author: WEST, J.

text:
    DEBORAH K. SHEIMAN v. STUART M. SHEIMAN
    (AC 21515)
    Schaller, Flynn and West, Js.
    Argued June 4
    officially released September 10, 2002

      Stuart M. Sheiman, pro se, the appellant (defendant).

      Andrew D. Cretella, with whom was Michael R. Carter, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, Stuart M. Sheiman, appeals from the judgment of the trial court modifying the custody of the parties’ minor child. On appeal, the defendant claims that the court improperly (1) failed to provide him with a fair hearing with regard to the rules of evidence and trial practice, (2) granted the plaintiffs motion to modify custody without finding a material change in the circumstances and conditions of the parties, (3) denied the defendant’s motion to strike the plaintiffs motion to modify custody, (4) granted the oral motion in limine of the minor child’s counsel in violation of Practice Book § 15-3 and (5) permitted counsel for the minor child to assert the child’s privilege under General Statutes § 52-146c (3) with respect to the confidentiality of certain of the child’s treatment records without appointing a guardian ad litem. We affirm the judgment of the trial court.

The plaintiff, Deborah K. Sheiman, and the defendant were married in Connecticut in 1979. One child, a daughter, was bom of the marriage in 1987. The parties’ marriage was dissolved pursuant to a judgment rendered on May 13, 1992. The dissolution court granted the defendant sole custody of the child and awarded the plaintiff reasonable rights of access and visitation. On August 4,1999, the plaintiff filed a motion for modification of custody, claiming that since the dissolution, there had been “substantial changes in the circumstances of the parties and of the child in that the child, who is twelve years old, has expressed a profound preference to be with the plaintiff mother, and there [have] been other changes in circumstances which will be made known to the corut.”

Following an evidentiary hearing, the court granted the motion and awarded the plaintiff sole custody of the child. The defendant was granted visitation rights to be exercised only at the behest of the child. In its memorandum of decision, the court recited the difficult psychological circumstances of the parties and their daughter. To wit, “[t]he threshold issue is the clear change in circumstances which occurred since the date of the last custody review. It is patent that the defendant engaged in such erratic and unreasonable behavior in his parenting activities that not only have circumstances changed, but there is a desperate need for a legal change. The most revealing, and disturbing, testimony came from the family services officer, [who] advised the court, in response to a query, that its real ‘job’ in this matter was choosing the [less] harmful custodian rather than the [better] custodian.” (Emphasis in original.)

The court found that the assessments of the family services worker were supported by the testimony of the parties and other witnesses at the modification hearing. Those assessments were that the child is steadfast in her insistence that she does not want to see the defendant. During her home visits, the family services worker observed no expressions of affection between the child and the defendant and the child had nothing to say to the defendant. The child might reconsider her refusal to visit with the defendant if the defendant gets help for his anger. The defendant was loud and abusive toward the family services worker. The child is frightened that the court will order her to return to the defendant’s home. The defendant is completely unwilling to recognize or accept his responsibility for the breakdown in his relationship with the child. Since the child moved into the plaintiffs home, the defendant has made no effort to contribute to the child’s support.

By contrast, the court found that there is warmth and affection between the child and the plaintiff. They engage well verbally. The plaintiff has been unsuccessful in her efforts to encourage the child to visit with the defendant. Although the child’s school work has “slipped” somewhat since she left the defendant’s home, this problem is offset by her dramatically improved socialization, which is a positive. The child has not been coached or coerced as to her living and custodial preference. The child’s personality probably is stronger than the plaintiff’s, and she is capable of making mature and competent decisions.

In addition, the court also recited its observations of the defendant’s demeanor and behavior during the hearing and noted that the defendant is capable of verbally abusive conduct. He verbally abused the child’s counsel on numerous occasions. In the courtroom, the defendant was impolite and discourteous to all. He devoted most of his energy to vilifying the plaintiff. He also abused the legal process to obtain the plaintiff’s private records.

I

The defendant’s first claim is based on his perception that the court did not provide him with a fair hearing and was predisposed to grant the plaintiffs motion for modification. We are not persuaded.

The basis of the defendant’s claim lies in comments made by the court after a short calendar hearing held approximately six weeks before the hearing on the motion to modify custody. On the basis of the court’s statements, the defendant claims that the court had prejudged the motion to modify before hearing the evidence and that the court’s findings were influenced by its predisposition. The defendant asks this court to afford plain error review to his claim and to read the entire transcript to elucidate his claim. The defendant did not file a motion seeking to have the trial court recuse itself.

“The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 60-5. “[T]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . The doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Hair, 68 Conn. App. 695, 705, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).

We have reviewed in its entirety the transcript of the short calendar hearing to which the defendant makes reference as the basis of his claim. The subject of the hearing was a motion for contempt filed by the counsel for the child in an effort to secure court-ordered treatment for the child. Both the plaintiff and the defendant had been unable or unwilling to agree as to who or how the bill for the treatment would be paid. The transcript reveals that securing treatment for the child was a time-consuming process and that the parties could not work together. Although we agree with the defendant that the court’s remarks were ill-advised, we cannot conclude that they were partial to one side or the other or that they indicate that the defendant would not receive a fair hearing. The court’s remarks were addressed to the parties together and the manner in which they had conducted themselves with respect to their child. Although it would have been better for the court to refrain from giving voice to its frustration with the parties, we cannot conclude that the court was predisposed to grant the plaintiff’s motion to modify custody, as the decision was supported by the evidence. See part II.

II

The defendant’s second claim is that the court improperly granted the plaintiffs motion to modify custody without finding a material change in circumstances. We conclude that the court did not abuse its discretion when it granted the plaintiffs motion.

“The authority to render orders of custody and visitation [is] found in General Statutes § 46b-56, which provides in part: (a) In any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . . . (b) In making any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child .... Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. . . . The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [granting the plaintiffs motion]. The trial court had the advantage of observing the witnesses and the parties. Considerable evidence was presented concerning the activities of the parties since [the dissolution of the marriage]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Citations omitted; internal quotation marks omitted.) Lane v. Lane, 64 Conn. App. 255, 256-57, 779 A.2d 859 (2001).

On the basis of our review of the record, we conclude that the court did not abuse its discretion when it concluded that the facts found constituted a material change in circumstances and ordered sole custody of the child to be with the plaintiff.

III

The defendant’s third claim is that the court improperly denied his motion to strike the plaintiffs motion to modify custody. We agree with the court that a motion to strike does not apply to a motion to modify custody.

This court’s standard of review of claims concerning a motion to strike is plenary. Barasso v. Rear Still Hill Road, LLC, 64 Conn. 9, 12, 779 A.2d 198 (2001). Practice Book § 10-39 (a) provides that a party wanting to contest the legal sufficiency of a complaint, counterclaim, cross claim or any counts contained therein or a prayer for relief, the joining of two or more causes of action or the legal sufficiency of an answer may file a motion to strike. A motion for modification of custody does not fall within the ambit of Practice Book § 10-39. The court therefore did not improperly deny the defendant’s motion to strike.

IV

The defendant’s next claim is that the court improperly granted an oral motion in limine made by the minor child’s counsel in violation of Practice Book § 15-3, which requires that motions in limine be made in writing.

“[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and . . . evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of a substantial prejudice or injustice.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 68 Conn. App. 68, 76-77, 789 A.2d 1005, cert. denied, 260 Conn. 903, 793 A.2d 1088 (2002).

Prior to the hearing on the motion to modify custody, the plaintiff filed a motion in limine pursuant to Practice Book § 15-3. The purpose of the motion was to preclude testimony from an expert witness who had provided treatment to the plaintiff and the minor child. The plaintiff claimed that any communication between the expert and herself was privileged pursuant to statute and that any testimony the expert might give with respect to the child was irrelevant and stale. The court heard argument on the motion during the hearing on the motion to modify. At that time, counsel for the child supported the motion in limine with respect to the child. The defendant admitted that the expert had not seen the child for more than one year. The court granted the motion in limine. We conclude that the court did not abuse its discretion in granting the motion and that our rules of practice permitted counsel for the child to be heard on the motion. See Practice Book § 15-3.

