It could do so by providing evidence that the plaintiffs actions satisfied any of the examples of evidence of physical neglect that applied when making its determination. Thus, it did not need to provide evidence of a physical impact in order to prove physical neglect. Accordingly, the plaintiffs claim fails.

B

The plaintiff next claims that the substantiation of physical neglect should not be upheld because the factual findings by the hearing officer were not supported by the record. Specifically, he argues that the hearing . officer’s finding about M being in the zone of danger was an improper reliance on the adverse impact note that was not supported by the record and that the hearing officer made this finding because he could not make factual findings on the ground of adverse physical impact. We are not persuaded.

The following facts are necessary to resolve this claim. In his final decision, the hearing officer found that “the [plaintiff] placed [M] in the zone of danger of being physically injured when he put the child in the middle of a physical fight with his current wife. The [plaintiffs] actions also constitute a serious disregard for the well-being of [M] by placing her in the middle of two physically fighting adults.”

In his reconsideration ruling, the hearing officer refuted the plaintiffs argument that there was no evidence of physical neglect on the grounds of zone of danger and serious disregard for M’s well-being. He stated that the “evidence in the record . . . supports a finding that the argument between the [plaintiff] and his wife moved outside into the front yard. The evidence in the record shows that instead of staying in the house to protect [M], the [plaintiff] grabbed his daughter and proceeded to his wife’s truck located outside—where his wife had just smashed the window of his car with a baseball bat and shouted at the [plaintiff] as he got into her truck. The situation was volatile. The [plaintiff] placed [M] onto the center console of the truck without properly securing her in a car seat, and sped away, nearly running over Courtney as she continued to confront him. The [plaintiffs] wife was either banging on the truck’s hood or she was so close to the truck that the [plaintiff] nearly ran her over. In any case, they were so close to one another that the [plaintiffs] wife could have been seriously injured or worse. [D], the [plaintiffs] stepson, was so frightened by the scene that he shouted atthe [plaintiff], ‘don’t run over my mommy.’ The hearing officer found that the [plaintiff] acted erratically by placing [M] close to the conflict, thus endangering the child’s physical well-being and placing her in a zone of danger of also being physically injured.”

Additionally, the hearing officer credited Courtney’s testimony and found that the plaintiff “was also acting too erratically to protect [M’s] safety. Again, he placed the child in a zone of danger where she could have been injured as he sped away in his wife’s vehicle, and [M] was not properly restrained or secured in a child’s car seat. By his own admission, the [plaintiff] did not properly restrain [M] before leaving the scene. He drove some distance before stopping the vehicle to secure the child in the backseat.”

In response to the plaintiffs argument that M could not have been physically impacted by his actions on the day of the incident, the hearing officer stated that “under the [department's policies, physical impact is not required if the evidence in the record supports a finding that the [plaintiff] seriously disregarded the welfare or well-being of a child. In this case, the hearing officer finds that the [plaintiffs] actions demonstrated a serious disregard for [M’s] physical safety. Again, the [plaintiff] escalated the situation by going outside where his wife has just smashed his car window with a baseball bat. He grabbed [M], threw her into his wife’s vehicle, got behind the wheel and sped away, nearly running over his wife. Even if it is established that Courtney was the aggressor, the [plaintiff] moved the child into a zone of danger and placed her at risk of injury.”

We first note that the plaintiff appears to conflate two examples of evidence of physical neglect that are described in the department’s policy manual § 34-2-7. One example is “exposure to family violence which adversely impacts the child physically” unless the “action/inaction is a single incident that demonstrates a serious disregard for the child’s welfare.” 2 Policy Manual, supra, § 34-2-7. Another example, referred to as the “zone of danger,” is “exposure to violent events, situations, or persons that would be reasonably judged to compromise a child’s physical safety . . . .’’Id. Both in his final decision and reconsideration ruling, the hearing officer found that the plaintiff’s actions constituted physical neglect because they placed M in the zone of danger and because they demonstrated a serious disregard for M’s welfare.

To the extent that the plaintiff is challenging the hearing officer’s reliance on the zone of danger example as improper because the department only identified the exposure to family violence example as the ground on which it relied to substantiate the allegation of physical neglect of M, we reject this claim. As we concluded in part IIA of this opinion, the department was not limited to providing evidence that supported only the ground that it stated in its investigative file. Thus, the hearing officer did not improperly rely on the zone of danger example.

Moreover, after examining the record, we conclude that there was substantial evidence upon which the hearing officer could have concluded that the substantiation of physical neglect, on the basis of the zone of danger and family violence examples, should be upheld. On the basis of the testimony of Keating and the documents in the record, there was evidence that the plaintiff and Courtney had a physical altercation in the hallway that involved a baseball bat, that the altercation moved outside into the front yard, that the plaintiff picked up M during the altercation and placed her in Courtney’s vehicle unrestrained, that the plaintiff nearly hit Courtney with the vehicle when he drove away and that the plaintiff did not place M in a car seat until he had been driving several miles. Accordingly, the hearing officer did not improperly uphold the substantiation of physical neglect of M on the grounds that the plaintiff had placed her in a zone of danger and that his actions constituted a serious disregard for her welfare.

C

The plaintiff next claims that the substantiation of physical neglect should not be upheld because the department had previously reversed the substantiation of emotional neglect. He maintains that because welfare and well-being are synonymous and because the department had previously reversed the substantiation of emotional neglect on the basis of exposure to circumstances injurious to M’s well-being, the hearing officer necessarily could not have found that the plaintiffs actions demonstrated a serious disregard for M’s welfare. We disagree.

In the introduction to his decision, the hearing officer stated that the issue in the hearing was the department’s “decision to uphold the substantiations of the [plaintiff] as a perpetrator of physical neglect of [O, C, D and M] based on a report dated February 28, 2010. See also Regs., Conn. State Agencies § 17a-101k-6 (a) (“[a]ny person . . . who has been substantiated as an individual responsible for child abuse or neglect . . . and has received notice of the decision reached after an internal review as provided in section 17a-101k-5 of the Regulations of Connecticut State Agencies . . . may request an administrative hearing to contest the department’s decisions”). The hearing officer’s “[f]indings of fact shall be based exclusively on the evidence in the record and on matters noticed.” General Statutes § 4-180. In this case, the evidence includes the “investigative record including protocol, medical records and other materials used to substantiate abuse or neglect . . . and any relevant documents submitted to the department by the individual responsible for use during the internal review . . . .” Regs., Conn. State Agencies § 17a-101k-8 (f). Thus, the merits of the prior reversal of the substantiation of emotional neglect as to M were not before the hearing officer, nor were the department’s reasons for overturning the emotional neglect determinations. What was before the hearing officer was evidence that could have supported substantiations of emotional neglect and evidence that did support the substantiation of physical neglect. Moreover, the existence of contradictory evidence and “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Internal quotation marks omitted.) Altschul v. Salinas, 53 Conn. App. 391, 397-98, 730 A.2d 1171, cert. denied, 249 Conn. 931, 761 A.2d 751 (1999). “The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence . . . which reasonably supports the decision of the [agency], [a court] cannot disturb the conclusion reached by [it].” (Internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 47 Conn. App. 466, 470, 704 A.2d 827 (1998). Although the hearing officer could consider the fact that the department had reversed its substantiation of the emotional neglect finding, the plaintiff has provided us with no authority that holds that such a decision is determinative on the hearing officer’s evaluation of the issue of physical neglect. The hearing officer was required to evaluate all of the evidence in front of him, and to make factual and legal determinations that were supported by that evidence. Because there was substantial evidence to support the hearing officer’s conclusion that the plaintiffs actions constituted a serious disregard for M’s welfare, it is of no import that the department had previously reversed the substantiation of emotional neglect of M. Accordingly, the plaintiff cannot prevail on this ground.

