Twerdahl v. Wilton Pub. Sch.

309 A.3d 405

223 Conn.App. 550

Robin TWERDAHL

v.WILTON PUBLIC SCHOOLS

(AC 45969)

Appellate Court of Connecticut.

Submitted on Briefs November 15, 2023

Officially Released January 30, 2024

Ashling M. Soares filed a brief for the appellant (plaintiff).

Peter J. Murphy, Hartford, and Keegan A. Drenosky filed a brief for the appellee (defendant).

Cradle, Westbrook and DiPentima, Js.

CRADLE, J.

₅₅₂The plaintiff, Robin Twerdahl, appeals from the judgment of the trial court, rendered following the court’s decision striking her complaint against the defendant, Wilton Public Schools, in which she claimed that she was constructively discharged from her employment with the defendant. The plaintiff claims that the court erred in granting the motion to strike filed by the defendant on the grounds that the filing of her complaint alleging age discrimination to the Commission on Human Rights and Opportunities (CHRO) was untimely and she failed to state a claim on which relief could be granted. We agree that the plaintiff’s complaint to the CHRO was untimely and, accordingly, affirm the judgment of the trial court.¹

The following facts and procedural history are relevant to our resolution of the plaintiff’s claim on appeal. The plaintiff started her employment with the defendant school district in 1995. She resigned from that employment on August 14, 2019. On December 19, 2019, she filed an age discrimination complaint with the CHRO, and, on March 31, 2020, the CHRO issued a release of ₅₅₃jurisdiction.² In June, 2020, the plaintiff commenced this action, and, on January 7, 2021, she filed a three count amended complaint alleging a violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq., constructive discharge and breach of contract. All three of the plaintiff’s claims were based on the same core allegation—that she was seventy years old and still qualified for her position as a school teacher at the time that she was forced to resign and that the defendant was motivated to create an intolerable work environment by the plaintiff’s "advanced age and [a desire] to replace her with a younger teacher …." Specifically, the plaintiff alleged that, in 2010, the defendant’s staff began to "marginalize" her and "unfairly criticiz[e] her performance" with "harassment [that] progressively worsened over time." In support of these allegations, she referred to negative performance evaluations that she had received. With respect to her 2016–2017 school year evaluation, the plaintiff alleged that the newly hired assistant principal failed to follow proper procedures, plagiarized portions of prior evaluations that had been written by the former assistant principal, and "inappropriately inserted the number of sick days that [the plaintiff] had used … in a punitive statement … downgrad[ing] her evaluation accordingly." The plaintiff challenged the criticism, and, after the defendant failed to respond, the plaintiff initiated the union grievance process. The plaintiff alleged that, when it became apparent that the defendant had no intention of remedying the "discriminatory ₅₅₄treatment," she had "no choice but to resign from her position …."

On February 10, 2021, the defendant filed a motion to strike the plaintiff’s amended complaint on the grounds that her complaint to the CHRO was untimely in that it was not filed within the statutorily prescribed 180 days and she had failed to set forth a claim on which relief could be granted. The court, Hon. Kenneth B. Povodator, judge trial referee, granted the defendant’s motion, striking all three counts of the plaintiff’s amended complaint. The court reasoned, inter alia: "[T]he plaintiff claims that she was forced to resign by the intolerable workplace conditions on August 14, 2019. The most recent antecedent events by or attributable to the defendant is that in May, 2018, Dr. Kevin Smith (status with the defendant, unknown—a Dr. Charles Smith [was] previously identified as an assistant superintendent) is alleged to have stated he would take action but no action was taken, being the latest conduct alleged by time frame. This, in turn, related to a work evaluation for an earlier academic year. There is no other conduct alleged that was attributable to, explicitly or impliedly, the defendant, much less conduct that might reasonably be construed as creating a hostile work environment and/or justifying constructive discharge. Based on the factual allegations of the complaint, the complaint to the CHRO was not timely, and the allegations of conduct do not rise to the level supporting a claim of hostile work environment and/or constructive discharge."