V

The defendant’s last claim is that the court improperly permitted counsel for the minor child to assert the child’s privilege under § 52-146c (3) against him with respect to testimony about medical treatment the child had received without appointing a guardian ad litem for the child. We do not agree.

The defendant’s claim arises out of his previous claim regarding the plaintiffs motion in limine. See part IV. In essence, the defendant claims that the court should not have permitted the child’s counsel to support the motion in limine to protect the confidentiality of the child’s treatment over the defendant’s desire to put the substance of that treatment into evidence. That claim is controlled by our Supreme Court’s decision in Ireland v. Ireland, 246 Conn. 413, 435-40, 717 A.2d 676 (1998) (en banc).

General Statutes § 46b-54 provides in relevant part: “(a) The court may appoint counsel for any minor child ... if the court deems it to be in the best interests of the child . . . . (b) Counsel for the child . . . may also be appointed . . . when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . . where it finds immediate action necessary in the best interests of any child, (c) Counsel for the child . . . shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child . . . .”

“The purpose of appointing counsel for a minor child ... is to ensure independent representation of the child’s interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation. Schult v. Schult, [241 Conn. 767, 778, 699 A.2d 134 (1997)].” (Internal quotation marks omitted.) Ireland v. Ireland, supra, 246 Conn. 436. “We conclude that such representation is . . . the type of representation enjoyed by unimpaired adults. In other words, the attorney for the child is just that, an attorney, arguing on behalf of his or her client, based on the evidence in the case and the applicable law. . . . Thus, an attorney for a minor child shall be heard in a similar manner as most other attorneys are heard, that is, through such methods as written briefs, questioning of witnesses, oral arguments, and other proceedings that take place during the course of a trial.” (Emphasis in original.) Id., 438-S9.

On the basis of our review of the court’s findings and Ireland, we conclude that the court properly permitted the minor child’s attorney to assert the child’s statutoiy privilege with respect to her treatment records.

The judgment is affirmed.

In this opinion the other judges concurred.

       The facts reveal that the parties’ child already was living with the plaintiff and that the motion sought judicial approval of the circumstances.

       The child was represented by counsel, who took an active part in the hearing.

       The court also indicated that it inferred from the judgment of the dissolution court that it had “to choose the lesser of two flawed choices.”

       The record discloses that the parties and counsel for the child had filed more than 150 motions with the court between the judgment of dissolution and the judgment modifying custody.

       We decline the defendant’s invitation to read the hearing transcript consisting of approximately 500 pages to find the allegations of partiality that he lists in his brief. The defendant’s brief does not comply with the rules of practice.
      Practice Book § 67-4 (d) provides in relevant part: “The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. The argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.” (Emphasis added.)
      This court is not required to read the transcript, although it may do so in a proper case. See Practice Book § 67-1; Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 696, 740 A.2d 885 (1999), cert. denied, 252 Conn. 922, 747 A.2d 518 (2000). It is not the duty of this court to construct the defendant’s appeal.

       Practice Book § 15-3 provides: “The judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence. If a case has not yet been assigned for trial, a judicial authority may, for good cause shown, entertain the motion. Such motion shall be in writing and shall describe the anticipated evidence and the prejudice which may result therefrom. A1 interested parties shall be afforded an opportunity to be heard regarding the motion and the relief requested. The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding.”

         We are mindful that Ireland distinguishes the roles of an attorney for a minor child and a guardian ad litem for a minor child. The defendant here did not seek to have the court appoint a guardian ad litem for his daughter.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    DOUGLAS R. DANIELS v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 22215)
    Dranginis, Flynn and Daly, Js.

      Argued June 10
    officially released September 10, 2002

      Kenneth A. Votre, for the appellant (plaintiff).

      Michael P. Bowler, assistant bar counsel, for the appellee (defendant).

       This appeal was argued before a panel comprised of Judges Dranginis, Flynn and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Kather, the parties stipulated that they would permit the remaining two judges alone to render the written decision.

   Opinion

DRANGINIS, J.

The plaintiff, Douglas R. Daniels, appeals from the judgment of the trial court dismissing his appeal from the reprimand issued to him by the defendant statewide grievance committee. On appeal, the plaintiff claims that the court improperly held that his failure to pay in a timely manner the default judgment that had been rendered against him violated rule 8.4 (4) of the Rules of Professional Conduct and that his failure to answer the grievance complaint against him in connection therewith violated Practice Book § 2-32 (a) (l). We conclude that the court properly dismissed the plaintiffs appeal, and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff is an attorney licensed to practice law in Connecticut. On October 3, 1997, Barbara K. Butler retained the plaintiff to represent her in a legal separation from her husband. Two days later, Butler paid the plaintiff a $5000 retainer. In late October, the plaintiff sent Butler a retainer agreement, which stated, in part, that the $5000 retainer fee was nonrefundable. During that time, Butler told the plaintiff that she had decided not to separate from her husband. Because Butler believed that the money would be safe if left in the plaintiffs client’s trust fund, she did not seek the return of her retainer fee. In April, 1998, Butler reconciled with her husband. She wrote to the plaintiff in July, 1998, and asked him to return her retainer fee, but he did not respond. Thereafter, Butler sent the plaintiff two more letters renewing her request for the return of her retainer. The last letter was sent by certified mail, but he still failed to respond to her request.

Butler then retained another attorney, who sent the plaintiff two letters requesting the return of the retainer fee. The plaintiff did not respond. Butler then commenced an action against the plaintiff to collect a full refund of her retainer. The original writ of summons and complaint were served in hand on the plaintiff in December, 1998, yet he failed to appear and to defend against the action. Thereafter, the court rendered a judgment of default in favor of Butler in the amount of $5708.09.

On July 1,1998, Butler wrote to the plaintiff notifying him of the default judgment. The plaintiff did not pay the default judgment, and on October 4, 1999, Butler filed a grievance complaint against him, alleging professional misconduct. In accordance with Practice Book § 2-29 (a) and General Statutes § 51-90e, the defendant referred the complaint to the local grievance panel in the judicial district of New Haven. Two days later, the office of the statewide bar counsel sent the plaintiff, by certified mail, a copy of Butler’s grievance complaint and an explanatory cover letter. Thereafter, the local grievance panel wrote to the plaintiff to remind him that his answer to the grievance was overdue. In the fall of 1999, the local grievance panel telephoned the plaintiff and informed him that his failure to pay the default judgment could in and of itself constitute grounds for violating Practice Book § 2-32.

At the hearing before the local grievance panel, the plaintiff testified that he did not receive a copy of the complaint from the statewide bar counsel’s office. Thereafter, on March 13,2000, the local grievance panel determined, among other things, that there was probable cause to believe that the plaintiff had violated rule 8.4 (4) and Practice Book § 2-32.

Two days prior to the May 4, 2000 hearing before a reviewing committee of the defendant, the plaintiff paid Butler $6578.46, which represented the judgment plus postjudgment statutory interest of 10 percent. The reviewing committee issued a reprimand on September 1, 2000, on the basis of its finding by clear and convincing evidence that the plaintiff had violated rule 8.4 (4) when he failed to appear in the civil action and failed to pay timely the judgment that had been rendered against him, and had violated Practice Book § 2-32 (a) (1) when he failed to answer the grievance complaint. The plaintiff thereafter filed a request with the defendant for review of the decision. The defendant upheld the reprimand, but reversed that part of the decision that found that the plaintiff had violated rule 8.4 (4) by failing to appear in the civil action. Subsequently, the plaintiff appealed from the reprimand to the Superior Court, which sustained the defendant’s decision. Thereafter, the plaintiff filed the present appeal.