D

The plaintiff next argues that the violation of the department’s policy manual § 34-5 rendered the investigation improper and any findings based upon it not legally supportable, and that the court improperly placed the burden on the plaintiff to prove that he was prejudiced by the department’s failure to follow its policy and interview him. The department contends that the burden of proof rests with the plaintiff and that the trial court properly found that he had failed to satisfy this burden. We agree with the department.

The following facts are necessary for our resolution of this claim. Section 34-5 of the department’s policy manual governs contacts that must be made during an investigation of child abuse or neglect. It provides in relevant part: “The initial stage of the investigation shall include a face-to-face contact with . . . the child, and . . . the parent or person responsible for the child’s welfare.” 2 Policy Manual, supra, § 34-5. Section 34-5 further provides that “ [w]hen unable to complete a face-to-face contact with the parent . . . the investigator shall . . . notify his/her supervisor of the inability to make contact and any other problems in conducting the investigation . . . make daily attempts to accomplish such contact [and] document all attempts in LINK. ... If the parent ... is not home at the time of the investigation visit, all reasonable efforts must be made to contact them within twenty-four (24) horns. If their whereabouts are unknown, the worker shall make reasonable efforts to locate them .... If the parent . . . is out-of-state and the location is known, the investigator shall attempt to make contact with the out-of-state child protection agency within one (1) working day.”

At the hearing, Keating testified that the first time she attempted to contact the plaintiff by cell phone was on April 13, 2010, and that his voice mail was full. She stated that she then sent him a letter asking him to contact the department that same day, but that on the next day, April 14, 2010, Keating sent notice of the substantiation of allegations of physical and emotional neglect of the four children. Keating admitted that the letter asking the plaintiff to contact the department was not part of the investigative file and that she could not produce a copy of it. Keating further admitted that Courtney had told her that the plaintiff might be living with his parents in Massachusetts and gave her the address on March 10, 2010. She acknowledged that she never checked the telephone directory for a telephone number, checked for a telephone number online, made any additional telephone calls to the plaintiffs cell phone, attempted to obtain the e-mail address of the plaintiffs mother after Courtney informed Keating that she had received an e-mail from the plaintiffs mother or traveled to the plaintiffs, parents’ house. Keating stated that issues of confidentiality render it inappropriate to leave messages if the department is unsure that the message will get to the intended party. When questioned about why she sent the substantiation letter to the plaintiffs parents’ address when she was unsure about whether he resided there, she stated, “[w]e are required to attempt to send a letter at the end of the investigation.”

The plaintiff also testified. He testified that he had been living with his parents in Massachusetts since the incident on February 28, 2010, that his parents have a home telephone number that is publicly listed in the telephone book and that the substantiation letter was the first correspondence that he had received from the department. He also testified about the events that had occurred on February 28, 2010.

In his closing statement, the representative for the department conceded that it had not done its “due diligence in terms of contacting [the plaintiff].” He noted, however, that it was not uncommon for those being investigated to avoid contact with the department and that “based on what [the plaintiff said], it may or may not have had a significant impact on the ultimate decision of disposition.” The plaintiff, in response, argued that the substantiations should be reversed, in part, because the department had failed to follow its own protocol and had failed to make any contact with him before making the decision to substantiate the allegations of neglect.

In rendering his decision to uphold the substantiation of physical neglect of M, the hearing officer did not address the plaintiffs argument regarding the failure of the department to contact him prior to the substantiation of physical neglect. The plaintiff filed a timely motion for reconsideration and raised, inter alia, the argument that the hearing officer should reverse the substantiation of physical neglect of M because when the department had violated § 34-5 of the policy manual by failing to contact the plaintiff during the investigation, a rebuttable presumption of prejudice was created and the department failed to rebut it. The hearing officer disagreed, stating: “The evidence in the record . . . supports a finding that the [department's investigator attempted to contact the [plaintiff] on April 13, 2010, before its investigation was completed. The [plaintiff] did not answer his cell phone, and the recording on his voice mail indicated the mailbox was full. Subsequently, the investigator mailed a letter to the [plaintiff] requesting that he contact her. . . . Soon thereafter, the investigator closed [her] case. There was sufficient evidence that the investigator made efforts to contact the [plaintiff] within the time frames allowed for completion of her investigation. . . . Although the [plaintiff] did not make himself available to the [department during the course of the investigation, this hearing officer considered his testimony in making a determination as to the facts in this matter. In fact, this hearing officer reviewed all the evidence in the record carefully and reversed all the substantiations against the [plaintiff] except physical neglect of [M].” (Citations omitted.)

In his appeal to the Superior Court, the plaintiff again raised the argument that the substantiation should be overturned because the department had failed to interview him. The court held: “The record shows that the plaintiff was not available when the investigator tried to reach him. ... He did testify at the hearing, however, and his testimony was evaluated by the hearing officer. Therefore, he has not demonstrated the prejudice, in not following the protocol, required for this court to sustain his appeal.” (Citation omitted.)

“When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Dickman v. Office of State Ethics, Citizen’s Ethics Advisory Board, supra, 140 Conn. App. 764. “Judicial review of an administrative decision is a creature of statute . . . and [General Statutes § 4-183 (j)] permits modification or reversal of an agency’s decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error or law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” (Citation omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 787, 855 A.2d 174 (2004). Nevertheless, our Supreme Court has stated that “not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown.” (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 97, 596 A.2d 374 (1991).

Citing Henderson v. Dept. of Motor Vehicles, 202 Conn. 453, 521 A.2d 1040 (1987), the plaintiff maintains that once the violation of the department’s policy was demonstrated, the burden rested on the department to prove that he was not prejudiced. The holding of Henderson, however, is much narrower. In Henderson, the plaintiff had appealed from a decision of the adjudication unit of the Department of Motor Vehicles suspending his license following his involvement in a fatal accident. Id., 454. This court upheld the judgment of the trial court dismissing the appeal. Id. Our Supreme Court granted certification to appeal on the limited issue of: “When an adjudicator has engaged in ex parte communication in violation of [General Statutes § 4-181], should relief be provided when the record is devoid of evidence tending to prove that the party seeking the relief has been prejudiced by the communication?” (Internal quotation marks omitted.) Id., 454-55. Both the trial court and this court had held that the plaintiff had the burden of proving prejudice. Id., 455. The Supreme Court, however, disagreed, holding that “[o]nce it has been demonstrated that a violation of § 4-181 has occurred, a presumption of prejudice must be deemed to arise. Although this presumption is rebutta-ble, the burden of showing that a prohibited ex parte communication by an adjudicator has not prejudiced a party must be allocated to the agency if § 4-181 is to fulfill its salutary purpose.” Id., 457-58.

In coming to that conclusion, the court noted that “[w]e would create a conundrum by imposing the burden of proving prejudice from an ex parte communication upon one challenging an agency decision, because an adjudicating official may not ordinarily be subjected to inquiry concerning the mental process used in reaching a decision. . . . The agency usually is in a better position to ascertain the content of any communications with its employees than is a party outside the agency, who often must depend on suspicion or rumor.” (Citation omitted.) Id., 459. Thus, the narrow holding of Henderson is that “once the violation of § 4-181 has been proved by the party seeking relief, the burden shifts to the agency to prove that no prejudice has resulted from the prohibited ex parte communication.” Id., 460.