On March 16, 2022, the plaintiff filed a one count second amended complaint alleging constructive discharge.³ In her second amended complaint, the plaintiff ₅₅₅added allegations related to a report issued by the defendant on June 10, 2019. The plaintiff alleged that, in that report, the defendant acknowledged that the assistant principal had improperly copied portions of the plaintiff’s prior evaluations and recommended a review of "‘administrators’ practices regarding referencing evaluations from prior years ….’" The plaintiff alleged that, "between June 10 … and August 14, 2019, the defendant failed to take a vital remedial action that it had promised to take" in the June 10, 2019 report, "in that it failed to make any changes to the administrators’ practices regarding referencing evaluations from prior years or to provide the plaintiff with an explanation … that no changes were appropriate …." The plaintiff alleged that, "[a]s a result of the defendant’s discriminatory treatment of [her], she was in constant fear of being ridiculed or even terminated. As a result, she suffered from anxiety and depression. Ultimately, when it became apparent that the defendant had no intention of adequately remedying the discrimination, she was forced to resign from her position, which she did on August 14, 2019."

On April 13, 2022, the defendant filed a motion to strike the plaintiff’s second amended complaint on the grounds that her complaint to the CHRO was untimely and her complaint failed to state a claim on which relief could be granted. The court granted that motion in a memorandum of decision dated September 9, 2022, and struck the complaint on the grounds that the plaintiff’s complaint to the CHRO was untimely under the 180 day deadline in General Statutes (Rev. to 2019) § 46a-82 (f),⁴ as "the plaintiff has [not] identified conduct ₅₅₆relating to an intolerable working environment that had persisted to June 22, 2019, and thereafter, sufficient to make the actual date of the filing of her CHRO complaint [on December 19, 2019] timely" and the plaintiff’s allegations were insufficient to "establish [that the] working conditions [were] so intolerable that a reasonable person would feel compelled to resign …."

In addressing the timeliness of the plaintiff’s complaint to the CHRO, the court first summarized the pertinent allegations of her complaint. Specifically, as to the allegations that were most recent in time, the court recounted: "Paragraph 29 [of the second amended complaint] jumps to June 10, 2019, reporting the issuance of an investigative report relating to the plaintiff. The report was critical of the manner in which the 2017 evaluation had been prepared (largely copying from the previous year’s evaluation), including improper comments about and treatment of perceived excessive sick time. The report did not find malice on the part of the preparer of that evaluation but rather concluded that inexperience and a misunderstanding of guidance she had received were involved. The report generally distin- guished between identified improper conduct and the absence of improper motives." The court noted that "[p]aragraph 29 [of the second amended complaint] also recites the investigative report’s recommendations, including upgraded ratings for the plaintiff in the year-end review, and proposed monitoring and corrective action to be taken."

After setting forth the additional allegations pertaining to the time period between June 10 and August 14, 2019, as referenced herein, the court explained, inter alia: "The foregoing summarizes the complaint insofar as it identifies predicate conduct of the defendant that is claimed to be the basis of her constructive discharge. … The plaintiff having filed her CHRO complaint on December 19, 2019, the complaint can only encompass ₅₅₇events occurring on or after June 22, 2019. There is no affirmative conduct alleged in the period starting on June 22, 2019. Inferentially, the plaintiff is relying on inaction between June 10, 2019, and her resignation on August 14, 2019. Accepting that in some circumstances inaction might constitute actionable conduct for purposes of discrimination in general and constructive discharge in particular, the plaintiff has not described such a situation.

"The inaction identified could not have been part of an intolerable environment, because it did not impact any environment, especially for the time frame in question. The failure to act in that period was a failure ‘to make any changes to administrators’ practices regarding referencing evaluations from prior years, or to provide the plaintiff with an explanation of any determination that no changes were appropriate, if such a determination had been made.’ This failure relates only to the manner in which annual evaluations are made by administrators, and more narrowly, the procedures/ practice of ‘referencing evaluations from prior years.’ Putting aside the question of how the plaintiff would learn of changes made in that interval ([between] June 10 and August 14, 2019) and whether she implicitly is claiming that there was a duty to notify her of any changes in procedures or decisions not to make changes—mostly summer recess for schools—how was inaction or delayed action relating to protocols for preparing annual reviews...