The plaintiff claims that his conduct neither violated rule 8.4 (4) nor Practice Book § 2-32. Specifically, he argues that rule 8.4 (4) requires a finding of scienter and, therefore, without evidence that he intentionally attempted to disrupt or to hinder the civil action against him, his failure to pay the judgment promptly, standing alone, does not constitute an act of disobedience that violates rule 8.4 (4). The plaintiff next argues that because he did not receive a copy of the complaint from the statewide bar counsel and because the record does not contain a copy of the certified mail receipt, he established good cause for his failure to respond to the grievance and, thus, the reviewing committee could not have found by clear and convincing evidence that he had violated Practice Book § 2-32. Furthermore, he argues that Practice Book § 2-32 (a) (2) (H) bars the defendant from exercising jurisdiction over claims against lawyers for nonpayment of default judgments. To the contrary, the defendant maintains that clear and convincing evidence existed that the plaintiff violated rule 8.4 (4) and Practice Book § 2-32, and, thus, the court properly upheld the defendant’s decision to reprimand the plaintiff. We agree with the defendant.

Initially, we set forth the applicable standard of review. We recognize that the defendant is not an administrative agency within the meaning of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. See Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526, 576 A.2d 532 (1990) (statewide grievance committee not agency for purposes of Uniform Administrative Procedure Act, but arm of court). It is well established, however, that the scope of the court’s review of the defendant’s decision is similar to the limited scope of review given to the decision of an administrative body. “[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct. . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence. . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof.” (Internal quotation marks omitted.) Yamin v. Statewide Grievance Committee, 53 Conn. App. 98, 100, 728 A.2d 1128 (1999). Finally, as a reviewing court “[w]e must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Dixon, 62 Conn. App. 507, 511, 772 A.2d 160 (2001).

Applying those principles, we conclude that the court properly determined that the record before the defendant supported the conclusion that the plaintiff had violated rule 8.4 (4) and Practice Book § 2-32 (a) (1). The court noted that the summons and complaint were served on the plaintiff in hand, Butler’s attorney had mailed to the plaintiff a copy of the judgment against him and the statewide bar counsel’s office had mailed a copy of the grievance complaint to the plaintiff four months before the grievance panel found probable cause that he had violated rule 8.4 (4) and Practice Book § 2-32 (a) (1). On the basis of those facts, we agree with the court that “the notice to the plaintiff could not have been more compelling.” We therefore conclude that the court properly determined that the defendant established by clear and convincing evidence that the plaintiff had failed to pay the default judgment in a timely manner, particularly in light of the adequate notice.

We also reject the plaintiffs argument that the failure to pay a judgment promptly does not constitute a violation of rule 8.4 (4) and that intent is a prerequisite finding to a violation of that rule. Regarding that point, the court correctly stated: “Judges no less than lawyers are chargeable for deviations from the codes governing their conduct, even though the application of the canons to particular circumstances may not be readily apparent. [Patterson v. Council on Probate Judicial Conduct, 215 Conn. 553, 567, 577 A.2d 701 (1990)]; Grievance Committee v. Rottner, 152 Conn. 59, 65-66, 203 A.2d 82 (1964). A judge may be sanctioned for a wilful violation of one of the canons of judicial conduct if he intended to engage in the conduct for which he is sane-tioned whether or not [he] knows that he violates the rule. In re Flanagan, 240 Conn. 157, 183, 690 A.2d 865, cert. denied, 522 U.S. 865, 118 S. Ct. 172, 139 L. Ed. 2d 114 (1997).” (Internal quotation marks omitted.) That reasoning equally is applicable to lawyers and, therefore, we conclude that the court properly held that rule 8.4 (4) does not have a scienter requirement.

Trial courts that have considered claims of violations of other ethical rules have held that those rules also contain no scienter requirement. See, e.g., Statewide Grievance Committee v. Solomon, judicial district of New Haven at Meriden, Docket No. 269373 (February 8,2000) (Rules of Professional Conduct 8.4 [3]); Gersten v. Statewide Grievance Committee, judicial district of Hartford-New Britain at Hartford, Docket No. 565949 (June 10, 1997) (19 Conn. L. Rptr. 554, 555) (construing Rules of Professional Conduct 1.8 [a] and determining that “[i]t is not a defense to an ethical violation that the attorney did not act in bad faith or intend to violate the code”); see also In re Zoarski, 227 Conn. 784, 791, 632 A.2d 1114 (1993) (judge’s intent not relevant to conclusion that his conduct was “ ‘prejudicial to the impartial and effective administration of justice’ ”). Although this court is not bound by trial court decisions; LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 831 n.2, 798 A.2d 445 (2002); we agree with their reasoning on the subject and adopt it here.

Last, with regard to the plaintiffs argument that he established good cause for failing to answer the complaint because he did not receive a copy of it from the statewide bar counsel’s office, we agree with the court that the mailing of a properly addressed letter creates a presumption of timely notice unless contrary evidence is presented. See Console v. Torchinsky, 97 Conn. 353, 356, 116 A. 613 (1922); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 52, p. 259. In attempting to rebut the presumption, the plaintiff offered no evidence to support his allegation that he did not receive a copy of the complaint except his own testimony that he was having trouble getting mail delivered and the absence of a copy of the certified mail receipt in the record. We conclude that the plaintiff did not overcome the presumption. On the basis of our review of the record, we conclude that there was no evidence that the envelope had been returned by the postal authorities with an endorsement showing failure of delivery. We therefore reject the plaintiffs claim that he established good cause for not responding to Butler’s complaint and conclude that his claim is without merit. Accordingly, we affirm the judgment of the trial court upholding the defendant’s decision to reprimand the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(4) Engage in conduct that is prejudicial to the administration of justice . . . .”

       “The Rules of Professional Conduct have been adopted by the judges of the Superior Court and govern the professional rights and obligations of attorneys practicing law in Connecticut.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 446 n.3, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).

       Practice Book § 2-32 (a) provides in relevant part,: “Any person, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court,. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt, of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:
      “(1) forward the complaint to a grievance panel in the judicial district in which the respondent, maintains his or her principal office or residence, provided that, if the respondent does not maintain such an address in this state, the statewide bar counsel shall forward the complaint to any grievance panel; and notify the complainant and the respondent, by certified mail with return receipt, of the panel to which the complaint was sent. The notification to the respondent shall be accompanied by a copy of the complaint. The respondent shall respond within thirty days of the date notification is mailed to the respondent unless for good cause shown such time is extended by the grievance panel. The response shall be sent to the grievance panel to which the complaint has been referred. The failure to file a timely response shall constitute misconduct unless the respondent establishes that the failure to respond timely was for good cause shown . . . .”

       “Each judicial district has one or more grievance panels consisting of two members of the bar and one layperson, all of whom are appointed by the Superior Court. The committee refers complaints to a panel, which then investigates and determines whether probable cause exists.” Statewide Grievance Committee v. Fountain, 56 Conn. App. 375, 376 n.1, 743 A.2d 647 (2000).

       The statewide bar counsel’s office sent the complaint and cover letter to both 123 York Street and 234 Church Street, New Haven. The former address was the address the plaintiff had registered with the statewide grievance committee pursuant to Practice Book § 2-27 (d), and the latter address was the address listed on Butler’s grievance complaint.

       The reviewing committee found that “there is clear and convincing evidence that the [plaintiff] was personally served with a copy of [Butler’s] lawsuit, but did not appear in the matter [and] then did not timely pay the judgment rendered against him.” In its proposed decision, the reviewing committee concluded: “We conclude that this conduct violated rule 8.4 (4) of the Rules of Professional Conduct. We also believe that there is clear and convincing evidence that the [plaintiff] knew of the grievance complaint in the fall of 1999 when he was contacted by panel counsel, but did not file an answer to the complaint in violation of Practice Book § 2-32 (a) (1) of the [rules of practice]. We do not find credible the [plaintiffs] testimony that panel counsel’s notification to him of the lawsuit and judgment in the fall of 1999 was his first notice of the lawsuit. The [plaintiff] was clearly served in hand by a sheriff in December of 1998.”