In the present case, the plaintiff does not allege a violation of § 4-181, but rather a violation of the department’s internal policies. Moreover, the policy considerations that were present in Henderson do not apply here. The plaintiffs counsel thoroughly cross-examined Keat-ing about her lack of diligence in attempting to contact the plaintiff. Additionally, unlike situations in cases involving ex parte communications, no party was better able to assess the effect of the violation than any other party.

Moreover, Henderson appears to be limited to the cases in which there is a violation of § 4-181. In other cases in which different statutory provisions are at issue, our courts have concluded that “the complaining party bears the burden of demonstrating that its substantial rights were prejudiced by the administrative agency’s error.” Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. 813 (violation of General Statutes § 4-182 [c]); see also Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 535-36, 560 A.2d 403 (1989) (violation of General Statutes § 20-29); Jones v. Connecticut Medical Examining Board, 129 Conn. App. 575, 581-84, 19 A.3d 1264 (violation of statutory notice requirements), cert. granted on other grounds, 302 Conn. 921, 28 A.3d 338 (2011). Because the plaintiff is not alleging a violation of § 4-181, we conclude that the burden was on the plaintiff to prove prejudice.

With respect to whether the plaintiff met that burden, we hold that he did not. The department admitted during its closing argument before the hearing officer that it had not done its due diligence in attempting to contact the plaintiff. The record also demonstrates, as both the hearing officer and trial court noted, that the hearing officer considered the testimony of the plaintiff in making his determination. Accordingly, the court did not err in finding that the plaintiff was not prejudiced by the department’s failure to follow its directives in § 34-5 of the policy manual.

E

We finally address the plaintiffs argument that the hearing officer committed error in upholding the finding of physical neglect because the department failed to produce evidence of the plaintiffs intent to harm M. The plaintiff maintains that, pursuant to § 17a-101k-8 (j) of the Regulations of Connecticut State Agencies, “the burden of proof is on [the department] to prove that . . . the allegations of at least one substantiation was based on the proper application of the criteria set forth in [Regulation] § 17a-101k-3 . . . .” As one of the factors under § 17a-101k-3 of the regulations is intent, the plaintiff asserts that it was error for the department, the hearing officer and the court to disregard it, especially since the department would not have been able to prove intent because it could not prove that an ordinary person of average intelligence would have realized that “a parent driving with [M] with the intention of protecting her . . . was behavior that fell outside expected norms of parental behavior.” We are not persuaded.

In his reading of § 17a-101k-8 (j) of the regulations, the plaintiff ignores the relevant language. In its entirety, § 17a-101k-8 (j) provides: “In an administrative hearing, the burden of proof shall be on the department to prove by a fair preponderance of the evidence submitted at the hearing, that (1) the allegations of at least one substantiation; and (2) if applicable, the registry finding, was based on the proper application of the criteria set forth in section 17a-101k-3 of the Regulations of Connecticut State Agencies.” (Emphasis added.) The department never sought to list the plaintiff in the central registry; thus, the second condition is not applicable to the plaintiff, and the department did not need to address the intent criteria found at § 17a-101k-3. Accordingly, the plaintiff cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       See 2 Dept. of Children and Families, Policy Manual, § 34-5, available at http://www.ct.gov/dcf/cwp/view.asp?a=2639&Q=393962 (last visited June 25, 2013).

       Section 17a-101k-1 (14) of the Regulations of Connecticut State Agencies provides in relevant part: “ ‘Central registry’ or ‘registry’ means the confidential data file maintained as part of the department’s computerized database, of persons who have been substantiated as individuals responsible for an act or acts of child abuse or neglect and for whom the commissioner has made a determination, based upon a standard of reasonable cause, that the individual poses a risk to the health, safety or well-being of children . . . .”

       Because the department characterizes the plaintiffs argument as one challenging the notice provided by the department, it contends that the plaintiff has not preserved this claim because he did not raise the issue to the hearing officer or on appeal to the trial court, and that if the claim is not waived, the plaintiff has failed to show substantial prejudice. Because the plaintiff does not challenge the notice provided by the department, we need not address the department’s argument.

       The department sent notice of the investigation review results on two separate dates, June 21,2010, and August 13,2010. The August letter appears to correct an error in the June letter that indicated that the plaintiff was being placed on the central registry for the substantiated allegations of physical neglect of the four children. The record reveals that the department never intended to list the plaintiff on the registry and it was not at issue at the substantiation hearing.

       Those examples include: (1) erratic, deviant or impaired behavior, (2) substance abuse by a caregiver, and (3) psychiatric problems of a caregiver. 2 Policy Manual, supra, § 34-2-7.

       The plaintiff cites several statutory and regulatory provisions to support his argument that the hearing officer improperly amended the allegations in violation of his due process rights. Those provisions, however, relate to the statutory notice that the department is required to provide the plaintiff upon a substantiation of abuse or neglect and subsequent reviews of such substantiations. As the plaintiff has not raised a claim that challenges the notice that he received from the department, we do not address this issue. Moreover, we express no opinion as to whether the department was required to provide the plaintiff with the grounds for the substantiation.

       To the extent that the plaintiff claims that he did not have proper notice of the grounds for the substantiation of the physical neglect finding, this argument is without merit. The plaintiff does not dispute that he received the department’s entire investigative record that was used to substantiate the finding of physical neglect. Moreover, testimony by the department’s witnesses revealed that the basis for the substantiation included that the plaintiff’s actions constituted a disregard for M’s welfare. Additionally, the department’s policy manual is available to the public online. That the plaintiff was proceeding on a mistaken interpretation of one of the examples does not mean that he could not have been aware of the grounds of the hearing officer’s decision or that the hearing officer improperly amended the department’s allegations. For the same reasons, we also reject the plaintiffs argument that the hearing officer was not impartial pursuant to General Statutes § 4-176e.

       Section 17a-101k-3 of the Regulations of Connecticut State Agencies provides in relevant part: “(c) In all other cases in which the department substantiates abuse or neglect by an individual responsible, and the individual responsible is not recommended for entry on the central registry pursuant to subsection (b) of this section, the investigator shall review the case to determine whether the individual responsible poses a risk to the health, safety and well-being of children and should be listed on the central registry. ... (e) In cases of neglect . . . the investigator, shall consider the intent, severity, chronicity and behavioral health or domestic violence concerns based on a review of the abuse or neglect that led to the substantiation, including, but not limited to if ... (2) there was an adverse impact to the victim or a serious disregard for the victim’s welfare . . . .”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    COMMISSIONER OF MENTAL HEALTH AND ADDICTION SERVICES ET AL. v. MEHDI M. SAEEDI ET AL.
    (AC 34366)
    Graendel, Sheldon and Peters, Js.

      Argued February 14
    officially released July 9, 2013

      Gary W. Hawes, assistant attorney general, with whom were Nancy A. Brouillet, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Gregory T. D’Auria, solicitor general, for the appellants (plaintiffs).

      Kathleen Eldergill, for the appellee (named defendant).

      Charles Krich, principal attorney, for the appellee (defendant Commission on Human Rights and Opportunities).
   Opinion

GRUENDEL, J.

The plaintiffs, the Department of Mental Health and Addiction Services (department), the former commissioner of the department, Thomas A. Kirk, Jr., and Connecticut Valley Hospital (hospital) employees Barbara Forgit, Stuart Forman, Luis Perez, Leonard Lev and Helene Vartelas, appeal from the judgment of the trial court dismissing their administrative appeal from a decision of the defendant Commission on Human Rights and Opportunities (commission) human rights referee (referee), finding that the plaintiffs violated General Statutes (Rev. to 2007) § 4-61dd by retaliating against the other defendant, Mehdi M. Saeedi, on account of his whistle-blowing activities. On appeal, the plaintiffs claim that the court erred in concluding that the referee properly determined that (1) the thirty day filing period for filing whistle-blower retaliation complaints was not a jurisdictional limitation, (2) the thirty day filing period for whistle-blower retaliation complaints is subject to the continuing comise of conduct doctrine, (3) the act of Saeedi’s union having filed grievances on his behalf for three of the adverse personnel actions of which he complained did not render that procedure his exclusive remedy, and (4) the commission had jurisdiction to order professional ethics training for department employees and to order the correction of Saeedi’s personnel evaluation. We affirm in part and reverse in part the judgment of the trial court.

The following facts, as found by the referee, are relevant to the resolution of the plaintiffs’ claims. In 2002, Saeedi, a board certified internist, was hired by the department to work as a principal physician in ambulatory care services at the hospital. While working in this capacity, Saeedi served on several of the hospital’s committees, including acting as co-chair of the continuing medical education committee. In 2006, Saeedi received his performance appraisal for the period covering September, 2005, to September, 2006. Saeedi’s performance was rated a “five,” on a scale of one to five, with “five” indicating a rating of “excellent.” His evaluator commented in writing that Saeedi’s quality of work was “exceptionally accurate,” that he spent a significant amount of time with patients and that his documentation was always thorough. Further, his evaluator noted that Saeedi was “always willing to help [the medical director],” “has excellent interaction with on-call [physicians],” and was “[w]ell-respected by everyone as an outstanding educator.” Before August, 2007, Saeedi had never been subject to discipline or accused of any work rule violations.

As a principal physician, one of Saeedi’s duties included supervising Romeo Sonido, another physician working at the hospital. Saeedi discovered that Sonido was providing poor quality medical care to his patients and had many problems in the medical management of his patients. For example, when an electrocardiogram indicated that one of Sonido’s patients had experienced a heart attack, Sonido failed to take any action for nine days. As a result, Saeedi thereafter intervened and treated the patient.

Saeedi attempted to address these problems with Sonido, but Sonido became belligerent and his performance did not improve. There having been no improvement in Sonido’s performance, in 2005 or 2006, Saeedi brought his concerns to the attention of the medical director of ambulatory care services. The situation remained unchanged, and in August, 2007, Saeedi began to make a series of reports to various hospital supervisors and administrators, including Forgit, Lev and Forman, about his concerns regarding Sonido’s care of patients. Neither Forman, Lev, nor any other supervisor to whom Saeedi made complaints took any action under the medical staff bylaws to improve Sonido’s handling of patient care.

In August, 2007, the plaintiffs initiated a series of adverse personnel actions against Saeedi, including (1) threatening to transfer him to a building that would require him to pass through a metal detector that “could cause [his] defibrillator to give him a shock ... or to reprogram the defibrillator so that it would not operate properly when needed”; (2) reassigning him to a post that required repeated travel among buildings in hot and cold weather, despite his documented medical condition that made exposure to heat and cold dangerous for him; (3) soliciting other employees to file work rule violations against him; (4) failing to follow the department’s progressive discipline policy, which focuses on correction of behavior, rather than punishment; (5) filing complaints containing false, unsupported allegations against him, resulting in two unpaid suspensions from work; and (6) downgrading his performance appraisal scores to indicate a rating of “unsatisfactory,” notwithstanding his demonstrated competence in providing patient care.

On October 16, 2008, Saeedi filed a complaint with the chief human rights referee alleging that the plaintiffs had retaliated against him for his whistle-blowing activities in violation of § 4-61dd. The plaintiffs filed their answer denying that they had taken or threatened to take any retaliatory personnel action against Saeedi. In their answer, they pleaded a single special defense: “The [o]ffice of [p]ublic [h]earing[s] has no subject matter jurisdiction over this complaint because [Saeedi] has failed to satisfy the prerequisites for protection under ... § 4-61dd.”

On May 19, 2010, less than one week prior to the public hearing before the referee was scheduled to begin, the plaintiffs filed a motion to dismiss, alleging, inter alia, that the office of public hearings had no jurisdiction over Saeedi’s complaint because (1) he had filed grievances through his union, and, therefore had elected to pursue his remedies through his collective bargaining agreement, and (2) it was untimely. Saeedi objected to the plaintiffs’ motion, arguing that the bases articulated in the plaintiffs’ motion to dismiss did not implicate the subject matter jurisdiction of the office of public hearings, that the plaintiffs failed to raise in their answer any of the claims discussed in their motion to dismiss as affirmative defenses, and, therefore, they had waived the opportunity to raise them. The referee denied the motion to dismiss because “some of the reasons given by the [plaintiffs] to dismiss the complaint had existed since the October, 2008 filing of the complaint; other reasons were nonjurisdictional; and other reasons given were [according to the evidence submitted by Saeedi] simply untrue.” On May 25, 2010, the matter proceeded to a seven session public hearing before the referee. On October 14, 2010, the referee took evidence and heard argument on damages, after which the record closed.

On December 9, 2010, the referee issued his final decision, finding, inter alia, that Saeedi was not barred from “pursuing both his whistle-blower retaliation complaint and his grievance[s],” that the continuing course of conduct doctrine applies to the filing period prescribed in § 4-61dd and that Saeedi had “established by a preponderance of [the] evidence that the [plaintiffs] violated ... § 4-61dd.” The referee ordered that the plaintiffs (1) reimburse Saeedi for his salary and lost wages and credit him for lost vacation, sick leave or accrued length of service; (2) pay to Saeedi $40,000 in emotional distress damages, $123,765.25 in attorney’s fees and costs and $2641 in prejudgment interest; (3) issue Saeedi a revised performance appraisal for the period of September, 2007, to September, 2008, “omitting references to the five day and ten day suspensions,” retaining the same scores in all categories except “judgment,” increasing to “[four]” the scores in the “judgment” category, giving Saeedi “an overall performance rating of 4.375 (excellent)”; (4) refrain from considering the subject disciplinary action taken against Saeedi or the “unsatisfactory” rating on his September, 2008 performance appraisal when considering future personnel actions; (5) purge from Saeedi’s official and unofficial personnel files all references to the subject personnel actions; and (6) receive training in professional ethics within nine months of the decision’s issuance.

The plaintiffs appealed from the referee’s decision to the Superior Court, claiming, inter alia, that the office of public hearings lacked jurisdiction over Saeedi’s complaint because (1) the referee’s decision was “in excess of the statutory authority granted to the Commission on Human Rights and Opportunities’ office of public hearings pursuant to [§ 4-61dd],” and (2) he “previously filed the same claim in the form of two grievances through his union, pursuant to his [c]ollec-tive [b]argaining [a]greement, and thus has elected his remedies.” The court determined that the thirty day filing period prescribed by § 4-61dd is not jurisdictional in nature and agreed with the referee’s reasoning that the continuing course of conduct doctrine applies to the thirty day filing period. Adopting the reasoning of the referee, the court also found that given the specific terms of Saeedi’s collective bargaining agreement, he was not precluded from filing a complaint with the commission after his union had filed grievances challenging the department’s adverse personnel actions. The court also found no error in the referee’s fashioning of remedies, concluding that in light of the remedial purpose of § 4-61dd and the referee’s finding that Saeedi’s performance appraisal was tainted with retaliatory animus, the referee’s order that the review be revised to reflect an accurate appraisal was appropriate. Under the specific facts of this case, the court also found that the referee had the authority to order the plaintiffs to take a professional ethics class. Finding that the conclusions of law reached by the referee resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts, the court dismissed the plaintiffs’ appeal. From that decision of the court, the plaintiffs now appeal.