       Under Practice Book § 2-32 (a) (2) (H), the state bar counsel may dismiss a complaint if “the complaint alleges the nonpayment of incurred indebtedness . .

       “[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Yamin v. Statewide Grievance Committee, 53 Conn. App. 98, 100-101, 728 A.2d 1128 (1999).


author: MIHALAKOS, J.

text:
    UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 21740)
    Mihalakos, Bishop and Daly, Js.

      Argued May 8
    officially released September 10, 2002

      Daniel A. Schwartz, with whom, on the brief, were Albert Zakarian and Meredith G. Diette, for the appellant (plaintiff).

      Alix Simonetti, assistant commission counsel II, with whom was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).

      Philip L. Steele, for the appellee (defendant Gale Nestor).

       This appeal was argued before a panel comprised of Judges Mihalakos, Bishop and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a written decision.

   Opinion

MIHALAKOS, J.

In this gender discrimination case, the plaintiff employer, United Technologies Coiporation, Pratt and Whitney Aircraft Division (Pratt & Whitney), appeals from the judgment of the trial court, which dismissed Pratt & Whitney’s administrative appeal from an order and award by a hearing officer for the defendant commission on human rights and opportunities (commission) in favor of the defendant employee, Gale Nestor. On appeal, Pratt & Whitney claims that the court improperly (1) affirmed the commission’s clearly erroneous factual findings, and (2) concluded (a) that substantial evidence demonstrated that Nestor and a male coworker were similarly situated, (b) that the commission properly admitted and relied on evidence of past discrimination, (c) that sufficient evidence existed to show gender discrimination and (d) that the decision should be affirmed despite the lack of discriminatory intent or motive on the part of Pratt & Whitney or any of its employees. We affirm the judgment of the trial court.

The relevant facts of this matter, as found by the commission’s hearing officer and later adopted by the court, may be summarized as follows. In November, 1973, Pratt & Whitney hired Nestor to work in its East Hartford facility as an engine lathe operator, labor grade eight. During the course of the next decade, Nestor received three promotions and became one of sixteen tool inspectors B, labor grade four. In 1984 and 1985, fourteen male inspectors were promoted, leaving behind only one male inspector who was out of work on a disability leave and Nestor, despite the fact that she demonstrated or exceeded the requisite fitness, ability and seniority necessary for promotion. In 1991, a job reclassification “promoted” Nestor, but left her at effectively the same level in relation to the inspectors from her original group.

Nestor first met an employee named Benjamin L. Elmore in 1979. In 1988, they were assigned to work in the same area. In 1990, Nestor began to have problems with Elmore because he frequently made comments about her body, rear end, breasts and bra. That year, Nestor reported three incidents in which Elmore had directed lewd gestures and comments toward her. Realizing that the problems between her and Elmore were known commonly, Nestor sought a transfer both within and outside of her assigned department. Nestor’s requests were ignored until her supervisor, Joseph E. Bums, Jr., told her he would implement a transfer if she accepted a demotion. Nestor declined.

At work, Burns treated women differently from men. Generally, he would not engage in casual conversation with female employees, but would do so with male employees. Bums would assign work to female employees, but would not discuss it with them even when problems arose. Moreover, Bums’ attitude toward women was typical at Pratt & Whitney, in which a “male atmosphere” was pervasive. For example, Bums ignored Nestor’s gender discrimination complaints because he did not view them as such. He also observed dirty jokes and lewd pictures circulated around the department. In fact, most males at Pratt & Whitney had a standard practice of circulating those items.

On July 27,1992, another incident took place between Nestor and Elmore in front of the department’s time clock. At 11:45 p.m. that night, Nestor left her station to punch out her work for the night. When she arrived at the time clock, Elmore and another employee, Richard W. Grous, were socializing. Elmore was searching for his job card in the card racks next to the time clock. At the same time, Grous was attempting to punch his card at the time clock. Nestor stood behind Grous and waited for him to complete his transaction. When Grous finished and walked away from the time clock, Elmore was still searching for his card. It was not uncommon for one employee to punch out while another was preparing to do so. Seeing that Elmore was not yet prepared, Nestor approached the time clock and began punching out.

When Elmore noticed Nestor at the clock, he said, “[0]h, no you don’t,” and approached the clock. He then reached across the front of Nestor, pushed up against her and pushed her hand away from the clock, which effectively prevented her from punching out. Elmore continued to push against Nestor as she tried to reach the clock, again blocking her hand from swiping her card. Elmore also pushed the “cancel” button on the clock, which canceled Nestor’s transaction. Elmore repeated that behavior and kept his finger on the “cancel” button. Nestor tried to push his finger away from the button.

Nestor held her ground as Elmore continued to press his body against her and tried to push himself between her and the clock. Nestor felt offended and uncomfortable with the close contact, which included Elmore pressing his torso against her body and pressing against her chest. Nestor shouted, “[G]et away, you pervert. Get off me, you pervert.” Elmore stepped back, but then reinitiated the pushing with even more contact than before. Grous, who was still nearby, saw Elmore and Nestor pushing against each other. He heard Nestor say, “watch where you’re touching.” Grous then reported the ongoing incident to Bums.

Meanwhile, Nestor yelled again at Elmore, but he did not move away. Nestor used her elbow and kicked her leg behind her to try to break off the physical contact with Elmore. After Grous reported the incident, Bums observed Elmore and Nestor trying to get to the time clock at the same time. From the time clock, Nestor looked up toward Bums’ office and saw him, but realized that he could not fully see the time clock area. Bums then went to the time clock, and Elmore broke off physical contact with Nestor and moved to one side.

Bums stood in front of the time clock and told Nestor, “Stop it. It’s not worth losing your job over. You’re acting like kids.” When Nestor pointed out that Bums was addressing only her, Bums stepped back and included Elmore in the discussion. Bums then sent Nestor and Elmore to his office. Later, he sent Nestor and then Elmore to punch out. Bums then wrote a letter about the incident to his manager, Martin R. Bern.

The next day, Bums discussed the matter with Bern, and Nestor was transferred to another section of the department the following day. Elmore remained in his position for about one day but then also was transferred. After the transfer, Nestor tried to tell Bums that she only was defending herself during the incident, but he refused to talk to her. Nevertheless, Bums willingly spoke about the incident with Elmore. Elmore claimed that he was not defending himself but was simply preventing Nestor from clocking out before him.

An internal investigation followed in which numerous statements were taken from various employees who witnessed or were involved in the incident. The investigation was riddled, however, with faulty procedures such as not properly recording the substance of what witnesses told investigators despite being advised by witnesses that this was the case. Investigators also would not allow employees to draft their own statements. A report based on the investigation was issued to Bums and Berr, who met to review it. Although Bums did not know who started the incident, he and Berr decided that Nestor had been fighting, which was against Pratt & Whitney’s rules, and that she had been the aggressor. Bums offered no defense for Nestor when asked for one by Berr and recommended to Berr that her employment be terminated. He also recommended that Elmore be retained. Berr decided to accept Bums’ recommendation. Consequently, on September 2, 1992, Bums informed Nestor that her employment had been terminated, and he escorted her to the security guard’s station outside the plant. Elmore, on the other hand, received only a one day suspension. Following a grievance procedure initiated through her union, Nestor returned to work on February 26, 1993.

Prior to returning to work, however, Nestor filed a timely charge of discrimination with the commission. In her complaint, Nestor alleged that she had been terminated from her position with Pratt & Whitney because of her gender in violation of General Statutes §§ 46a-58 (a) and 46a-60 (a) (l), and Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq., as amended. Nestor also alleged that she suffered “ongoing harassment” from Elmore between August, 1990, and April, 1991. On June 1, 1998, Pratt & Whitney filed a motion in limine to preclude evidence of that and other claims of harassment, which it deemed time barred, from the commission’s public hearings regarding Nestor’s discrimination claim. That motion was denied.