I

THIRTY DAY FILING PERIOD UNDER § 4-61dd

The plaintiffs first argue that the office of public hearings lacked subject matter jurisdiction to entertain Saeedi’s claims because the filing of his complaint was untimely. We disagree.

“[Ojnce the question of lack of jurisdiction of a [tribunal] is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Pine v. Dept. of Public Health, 100 Conn. App. 175, 179, 917 A.2d 590 (2007). We, therefore, address first the plaintiffs’ claim regarding the jurisdiction of the office of public hearings.

“We have long held that because [a] determination regarding a [tribunal’s] subject matter jurisdiction is a question of law, our review is plenary. . . . Subject matter jurisdiction involves the authority of the [tribunal] to adjudicate the type of controversy presented by the action before it. . . . [A tribunal] lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the [tribunal] sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Id., 180.

“The question of whether a statutory time limitation is subject matter jurisdictional is a question of statutory interpretation.” (Internal quotation marks omitted.) Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 267, 777 A.2d 645 (2001). “Thus, we look to whether the legislature intended the time limitation to be jurisdictional. The legislative intent is to be discerned by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was designed to implement, and the statute’s relationship to the existing legislation and common law principles governing the same subject matter. ... In light of the strong presumption in favor of jurisdiction, we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar.” (Internal quotation marks omitted.) Id.

Although a statute’s “mandatory language may be an indication that the legislature intended a time requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar. In the absence of such a showing, mandatory time limitations must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties. Such time limitations do not, however, implicate the subject matter jurisdiction of the agency or the court.” Id., 269-70.

Section 4-61dd (b) (3) (A) provides in relevant part that “[n]ot later than thirty days after learning of the specific incident giving rise to a claim that a personnel action has been threatened or has occurred in violation of subdivision (1) of this subsection, a state or quasi-public agency employee . . . may file a complaint concerning such personnel action with the Chief Human Rights Referee . . . The legislature’s use of the word “may” rather than “must” or “shall,” while not disposi-tive, suggests that the time limit in § 4-61dd (b) (3) (A) is directory, rather than mandatory. See Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 271 (“[d]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature” [internal quotation marks omitted]). Traditionally, it is “strong mandatory language . . . [that] is consistent with the notion of a subject matter jurisdictional limit.” Id. As we do not find such strong mandatory language in § 4-61dd (b) (3) (A), we cannot conclude that the text of § 4-61dd (b) (3) (A) makes a “strong showing of a legislative intent”; id., 269; to create a jurisdictional bar to claims filed outside the thirty day period.

Our inquiry, however, does not end with the text of § 4-61dd (b) (3) (A). We also have carefully reviewed the legislative history of § 4-61dd and have discovered no legislative intent that the thirty day filing period act as a jurisdictional bar. In fact, there is no legislative history whatsoever on the subject of the thirty day filing period. The plaintiffs argue that a comment by Representative James A. O’Rourke III, made during the debate on House Bill No. 5487, “An Act Concerning State Employee and Contractor Whistleblowing Complaints”—which ultimately amended § 4-61dd to offer victims of whistle-blower retaliation an administrative process to adjudicate their claims through the commission—indicates that the thirty day filing period was meant to be jurisdictional in nature. Representative O’Rourke stated that “the thought here is to speed up the processing of these complaints, to streamline it and have a faster decision.” 45 H.R. Proc., Pt. 9, 2002 Sess., p. 2871. We note first that the plaintiffs’ argument takes this comment out of context. Representative O’Rourke’s comments concerned the creation of the administrative process, not the thirty day filing period. His statement, in whole, reads: “The specific section that you refer to would be [the] alternative process here is, the thought here is to speed up the processing of these complaints . . . .” Id. The discussion on the floor that followed related exclusively to the designation of an alternate forum for pursuing whistle-blower retaliation claims, with no mention of the filing period. Furthermore, even if the comment cited by the plaintiffs offered some indication that the legislature intended the thirty day time limit to “speed up” the process of resolving claims, this does not evince a clear intention by the legislature to create a jurisdictional bar.

In light of the dearth of legislative history and textual evidence indicating any legislative intent to create a subject matter jurisdictional bar, and mindful of the remedial purpose of § 4-6 ldd; see part III of this opinion; we conclude that failure to comply with the thirty day filing period did not divest the referee of subject matter jurisdiction. The trial court, therefore, properly found no error in the referee’s decision that the office of public hearings had subject matter jurisdiction to hear Saeedi’s claims.

The plaintiffs argue, in the alternative, that Saeedi’s claims are subject to a mandatory “time limit” or statute of limitations, which may not be tolled by the continuing course of conduct doctrine, making his filing untimely for all but one personnel action of which Saeedi complains. As the plaintiffs have waived this claim, we do not address its merits.

The plaintiffs, in their answer filed in response to Saeedi’s complaint to the commission, asserted a single special defense, claiming that the office of public hearings lacked subject matter jurisdiction. In their motion to dismiss filed prior to their hearing before the referee, the plaintiffs again argued that the office of public hearings lacked subject matter jurisdiction over Saeedi’s claims, not that Saeedi’s claims were barred by a mandatory statute of limitations. Saeedi, in his objection to the plaintiffs’ motion to dismiss, argued not only that § 4-61dd did not implicate the subject matter jurisdiction of the office of public hearings, but that any defense the plaintiffs may have had pursuant to the filing period contained in § 4-61dd had been waived because they had failed to plead it in their answer. For the first time, in their trial brief to the referee, the plaintiffs argued that § 4-61dd “mandates a [thirty day] statute of limitation[s] for the filing of a [whistle-blower] complaint,” and, accordingly, Saeedi’s “allegations are untimely.” They did not, however, explain how this purported untimeliness impacted Saeedi’s claims. Saeedi, in his trial brief, reiterated that the plaintiffs, in failing to plead it, had waived any potential statute of limitations defense. The referee addressed the statute of limitations issue in finding that the continuing course of conduct doctrine tolled the thirty day filing period prescribed by § 4-61dd.

In their appeal to the Superior Court, the plaintiffs did not allege that Saeedi’s claims were time barred, but that the thirty day filing period divested the office of public hearings of jurisdiction over Saeedi’s claims. In their trial brief to the court, the plaintiffs argued that the filing period rendered the office of public hearings without “jurisdiction over [Saeedi’s] untimely allegations.” Saeedi, in his trial brief to the court, again argued that the “plaintiffs’ statute of limitations defense . . . [had] been waived.” The court, in adopting the referee’s reasoning, found that the filing period in § 4-61dd is not a jurisdictional limitation, and is, therefore subject to tolling under the continuing course of conduct doctrine.

“The interpretation of the requirements of the rules of practice presents a question of law, over which our review is plenary.” Cue Associates, LLC v. Cast Iron Associates, LLC, 111 Conn. App. 107, 111, 958 A.2d 772 (2008). “Practice Book § 10-50 provides that [f]acts which are consistent with [the claimant’s allegations] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . the statute of limitations . . . must be specially pleaded .... The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway.” (Internal quotation marks omitted.) Martino v. Soalzo, 113 Conn. App. 240, 245, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). It follows, therefore, that “[wjhere a particular statute of limitations ... is not jurisdictional and has not been pleaded, [the opposing party] is entitled to conclude that it was waived.” (Emphasis omitted; internal quotation marks omitted.) Id., 247.

Here, not only did the plaintiffs fail to allege any statute of limitations defense before the hearing began, but they did not claim any such defense until after the hearing had concluded, when they first raised the argument in their trial brief. Not only does their strategy fail to comport with the rules of practice, it fails to comport with a fundamental principle underlying those rules: the parties and the tribunal, as they embark on the trial process, are entitled to know definitively the scope of the legal and factual issues to be addressed during that trial. The plaintiffs are not entitled to raise this defense only after the conclusion of the hearing before the referee, decline to raise the issue on appeal to the Superior Court, and then raise it now before this court. See Dockter v. Slowik, 91 Conn. App. 448, 462, 881 A.2d 479 (“[o]ur rules of procedure do not allow a [party] to pursue one course of action . . . and later, on appeal, argue that a path he rejected should now be open to him” [internal quotation marks omitted]), cert. denied, 276 Conn. 919, 888 A.2d 87 (2005). We, accordingly, deem the plaintiffs’ claim waived and decline to address its merits.

II

ELECTION OF REMEDIES

The plaintiffs next contend that three of Saeedi’s claims were “invalidated” because he elected an alternate exclusive remedy for his claims when his union filed grievances for the challenged personnel actions. As the plaintiffs are raising this claim for the first time on appeal, we decline to review its merits.

In their motion to dismiss filed with the referee on May 19, 2010, more than one and one-half years after Saeedi filed his complaint alleging retaliation for whistle-blowing, the plaintiffs set forth, for the first time, the argument that Saeedi’s union, having filed grievances on his behalf to challenge the plaintiffs’ adverse personnel actions, rendered the office of public hearings without jurisdiction to hear his claims because he had elected his exclusive remedy of pursuing his claims via the grievance process under the union’s collective bargaining agreement. The defendants objected to the motion, and the referee, after hearing argument, denied it, issuing a short order from the bench. The plaintiffs again raised this argument, rooted in the alleged lack of jurisdiction of the referee, to the trial court on appeal, and the court found that the referee did not err in determining that the filing of grievances did not deprive the referee of jurisdiction to hear Saeedi’s claims.

On appeal to this court, the plaintiffs now present the argument that Saeedi’s union’s use of the grievance process served to “invalidate” Saeedi’s claims because he chose to pursue them through the forum provided by the collective bargaining agreement. The plaintiffs no longer claim that this deprives the referee of jurisdiction to decide the matter. They claim that Saeedi’s claims “should have been dismissed” because § 4-61dd requires the employee to elect an exclusive forum in which to pursue these claims, and Saeedi elected his exclusive forum when his union filed its grievances.

“This court has said many times that it will not review a claim that is not distinctly raised at trial. ... A claim is distinctly raised if it is so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Citation omitted; emphasis added; internal quotation marks omitted.) Dockter v. Slowik, supra, 91 Conn. App. 462. “Our rules of procedure do not allow a [party] to pursue one course of action . . . and later, on appeal, argue that a path he rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) Id.

The plaintiffs now attempt to reincarnate a claim they originally characterized as jurisdictional so that they may advance a different legal theory in support of their position at the appellate stage of the proceedings. We are not inclined to entertain such a strategy, and decline to do so. We, therefore, do not address this claim’s merits.

Ill

ORDER FOR ETHICS TRAINING AND REVISION OF PERFORMANCE APPRAISAL

The plaintiffs’ final claim is that the referee exceeded the authority conferred upon him by § 4-61dd in fashioning an award that included ordering the plaintiffs to undergo ethics training and to revise Saeedi’s performance appraisal to include a particular score in the area of “judgment.” They contend that § 4-61dd does not authorize the referee to make such an order.

In devising his final decision to remedy the effects of the plaintiffs’ impermissible retaliation, the referee ordered, inter alia, that the plaintiffs (1) “shall issue [Saeedi] a revised performance appraisal for the September, 2007 to September, 2008 period omitting references to the five day and ten day suspensions, retaining the same scores as in [the September, 2008 appraisal] except for the category of ‘judgment,’ increasing the scores in the ‘judgment’ competencies and the ‘judgment’ category to a score of ‘[four]’; and giving [Saeedi] an overall performance rating of 4.375 (excellent),” and (2) “shall within nine months of this decision receive training [in professional ethics] at [the department’s] expense . . . .” The trial court found that these specific components of the order fell within the referee’s authority under § 4-61dd in light of the remedial purpose of the statute and the factual findings made in this case. The plaintiffs contend that the trial court erred in determining that these facets of the referee’s order fall within the ambit of the authority granted to the referee by § 4-61dd. We agree with the plaintiffs only with respect to the referee’s ordering of professional ethics training.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. ... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide [s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . [A]s to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) Eagen v. Commission on Human Rights & Opportunities, 135 Conn. App. 563, 572-73, 42 A.3d 478 (2012).

Determining whether the referee applied the law correctly to the facts of this case requires us to interpret the meaning of § 4-61dd. “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], General Statutes § l-2z directs us first to 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.” (Internal quotation marks omitted.) Stec v. Raymark Industries, Inc., 299 Conn. 346, 358, 10 A.3d 1 (2010).

We, accordingly, look first to the relevant language of § 4-61dd. Section 4-61dd (b) (3) (A) provides in relevant part that “[i]f the human rights referee finds ... a violation, the referee may award the aggrieved employee reinstatement to the employee’s former position, back pay and reestablishment of any employee benefits for which the employee would otherwise have been eligible if such violation had not occurred, reasonable attorneys’ fees, and any other damages. ...” The term “any other damages” reasonably is subject to both broad and narrow interpretations. As the defendants propose, the term “any damages” may refer to any relief the referee deems appropriate under the factual circumstances of the case and in light of the remedial nature of the statute. “Any damages” may also mean only compensation for economic harm, as the plaintiffs suggest. Given that this language lends itself to more than one reasonable interpretation, we conclude that § 4-61dd is ambiguous with respect to the authority it grants the referee to fashion remedies.

Having determined that § 4-6 ldd is ambiguous, we turn to extrinsic sources to discern its meaning, beginning with its legislative history. See Hatt v. Burlington Coat Factory, 263 Conn. 279, 308, 819 A.2d 260 (2003) (“[statements of legislators often provide strong indication of legislative intent” [internal quotation marks omitted]). The legislature introduced and ultimately passed the initial version of § 4-61dd as House Bill No. 5421, “An Act Concerning Whistle Blowing by State Employees.” During floor debates, Representative Patricia T. Hendel, addressing the House of Representatives, explained that “employees should not be afraid to point out waste and corruption when and if they see such things in our [s]tate’s government.” 22 H.R. Proc., Pt. 24,1979 Sess., p. 8457. In support of the bill, Representative Richard J. Baiducci echoed this sentiment in stating that the bill “ailow[s] [a] [s]tate employee, without fear of retaliation or repercussions for his or her doing so, to report information ... to the [ajttomey [g]eneral’s office.” Id., p. 8461. This discussion reveals the overarching remedial purpose of § 4-61dd and its aim to protect whistle-blowing state employees from retribution or reprisal.