On September 20, 1999, the commission issued a memorandum of decision and order, which concluded that Nestor had established a prima facie case of discrimination. In other words, the commission concluded that Nestor was a member of a protected class, i.e., a female, who was qualified for her position at the time she was terminated for allegedly violating a work rule, and that a similarly situated employee who was not in the protected class, i.e., a male, had been treated differently. The commission also concluded that Nestor had met her burden of demonstrating that Pratt & Whitney’s proffered nondiscriminatory reason for the termination, namely, that the actions of the two employees were different and required different treatment, merely was a pretext for the disparate treatment of Nestor on the basis of her gender. The commission specifically noted that Pratt & Whitney’s investigation was not credible due to the manner in which it was made. In making that point, the commission recognized that employers are sophisticated enough to use investigations, such as the one here, to shield their true animus toward an employee. The commission also noted that the evidence of prior actions of Pratt & Whitney and its employees was admissible and useful, despite the fact that the prior actions no longer were actionable as discrimination claims unto themselves, because that evidence clearly demonstrated that Nestor’s termination more probably was the result of discrimination.

Ultimately, the commission ruled that Pratt & Whitney had been motivated to terminate Nestor’s employment on the improper basis of gender bias in violation of § 46a-60 (a) (1). The commission ordered Pratt & WTiitney to reinstate Nestor, to allow her to participate in various retirement programs and to remit to her a total back pay award in the amount of $12,126 plus interest at 10 percent from September 2, 1992. On November 5,1999, Pratt & Whitney initiated an administrative appeal to the Superior Court. Pratt & Whitney challenged the commission’s conclusions that Nestor and Elmore were similarly situated and that there was substantial evidence of pretext and gender bias. Pratt & Whitney also argued that the commission improperly admitted and relied on evidence of harassment prior to the time clock incident.

On February 20, 2001, the court affirmed the commission’s order and award. In a thorough memorandum of decision in which the court relied on federal law for guidance relative to employment discrimination, the court concluded that Nestor and Elmore were similarly situated because they were both inspectors who had the same supervisor and were subject to the same standards for performance evaluation and discipline, and because they equally were at fault for the time clock incident. The court next concluded that substantial evidence of gender bias and pretext did exist. First, the court noted the uneven enforcement of Pratt & Whitney’s rules against similarly situated employees. It cited evidence of a flawed investigation. Next, the court discussed Bums’ defective summation of the time clock incident to Berr, which caused Berr and, therefore, Pratt & Whitney’s decision to terminate Nestor’s employment to be tainted with Bums’ discriminatory motive. The court concluded that the introduction of and reliance on the challenged evidence was not an abuse of discretion. This appeal followed. Additional relevant facts and procedural history will be provided as necessary.

First, we note the analysis that must be undertaken to determine whether discrimination has occurred. “When a plaintiff cannot prove directly the reasons that motivated an employment decision ... a plaintiff may establish a prima facie case of discrimination through inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for an employment action. . . . From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons.” (Citation omitted; internal quotation marks omitted.) Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 224-25, 676 A.2d 844 (1996).

“If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatoiy reason for its actions. ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Citations omitted; internal quotation marks omitted.) Erisoty v. Merrow Machine Co., 34 Conn. App. 708, 710-11, 643 A.2d 898, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994).

We also emphasize at the outset that our review of the court’s judgment upholding the commission’s decision is narrow and has the same scope as the trial court’s review in this case. “We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (TJAPA), General Statutes § 4-166 et seq.] . . . 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. . . . [Constrained by a narrow scope of review] [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. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183 (j) (5) and (6). 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. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it 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.” (Citations omitted; internal quotation marks omitted.) Elf v. Dept. of Public Health, 66 Conn. App. 410, 417-19, 784 A.2d 979 (2001). Within the framework of those principles, we now review Pratt & Whitney’s claims, which essentially challenge each phase of the previously presented analysis.

I

Pratt & Whitney first claims that the court improperly affirmed the commission’s clearly erroneous factual findings. Specifically, Pratt & Whitney asserts that the commission distorted and ignored certain testimony, made arbitrary findings, and overlooked damaging testimony from and documentary evidence against Nestor about her role in the July 27, 1992 incident. Further, Pratt & Whitney contends that the commission’s hearing officer improperly adopted, almost verbatim, more than 100 findings of fact that had been proposed to the hearing officer by the commission. Consequently, Pratt & Whitney requests that this court review the record de novo and substitute its factual findings for those that were adopted by the commission’s hearing officer and affirmed by the trial court. That claim is without merit.

Despite the defendant’s framing of the issue, we have noted previously that the substantial evidence rule, and not the clearly erroneous standard, governs our review of an agency’s findings of fact. See id. Here, however, we need not undertake such a review. “It is well settled that the trial court can be expected to rule only on those matters that are put before it. . . . With only a few exceptions . . . we will not decide an appeal on an issue that was not raised before the trial court. . . . To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez, 61 Conn. App. 700, 713, 767 A.2d 756 (2001).

Pratt & Whitney did not challenge the findings of fact in its initial appeal to the trial court. Rather, it challenged the commission’s legal conclusions and an evidentiary ruling. Further, although Pratt & Whitney did raise a concern over the almost verbatim adoption of more than 100 proposed findings of fact to support its claim on appeal that the commission’s conclusions were incorrect, that matter was not raised before the court as a separate and specific issue. We also have stated that “[a]ppellate pursuit of so large a number of issues forecloses the opportunity for a fully reasoned discussion of pivotal substantive concerns [by the appellant]. A shotgun approach does a disservice both to this court and to the party on whose behalf it is presented.” (Internal quotation marks omitted.) LaBow v. LaBow, 65 Conn. App. 210, 211, 782 A.2d 200, cert. denied, 258 Conn. 943, 786 A.2d 430 (2001). In challenging the adoption of so many findings, Pratt & Whitney has pursued just such an approach. Moreover, our Supreme Court consistently has held that “de novo review is inappropriate for review of the factual findings of administrative agencies.” Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 551, 636 A.2d 1360 (1994). Accordingly, we decline to review the claim.

II

Pratt & Whitney also challenges certain conclusions reached by the court in its review of the commission’s decision on certain questions of law. For such issues, we employ anew the standard used by a trial court to review an agency’s conclusions: “[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.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001) . We are mindful, however, that “[n]ot only is a reviewing court prohibited from substituting its judgment for that of the commission, but the decision of the commission must be sustained if an examination of the record discloses evidence that supports any one of the commission’s reasons. . . . The question is not whether the trial court would have reached the same conclusion but whether the record before the [commission] supports the decision reached.” (Internal quotation marks omitted.) Pinchbeck v. Planning & Zoning Commission, 69 Conn. App. 796, 800, 796 A.2d 1208 (2002) . We now address each of Pratt & Whitney’s challenges seriatim.

A

First, Pratt & Whitney claims that the court wrongly concluded that the commission properly determined that Nestor and Elmore were similarly situated. Thus, Pratt & Whitney contends that Nestor failed to prove one of four requirements necessary to establish a prima facie case of employment discrimination. We disagree.