Our Supreme Court has long held that remedial statutes are to be interpreted broadly to effectuate their purpose. See, e.g., Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 265, 927 A.2d 811 (2007) (“act indisputably is a remedial statute that should be construed generously to accomplish its purpose” [internal quotation marks omitted]); Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10,18, 688 A.2d 306 (1997) (“remedial statutes should be construed liberally in favor of those whom the law is intended to protect”). Here, however, the legislative history of the 2002 amendment of § 4-61dd, House Bill No. 6487, reveals an intent to allow referees to award a limited array of remedies in cases of whistle-blower retaliation. The 2002 amendment added, as an alternative route of adjudication for whistle-blowers, the administrative process initiated through the commission, designated the referee as an independent hearing officer and set forth the remedies the referee is authorized to award. The language of the bill as related to remedies, however, was revised before passage to “narrow [its] scope . . . .” 45 H.R. Proc., supra, p. 2863, remarks of Representative William A. Hamzy. As explained by Representative O’Rourke, the language ultimately adopted “narrow[s] it by removing maintenance of the employee’s current position, rehiring [and] reinstatement of the employee and replaces that with reinstatement to the employee’s former position, back pay and reestablishment of any employee benefits.” Id. These comments indicate that the legislature intended to cabin the variety of remedies a referee is empowered to award, particularly with respect to the equitable relief available under § 4-61dd.

In discussing, specifically, the term “any other damages,” Representative Robert W. Heagney asked Representative O’Rourke, a proponent of the amendment, “Is there any limitation on the word damages here?” Id., p. 2938. In response, Representative O’Rourke stated that “it means actual damages and that would be limiting.” Id., p. 2939. To clarify the point, Representative Heagney asked, “[W]hen used [in this bill] any other damages [its] . . . legislative intent is to limit that to actually incurred damages and not to some number that the trial referee might determine he thought appropriate without a basis?” Id. Representative O’Rourke confirmed that this was an accurate characterization of the intent behind the term, “any other damages.” Id. What this discussion makes clear is that the legislature intended “any other damages” to encompass compensation for economic harm, or as Representative Christopher R. Stone put it, those damages that would “make the employee whole.” Id., p. 2917.

We look next to the legislation that governs other types of workplace discrimination subject to the jurisdiction of the commission. General Statutes § 46a-86 (a) (formerly § 46a-82) requires the commission, “when it has found an unfair employment practice, to take such affirmative action, including, but not limited to, hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, as in the judgment of the tribunal will effectuate the purposes of this chapter.” (Internal quotation marks omitted.) Bridgeport Hospitals. Commission on Human Rights & Opportunities, 232 Conn. 91, 102, 653 A.2d 782 (1995). The language of § 46a-86 (a) evinces an intent by the legislature to impart broad powers to the commission to take “affirmative action” not limited to those listed in the statute. Neither the language of § 4-61dd or its legislative history evinces such an intent. Looking at these two pieces of legislation together, we conclude that where the legislature intends to grant broad remedial powers to the commission, there is a clear indication of such intent.

In light of the apparent legislative intent to limit the scope of the remedies the referee may award pursuant to § 4-61dd, the term “any other damages” does not encompass equitable forms of relief, but is confined to compensating victims of whistle-blower retaliation for the economic harm they suffer. We, therefore, conclude that the trial court erred in finding that the referee correctly applied the law when ordering the plaintiffs to take a professional ethics class because this remedy is not within the ambit of compensation for economic harm.

With respect to the component of the referee’s decision that ordered the plaintiffs to revise Saeedi’s September, 2008 performance appraisal to reflect a score of “four” in the area of judgment, and an overall score of “excellent,” we conclude that this remedy is authorized by the text of § 4-61dd that provides for “reinstatement to the employee’s former position . . . .” General Statutes (Rev. to 2007) § 4-61dd (b) (3) (A). The referee, in order meaningfully to implement the remedy of reinstating Saeedi to his former position, properly could order that the performance appraisal be revised to eliminate the retaliatory animus. Not only did this effectuate the purpose of the statute, but it was the only way fully to return Saeedi to his former position. Before the plaintiffs retaliated against Saeedi, he held the position of a physician with a history of sterling performance appraisals and no disciplinary record whatsoever. After the plaintiffs’ retaliation, Saeedi had a substantial record of discipline and an unsatisfactory performance appraisal, which put him in peril of being dismissed if he were to receive an additional unsatisfactory appraisal. Reinstating Saeedi to the untarnished position he held prior to the retaliation, as plainly authorized by § 4-61dd, required that the referee order a revision of Saeedi’s performance appraisal. We, therefore, conclude that the trial court did not err in finding that the referee properly ordered a revision of Saeedi’s performance appraisal to reflect specific scores. While we conclude that the trial court correctly found that the referee was acting within the scope of the authority conferred on him by § 4-6 ldd, we do not opine on whether the referee reasonably and logically could have concluded, based on the evidence before him, that the particular score he ordered was appropriate, as this question was not raised by the parties.

The judgment is reversed only as to the order for professional ethics training and the case is remanded with direction to vacate that order. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2007) § 4-61dd provides in relevant part: “(a) Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency . . . may transmit all facts and information in such person’s possession concerning such matter to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report their findings and any recommendations to the Attorney General. Upon receiving such a report, the Attorney General shall make such investigation as the Attorney General deems proper regarding such report and any other information that may be reasonably derived from such report. . . . Upon the conclusion of the investigation, the Attorney General shall where necessary, report any findings to the Governor, or in matters involving criminal activity, to the Chief State’s Attorney. . . .
      “(b) (1) No state officer or employee, as defined in section 4-141, no quasi-public agency officer or employee, no officer or employee of a large state contractor and no appointing authority shall take or threaten to take any personnel action against any state or quasi-public agency employee or any employee of a large state contractor in retaliation for such employee’s or contractor’s disclosure of information to (A) an employee of the Auditors of Public Accounts or the Attorney General under the provisions of subsection (a) of this section; (B) an employee of the state agency or quasi-public agency where such state officer or employee is employed; (C) an employee of a state agency pursuant to a mandated reporter statute; or (D) in the case of a large state contractor, an employee of the contracting state agency concerning information involving the large state contract.
      “(2) If a state . . . agency employee . . . alleges that a personnel action has been threatened or taken in violation of subdivision (1) of this subsection, the employee may notify the Attorney General, who shall investigate pursuant to subsection (a) of this section.
      “(3) (A) Not later than thirty days after learning of the specific incident giving rise to a claim that a personnel action has been threatened or has occurred in violation of subdivision (1) of this subsection, a state . . . agency employee . . . may file a complaint concerning such personnel action with the Chief Human Rights Referee .... The Chief Human Rights Referee shall assign the complaint to a human rights referee appointed under section 46a-57, who shall conduct a hearing and issue a decision concerning whether the officer or employee taking or threatening to take the personnel action violated any provision of this section. If the human rights referee finds such a violation, the referee may award the aggrieved employee reinstatement to the employee’s former position, back pay and reestablishment of any employee benefits for which the employee would otherwise have been eligible if such violation had not occurred, reasonable attorneys’ fees, and any other damages. For the purposes of this subsection, such human rights referee shall act as an independent hearing officer. The decision of a human rights referee under this subsection may be appealed by any person who was a party at such hearing, in accordance with the provisions of section 4-183. . . .
      “(5) In any proceeding under subdivision (2), (3) or (4) of this subsection concerning a personnel action taken or threatened against any state . . . agency employee . . . which personnel action occurs not later than one year after the employee first transmits facts and information concerning a matter under subsection (a) of this section to the Auditors of Public Accounts or the Attorney General, there shall be a rebuttable presumption that the personnel action is in retaliation for the action taken by the employee under subsection (a) of this section. . . .”

       Our case law frames the continuing course of conduct doctrine as one that provides for “a statute of limitations [to] be tolled . . . thereby allowing a plaintiff to commence his or her lawsuit at a later date.” (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 202-203, 746 A.2d 730 (2000).

       The extensive factual findings of the referee, which total 311 paragraphs, are not at issue in this appeal.

       In making his complaints, Saeedi described “Sonido’s ‘practice issues [as] hav[ing] ranged from not addressing the patients’ routine abnormal data and [a] lack of providing [a] basic standard of medical care beyond detoxification, to not attending [to] and managing life-threatening conditions.’ ” Saeedi also noted in a report to Forman that Sonido’s “ ‘practice issues, a few of significant concern, have been recurring’ ” and that there was an “ ‘urgent need for direct and enhanced supervision’ ” of Sonido.
      Two other hospital staff members testified before the referee as having observed deficiencies in the level of care provided to patients by Sonido.

       The referee found that Saeedi explained to Forgit the specific dangers that the metal detector posed to him, but Forgit refused to change his reassignment.

       Aftertwo unsatisfactory performance evaluations, an employee is subject to dismissal.

       Saeedi also named in his complaint Jane Buss, a physician who worked at the hospital as the medical director of ambulatory care services. On February 17, 2009, Saeedi withdrew his complaint against Buss.

       Saeedi’s union also filed grievances challenging his reassignment and suspensions.

       General Statutes (Rev. to 2007) § 4-61dd (b) (3) (A) was amended in 2011 to allow for a ninety day filing period.

       The plaintiffs argue that our Supreme Court has held that the “policy of promoting the speedy and efficient determination of claims supports a conclusion that a statutory time limit is subject matter jurisdictional.” We disagree with both their characterization of the cases they cite for this proposition and the conclusion they attempt to draw from them. In support of their argument, the plaintiffs rely exclusively on cases that address statutory appeals periods, rather than cases that concern the original filing of claims. In the cases cited by the plaintiffs, our Supreme Court has stated that the “public policies of promptness and finality” support the conclusion that “appeal periods implicate subject matter jurisdiction.” (Emphasis added.) Stec v. Raymark Industries, Inc., 299 Conn. 346, 364, 10 A.3d 1 (2010); see also HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 656, 668 A.2d 1309 (1995); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 628 A.2d 1303 (1993). The plaintiffs point to no authority, nor have we uncovered any, that extends to the initial filing of claims the reasoning applied to statutory appeals periods. In fact, following the logic set forth by the plaintiffs would turn the presumption of jurisdiction on its head, as we cannot imagine a statutory time limit for the filing of claims that does not serve to “[promote] the speedy and efficient determination of claims . . . .”

       Although the plaintiffs, in their brief to this court, refer to the thirty day filing period only as a “time limit,” based on the case law to which they cite, the arguments raised before the referee and the trial court and the actual substance of their present argument, we have determined that the term of art to which they refer is “statute of limitations.” Throughout the remainder of this opinion, we address it as such.

       As it is not at issue in this appeal, we make no comment on the propriety of the plaintiffs’ raising the referee’s subject matter jurisdiction in their answer rather than in a motion to dismiss.

       The plaintiffs, in contending that § 4-61dd contains a mandatory statute of limitations, conflated that issue with the issue of jurisdiction, claiming that the thirty day filing period is “not just procedural, but is ‘a substantive and jurisdictional prerequisite’ to bringing the action.”

       The plaintiffs, in their reply brief to this court, contend that this issue was “raised and decided by [the referee] and by the trial court.” This contention, however, misapprehends the matter. While the plaintiffs technically are correct in claiming that the statute of limitations defense was raised, what they overlook is that, bearing the burden of raising the defense in the first instance, they did not timely or properly raise it. And while the plaintiffs are, again, technically correct in asserting that the referee and the court addressed the issue of the statute of limitations, the record reflects an attempt by the referee and the court to address the plaintiffs’ ever shape-shifting arguments on this point, and their jurisdictional questions, rather than a decision on a properly raised special defense.

       We note that the referee found that Saeedi’s collective bargaining agreement did not provide for a vehicle to grieve whistle-blower retaliation claims.

       The plaintiffs’ abandonment of their jurisdictional argument is unsurprising considering our Supreme Court’s holding in Grant v. Bassman, 221 Conn. 465, 604 A.2d 814 (1992). In Grant, the Supreme Court addressed the question of “whether a claim that an injured plaintiff has elected workers’ compensation as his exclusive remedy deprives the Superior Court of subject matter jurisdiction . . . .” Id., 471. The court, adopting the reasoning of Fusaro v. Chase Brass & Copper Co., 21 Conn. Supp. 240, 154 A.2d 138 (1956), determined that “[t]he confusion [about whether electing an exclusive remedy divests a tribunal of subject matter jurisdiction] arises from the fact that the compensation procedure . . . involves a special tribunal, rather than the Superior Court”; nonetheless, electing the remedy of workers’ compensation does not result in “a lack of jurisdiction in the court but a want of a cause of action in the plaintiff.” (Emphasis omitted; internal quotation marte omitted.) Grant v. Bassman, supra, 472. Accordingly, the court explained, the claim that a plaintiff has made an exclusive election of remedies “is properly raised by a special defense,” rather than as a challenge to the jurisdiction of the court. Id.

       Even under the much broader language of § 46a-82, which authorizes the referee to take “affirmative action,” our Supreme Court has recognized that “[t]his language does not confer on the [commission] the power to impose exemplary or punitive damages on a discriminating employer, nor even to compensate the employee for any consequential or incidental damages he or she may have suffered by reason of the employer’s discriminatory conduct. Instead, it directs the [commission] to ensure that whatever remedy is fashioned for the employee be designed to return him or her to the same economic status he or she would have had in the workplace if unlawful discrimination never occurred.” (Internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights & Opportunities, supra, 232 Conn. 111.

       The plaintiffs argue that the referee had the authority to order them to conduct a new appraisal of Saeedi, but lacked the authority to order particular scores on that appraisal. We disagree with that framing of the issue. Whether the referee properly ordered that the plaintiffs issue a particular score on the appraisal is a question to be resolved by the factual record. The propriety of the referee’s having ordered that specific scores be awarded for Saeedi’s performance depends on whether the referee had an adequate evidentiary basis for concluding that the specific scores would have been awarded absent the plaintiffs’ retaliatory animus.


author: Per Curiam.

text:
    IN RE LYRICC B.

    (AC 35348)
    DiPentima, C. J., and Beach and Alvord, Js.
    Argued May 15
    officially released May 21, 2013

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       May 21, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Per Curiam.

The judgment is affirmed.


text:
    PHILIP A. SEGNERI, JR. v. FAIRFIELD VILLAGE CONDOMINIUM ASSOCIATION ET AL.
    (AC 34461)
    DiPentima, C. J., and Sheldon and Schaller, Js.
    Argued May 22
    officially released June 11, 2013
   Per Curiam.

The judgment is affirmed.


text:
    FREDERICK PAYNE v. COMMISSIONER OF CORRECTION
    (AC 33439)
    DiPentima, C. J., and Alvord and Keller, Js.
    Submitted on briefs May 17
    officially released June 11, 2013
   Per Curiam.

The appeal is dismissed.


text:
    STEVEN NECAISE v. COMMISSIONER OF CORRECTION
    (AC 33683)
    Lavme, Bear and Sheldon, Js.
    Submitted on briefs May 17
    officially released June 11, 2013
   Per Curiam.

The judgment is affirmed.


text:
    MAARTEN DE JONG v. JEM BUILDERS, INC., ET AL.
    (AC 34782)
    Gruendel, Beach and Robinson, Js.
    Submitted on briefs May 17
    officially released June 11, 2013
   Per Curiam.

The judgment is affirmed.


text:
    WILLIE SAUNDERS v. COMMISSIONER OF CORRECTION
    (AC 34323)
    Gruendel, Beach and Robinson, Js.
    Submitted on briefs May 17
    officially released June 11, 2013
   Per Curiam.

The appeal is dismissed.