To establish a prima facie claim of disparate treatment under a facially neutral employment policy, it is necessary for the employee to produce evidence of four elements: (1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination. Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997); Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002). To meet the fourth prong of that prima facie showing, a female employee must establish that “she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred.” (Internal quotation marks omitted.) Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997). In other words, the female employee must show that in all material respects, she was similarly situated to a male employee, but was treated differently on the basis of her gender. Shumway v. United Parcel Service, Inc., supra, 64. For example, an employee could show that she and a male employee “reported to the same supervisor . . . [were] subject to the same standards governing performance evaluation and discipline, and . . . engaged in [similar] conduct . . . without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it.” Mazzella v. RCA Global Communications, Inc., 642 F. Sup. 1531, 1547 (S.D.N.Y. 1986), aff'd, 814 F.2d 653 (2d Cir. 1987). It is important to note, however, that being similarly situated in all material respects does not require one to demonstrate “disparate treatment of an identically situated employee.” McGuinness v. Lincoln Hall, 263 F.2d 49, 54 (2d Cir. 2001). Employees need show only “a situation sufficiently similar to [their own] to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” Id.

We note that Pratt & Whitney does not dispute that Nestor met the first three prongs of the prima facie case. Further, as to the fourth prong, Pratt & Whitney concedes in its principal brief that Nestor and Elmore had “the same supervisor and were subjected to the same antifighting policy.” Pratt & Whitney also conceded in its reply brief that it treated Nestor and Elmore differently. Thus, Pratt & Whitney essentially contends only that Nestor and Elmore were not similarly situated because their conduct during the time clock incident was neither of comparable seriousness nor similar in all material respects. From the facts, however, the commission reasonably and logically could have concluded to the contrary.

We conclude that the record supports the commission’s determination, and, thereby, the court’s conclusion. The facts illustrate that in the July 27, 1992 time clock incident, both Nestor and Elmore pushed against each other and that when Elmore pushed harder, Nestor tried harder to get him away from her. Nestor and Elm-ore were disciplined quite differently for that similar conduct, with the former being terminated from her employment while the latter was issued only a one day suspension. On those facts, in conjunction with the concessions regarding the relative status of each employee, we conclude that the commission’s conclusion that Nestor and Elmore were similarly situated was made reasonably, logically and through a correct application of the law to the facts. Accordingly, Pratt & Whitney’s claim is unavailing.

B

Pratt & Whitney also claims that the court improperly concluded that the commission properly admitted and relied on evidence of past discrimination by Elmore against Nestor. Pratt & Whitney argues that the evidence was time barred and, thus, not actionable alone. In essence, Pratt & Whitney claims that because the challenged evidence could not support independent discrimination claims due to the passing of the statute of limitations, the evidence improperly was admitted in relation to the allegation that underlies this case. Further, Pratt & Whitney asserts that even if the evidence were relevant, it should not have been admitted because it was highly prejudicial. In accordance with a recent decision of the United States Supreme Court, we are not persuaded.

The following is a more detailed summary of the evidence that the commission admitted, and subsequently found as fact, which is relevant to our disposition of Pratt & Whitney’s claim. In 1990, Nestor reported three incidents in which Elmore had directed lewd comments or gestures toward her. In one incident, Elmore made lewd gestures toward Nestor when she went to Bums to complain about his presence in the computer room, which was not work related. When Nestor reported the lewd gesturing to Bums, he appeared to handle the incident by making a telephone call. No further action took place, however, in regard to the incident. In the next two months, two more incidents involving lewd gestures and comments occurred between Nestor and Elmore. Nestor reported both incidents. After reporting the latter incident, Nestor returned to her station and found a vulgar cartoon on her toolbox, which she also reported. Nestor then avoided all contact with Elmore.

In reviewing the court’s conclusion that the commission properly admitted the challenged evidence, we again employ the standard of review used by the trial court. That standard of review recognizes that “[a] dmin-istrative tribunals are not strictly bound by the mies of evidence ... so long as the evidence is rehable and probative.” (Internal quotation marks omitted.) Fund-erburk v. Commissioner of Motor Vehicles, 68 Conn. App. 655, 659, 792 A.2d 175 (2002). Thus, on appeal, “[t]he plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Id.

We are mindful that “[e]vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Nims, 70 Conn. App. 378, 389, 797 A.2d 1174, cert. denied, 261 Conn. 924, 806 A.2d 1056 (2002). Further, “[although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.” (Internal quotation marks omitted.) Id., 390-91.

In a recent decision interpreting Title VII of the Civil Rights Act of 1964, the United States Supreme Court recognized that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. . . . The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.” National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 (2002). The court also concluded that a statute of limitations that may bar a claim that is based on prior discriminatory acts does not bar an employee “from using the prior acts as background evidence in support of a timely claim.” Id. In keeping with the guidance provided in Morgan, we apply that principle.

Thus, the question is not whether prior acts may be admitted into evidence in this context, but rather, whether the challenged evidence was relevant and probative without being unduly prejudicial. Upon careful review of the evidence, we conclude, as did the commission and the court, that it was admissible. Along with other evidence that is not challenged, the evidence related to Elmore’s prior acts made it more probable that Pratt & Whitney’s decision to terminate Nestor’s employment was discriminatory in nature. We also conclude that the admission of the evidence did not create undue prejudice. The fact that the evidence had an adverse effect on Pratt & Whitney does not mean that it was overly prejudicial, especially when weighed against its probative value. Accordingly, the commission did not abuse its discretion when it admitted the challenged evidence, as it provided appropriate background in the consideration of Nestor’s timely claim regarding the discrete act of her termination from employment.

C

Pratt & Whitney next claims that the court improperly affirmed the commission’s decision despite insufficient evidence of gender discrimination. More specifically, Pratt & Whitney claims that Nestor did not prove that its nondiscriminatory reason for her termination from employment was pretextual or that the real reason for her dischar ge was gender discrimination. We do not agree.

We have concluded in part II A that Nestor proved her prima facie case. As such, Pratt & Whitney had the burden of rebutting the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. See Erisoty v. Merrow Machine Co., supra, 34 Conn. App. 710-11. Pratt & Whitney produced evidence that it terminated Nestor’s employment but retained Elmore because their conduct during the time clock incident was different and, thus, should have been treated differently. Having carried its burden of production, Pratt & Whitney succeeded in rebutting the presumption of discrimination that was raised by the prima facie case. Nestor then had to satisfy her burden of persuading the fact finder that she was the victim of discrimination either directly, by persuading the fact finder that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer’s proffered explanation was unworthy of credence. See id., 711.

The United States Court of Appeals for the Second Circuit has ruled that “evidence constituting a prima facie case prior to the employer’s proffer of a reason, coupled with the error or falsity of the employer’s proffered reason may — or may not — be sufficient to show illegal discrimination . . . .” Fisher v. Vassar College, 114 F.3d 1332, 1333 (2d Cir. 1997) (en banc). In other words, “[i]t is not enough ... to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.” (Internal quotation marks omitted.) James v. New York Racing Assn., 233 F.3d 149, 156 (2d Cir. 1997), quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Therefore, “once a minimal prima facie case is proved and the employer’s nondiscriminatory explanation has been given . . . the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.” James v. New York Racing Assn., supra, 156.

Here, the record supports the conclusion that Pratt & Whitney’s alleged legitimate reason for terminating Nestor’s employment was false and that it instead engaged in impermissible gender discrimination. Although Elm-ore and Nestor were similarly situated and engaged in similar conduct during the time clock incident in violation of company rules, Bums recommended, without knowing who started the incident, that Nestor be fired and that Elmore be retained. That recommendation followed a faulty investigation into the incident. Further, Bums initially chastised only Nestor for her involvement in the incident and, although he willingly talked to Elmore about the incident later, he refused to hear Nestor’s version.

That evidence was further supported by permissible background evidence, as we concluded in part IIB. Out of the sixteen inspectors in Nestor’s group, fourteen male inspectors were promoted, leaving behind only one male inspector who was out of work on a disability leave and Nestor, despite the fact that she demonstrated or exceeded the requisite fitness, ability and seniority necessary for promotion. Nestor had numerous problems with Elmore before the time clock incident that were left virtually unaddressed by Bums. Further, Bums had a discriminatory attitude toward women in his department and allowed pornographic material to circulate there. Moreover, Burns’ attitude extended to Nestor, whom he once insulted when she asked for additional training.

Considering all of the evidence, it was reasonable for the commission to infer that Pratt & Whitney’s allegedly legitimate reason for treating Nestor differently was false. Further, the commission reasonably could have concluded, as it expressly did, that prohibited gender discrimination occurred. We cannot conclude, therefore, that the commission acted arbitrarily or in abuse of its discretion.

D

Pratt & Whitney claims finally that the court improperly affirmed the commission’s decision despite the lack of a finding of discriminatory intent or motive on the part of Pratt & Whitney or any of its employees. That claim is without merit.

As we have stated, the commission found that Pratt & Whitney investigators, who took statements from witnesses about the time clock incident, did not allow employees to draft their own statements or to correct faults that they found in the statements that Pratt & Whitney had drafted for them. The commission also found that although Bums did not know who started the time clock incident, he and Bern decided that Nestor had been fighting, which was against Pratt & Whitney’s mies, and that she had been the aggressor. Bums then recommended to Berr that Nestor’s employment be terminated but that Elmore be retained. Berr accepted that recommendation, and Bums told Nestor that her employment had been terminated. The commission concluded, on the basis of all the facts, that Pratt & Whitney had terminated Nestor’s employment with a discriminatory motive that manifested itself in the flawed investigation that shielded Pratt & Whitney’s trae animus toward her, and in its selective and uneven enforcement of its policy. The commission further noted that despite the fact that Berr may not have intentionally discriminated against Nestor, discrimination still played a key role in the termination of her employment. The commission concluded that Pratt & Whitney discriminated against Nestor on the basis of her gender and unevenly enforced its policy by “virtue of its disparate treatment in terminating [Nestor’s] employment.” The court agreed and stated that Pratt & Whitney had conducted a flawed investigation, enforced its rules against similarly situated employees unevenly, and allowed Bums’ defective summation of the incident and his discriminatory motive to taint Berr and, therefore, to taint Pratt & Whitney’s decision to terminate Nestor’s employment.

Pratt & Whitney claims that those conclusions show a lack of any finding of discriminatory intent on its part and, therefore, that the court’s decision to uphold the commission’s decision was improper. We conclude to the contrary. Pratt & Whitney apparently has misread the conclusions of the commission and the court. Our law allows for the transfer of intent to discriminate, which was recognized by the court and the commission in their decisions. It is true that “[w]ithout some proof of an improper motive, [a plaintiffs] case must fail.” (Internal quotation marks omitted.) Erisoty v. Merrow Machine Co., supra, 34 Conn. App. 711. Nevertheless, companies may be held liable for discrimination even where the decision-making official did not intentionally discriminate if the information used by that official in deciding to terminate a worker’s employment was filtered through another employee who had a discriminatory motive. See Jiles v. Ingram, 944 F.2d 409, 413-14 (8th Cir. 1991) (discriminatory intent of employer’s agents sufficient proof to hold employer responsible for discriminatory termination without intentional discrimination by final decision maker); see also Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1057 (8th Cir. 1993) (“when a committee has ‘acted as the conduit of [a supervisor’s] prejudice — his cat’s paw — the innocence of its members would not spare the company from liability’ ”). Moreover, § 46a-60 (a) (1) provides that neither an employer nor its agent may discriminate against or terminate an individual’s employment on the basis of her gender. See footnote 3. Thus, the commission’s conclusion that Pratt & Whitney improperly terminated Nestor’s employment on the basis of gender was permissible. Moreover, after our thorough review of the record, we conclude that the commission’s determination resulted from a correct application of the law to the facts found and that it could reasonably and logically follow from such facts. Accordingly, we conclude that the commission did not abuse its discretion and that the court properly affirmed its decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-58 (a) provides: “It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability.”

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s . . . sex . . .

       Pratt & Whitney claims also that the court improperly made factual findings. We note, however, that the court’s summary of the commission’s factual findings constitutes nothing more than the use of a common time and space saving tool of writing. Rather than making new findings of fact, the court was reiterating those already made by the commission and evaluating them under the applicable law in relation to the commission’s conclusions. We conclude, therefore, that this claim is meritless and warrants no further discussion.

       We further note that the established facts indicate that Nestor and Elmore essentially rose through the ranks of Pratt & Whitney together for many years and were assigned to work in the same area of their department. The facts also show that Nestor's job related fitness, ability and seniority were equivalent to that of Elmore at all relevant times.

       Pratt & Whitney supports its claim that the commission improperly concluded, exclusively on the basis of Elmore’s prior acts, that the termination of Nestor’s employment was discriminatory by citing the commission’s statement that Pratt & Whitney’s treatment of Nestor “as far back as 1990, inter alia, assists in and compels this conclusion.” (Emphasis in original.) We cannot agree. Pratt & Whitney does not challenge other evidence of prior acts that the commission may have been referencing, such as evidence that Nestor, although qualified in all ways, was not promoted when fourteen male inspectors were promoted. Similarly, Pratt & Whitney does not challenge evidence that Bums ignored Nestor’s written complaints of harassment and discrimination, refused to train Nestor, and told her she was “too large and awkward” to receive training. Further, it is clear from the commission’s other statements that its conclusion centered on the uneven application along gender lines of Pratt & Whitney’s policy against fighting. Finally, given our conclusion that the challenged evidence was admitted properly, along with the guidance provided by the United States Supreme Court, it was not improper for the commission to consider the prior acts in evidence when determining whether the termination was discriminatory.

       The commission expressly concluded that “this was a case of disparate treatment based upon [Nestor’s] gender.” Further, the commission explicitly stated that Nestor had “proved, by a preponderance of the evidence presented, that the discriminatory motive (i.e., her gender) was the factor that made the difference in [Pratt & Whitney’s] decision to fire her.”


author: SCHALLER, J.

text:
    JOSEPH W. CONIGLIO v. DAVID A. WHITE
    (AC 21480)
    Schaller, Spear and Hennessy, Js.

    Argued March 22
    officially released September 10, 2002

      Nancy Burton, for the appellant (defendant).

      Joseph M. Brophy, for the appellee (plaintiff).

       This appeal was argued before a panel comprised of Judges Schaller, Spear and Hennessy. Although Judge Spear agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render the written decision.

   Opinion

SCHALLER, J.

In this civil action based on breach of contract and negligence, the defendant, David A. White, appeals from the judgment, rendered after a jury trial, in favor of the plaintiff, Joseph W. Coniglio. The disposi-tive issue is whether the trial court improperly denied the defendant’s motions for a directed verdict and to set aside the verdict that were based on the defendant’s assertion that the court improperly instructed the jury on the applicable statute of limitations. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. In the spring of 1986, the plaintiff considered purchasing a two acre back lot from Florence Smith. The plaintiff entered into an oral contract with the defendant, a licensed land surveyor. The parties agreed that the defendant would survey the lot for a fee of $1310. On May 27, 1986, the defendant delivered the survey, and the plaintiff paid him the agreed fee. A few months later, the plaintiff asked the defendant to include in the survey a right-of-way granted by Smith. Without additional compensation, the defendant revised the survey to include a right-of-way over Smith’s property near the northern boundary. Sometime between 1987 and 1989, the plaintiff installed a driveway on the right-of-way shown on the revised survey. In 1989, without compensation, the defendant performed some additional work, unrelated to the right-of-way, on the survey for the plaintiff.

In 1994, after Smith had died, the purchaser of her homestead on the property had a survey performed, showing that the boundary of the 1986 survey was incorrect and that the right-of-way granted in 1986 by Smith to the plaintiff was located on state of Connecticut forest property. The purchaser notified the plaintiff that the right-of-way was not located on the purchaser’s property. The plaintiff contacted the defendant about that assertion. The parties met, and the defendant explained that his survey showed proper boundaries. Thereafter, the defendant provided two additional surveys in 1994 to the plaintiff without compensation. The 1994 surveys showed essentially the same boundaries as the 1986 survey. In 1995, the plaintiff received a letter from the state of Connecticut informing him that its own survey showed that the plaintiffs right-of-way encroached on state property. On July 15, 1996, the plaintiff brought an action against the defendant alleging breach of contract and negligence.

In his complaint, the plaintiff alleged that the defendant (1) breached the oral contract by failing to perform an accurate survey in 1986, 1989 or 1994 and (2) negligently failed to meet the standards to which surveyors are customarily held in the execution of their work, all of which caused harm. In a special defense, the defendant alleged that the statute of limitations barred the plaintiffs claims. The defendant also filed a motion for a directed verdict on the basis of arguments concerning the applicable statute of limitations, continuing duty and consideration necessary for an enforceable modification of a contract. The court denied the defendant’s motion for a directed verdict.

The court instructed the jury that pursuant to General Statutes (Rev. to 1985) § 52-584a, a seven year statute of limitations applied to both the contract and negligence counts. The court also instructed the jury on the elements of a contract, including consideration, but failed to instruct on the consideration required for modification of a contract. Instead, the court instructed on whether the parties had “revised” the agreement. The jury returned a verdict in favor of the plaintiff and awarded damages on the contract count in the amount of $1310 and on the negligence count in the amount of $25,000.

The defendant filed a motion to set aside the verdict, for a new trial and for remittitur. The defendant argued that the court improperly instructed the jury that the seven year statute of limitations applied. He further argued that the court improperly instructed the jury that “[w]hen given the opportunity to correct his findings in 1989 and 1994, he failed to do the same and erroneously reaffirmed the mistaken state of Connecticut boundary line in his survey of 1986.” The court denied the defendant’s motions. This appeal followed.

The defendant claims that the court improperly denied his motions for a directed verdict and to set aside the verdict. His claims rest on his assertion that the court improperly instructed the jury on the applicable statute of limitations. Specifically, the defendant argues that the court improperly instructed the jury that § 52-584a applied to the contract and negligence counts because § 52-584a did not apply to surveyors until October 1,1998, when the legislature enacted Public Acts 1998, No. 98-137, § 61, and No. 98-219, § 33. The defendant further argues that he was prejudiced by the improper instruction because by instructing on the seven year statute of hmitations, the court failed to instruct the jury concerning the correct statutes of limitation and the factual determinations that were relevant to a determination of whether either or both counts were barred.

As an initial matter, we set forth our standard of review. “[Appellate] review of a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citation omitted; internal quotation marks omitted.) Stuart v. Stuttig, 63 Conn. App. 222, 226, 772 A.2d 778 (2001). “A jury’s verdict should be set aside only where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. ... A verdict should not be set aside where the jury reasonably could have based its verdict on the evidence.” (Citation omitted; internal quotation marks omitted.) Caron v. Adams, 33 Conn. App. 673, 685, 638 A.2d 1073 (1994).

We also note that in reviewing the defendant’s claim that the court improperly denied his motions for a directed verdict and to set aside the verdict, we must address the defendant’s underlying assertion that the court improperly instructed the jury on the statute of limitations. We therefore set forth our standard of review for challenges to jury instructions. “[W]e adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . We do not critically dissect the charge in order to discover possible inaccurate statements. . . . Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. Even if instructions are found to be improper, we must further determine whether they have been prejudicial to the claiming party by adversely affecting the trial’s outcome.” (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 280-81, 640 A.2d 74 (1994).

Before October 1, 1998, the professionals listed as being subject to the seven year statute of limitations pursuant to § 52-584a were architects and professional engineers. See footnote 3. Surveyors were included as named professionals subject to the seven year statute of limitations provided by § 52-584a for survey work performed after October 1, 1998.

We conclude that as a matter of law, the court improperly instructed the jury on the applicable statute of limitations because § 52-584a did not apply to surveyors who performed or furnished surveys before October 1, 1998. All of the surveys provided by the defendant were furnished to the defendant before October 1, 1998. Therefore, as a matter of law, § 52-584a did not apply to either the contract or negligence counts. Our inquiry, however, does not end here. We must further determine whether the court’s improper instruction on the applicable statute of limitations prejudiced the defendant by adversely affecting the trial’s outcome. See id., 281. We will address the contract and negligence counts separately.

With regard to the contract count, whether the improper instruction was prejudicial depends on whether, given the improper instruction, the jury was prevented from deciding facts that were necessary for it to determine the appropriate statute of limitation to apply and, subsequently, whether the action was barred. Specifically, the jury needed to decide whether the contract was executory or performed to decide whether General Statutes §§ 52-581 or 52-576 applied. Furthermore, in reaching that decision, the jury also needed to consider and decide whether the contract had been modified.

In this case, it is plain that the court’s instruction did prevent the jury from making those requisite findings. First, the court instructed the jury on the wrong standard to apply. That undoubtedly misled the jury from considering the necessary underlying factual issues regarding the status of the contract because the jury was told what statute of limitations to apply. Moreover, the court failed to instruct the jury on executory and performed contracts, modifications of an unperformed executory contract and the necessity of consideration for enforceable modifications. Without such instructions, the jury could not determine the required underlying issues of fact that were necessary to determine what the appropriate statute of limitations was in this case. Without the correct statute of limitations, the jury could not properly decide if the plaintiffs action was barred. We conclude, therefore, that the court’s jury instruction on the statute of limitations was prejudicial to the defendant because the instruction adversely affected the trial’s outcome.

We now turn to the negligence count. Whether the improper instruction was prejudicial on the negligence count depends on whether the jury was prevented from finding whether the defendant breached a duty to the plaintiff in 1986, 1989 or 1994, which proximately caused the plaintiffs claimed damages. Such a finding was necessary to determine whether the plaintiffs action was barred by General Statutes § 52-577.

It is again clear that the court’s instruction did prevent the jury from making the necessary findings. The court failed to instruct the jury to determine the date or dates, if any, on which any act of negligence occurred since, of course, the date was not essential under the seven year statute of limitations. Because the jury was not instructed to focus on the operative dates in 1986,1989 and 1994, we cannot determine whether the jury would have found that the defendant’s acts in 1986 and 1989 constituted negligence that was barred by § 52-577 or whether the 1994 acts constituted new acts of negligence that may have proximately caused the plaintiffs damages. See, e.g., Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 688, 508 A.2d 438 (1986). We conclude, therefore, that the court’s jury instruction on the statute of limitations was prejudicial to the defendant because the instruction adversely affected the trial’s outcome.

Because we conclude that the court improperly instructed the jury and that the instruction was prejudicial, we further conclude that the court improperly denied the defendant’s motion to set aside the verdict.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to set aside the verdict and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Because we reverse the judgment on the basis of the jury instruction claim, we need not address the defendant’s other claims.

       General Statutes (Rev. to 1985) § 52-584a (a) provides in relevant part: “[N]o action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property . . . shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.” Amendments to that statute between 1985 and 1998 are not pertinent to this appeal. In 1998, § 52-584a was amended to apply to land surveyors. See Public Acts 1998, No. 98-137, § 61, and No. 98-219, § 33.

       General Statutes § 52-581 provides a three year statute of limitations for actions brought on executory oral contracts. Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 714, 638 A.2d 44 (1994). All other oral contracts, including performed contracts, are governed by a six year statute of limitations provided by General Statutes § 52-576. Connecticut Bank & Trust Co., N.A. v. Reckert, supra, 714.

       We note that there is clear law in that area on which the jury would have required instruction. Specifically, for modifications of a contract to be enforceable, there must be new consideration. Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 564, 559 A.2d 241 (1989). Mutual promises qualify as sufficient consideration for a binding contract; however, for a valid modification, there must be mutual assent to the meaning and conditions of the modification. Smith & Smith Building Corp. v. DeLuca, 36 Conn. App. 839, 843, 654 A.2d 368 (1995).

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”