The Connecticut Appellate Court issued a new decision (officially released today) that will have important ramifications for employers proceeding with the CHRO mandatory mediation stage.  Specifically, based on this ruling, most settlement discussions during the Commission on Human Rights and Opportunities’ mediation stage will be inadmissible in a later court proceeding.   The decision also holds that changes to a deposition transcript through an errata sheet do not preclude the introduction of the original answers.

The case, Kovachich v. Department of Mental Health and Addiction Services, can be downloaded here.

The case arises from a claim that the employer denied an employee a reasonable accommodation  on the basis of a disability. According to the decision, the employee alleged that she suffered adverse incidents caused by coworkers’ violations of the scent-free working environment and that the employer made “no serious effort” to educate the workforce about the importance of doing so.  She also alleged that she was retaliated against and that such actions, in turn, led to her constructive discharge.

The matter went to a bench trial. The trial judge rendered judgment to the Plaintiff awarding emotional distress damages of $125,000 and attorney’s fees of $415,389.50.  Appeals followed.

One issue on appeal was whether documents and exchanges of e-mails that were part of the CHRO’s mandatory mediation process were admissible. The trial court said that they were. But the Appellate Court reversed finding that such statements were inadmissible offers of compromise.

Among the documents were communications with the mediator regarding requests to clarify the demands of the Plaintiff and discussions regarding issues on which the parties purportedly reached agreement.  Given the content of the communications, the Appellate Court concluded that the trial court improperly admitted such evidence.

To respond to that, the Plaintiff argued that the statements were made to show an interactive process. But the Appellate Court disagreed with that argument concluding that the present case “concerns settlement communications that occurred within the context of the commission’s mandatory mediation program.” And it noted that the “general rule that evidence of attempted settlements is not admissible against either party to the settlement negotiations is also consistent with the statutory protections afforded conciliation efforts before the commission.”

The Appellate Court also noted that it agreed with the sentiment conveyed by the CHRO in an amicus brief that “weakening the safeguards which generally preclude parties from offering settlement or compromise evidence into the record would have a chilling effect on the commission’s mediation efforts…”

For employers, the decision will be a welcome relief that a court will provide some protection to statements made in the mediation process at the CHRO. Often times, parties may concede a point during such discussions in an effort to reach an agreement; that concession cannot be used against an employer if those mediation sessions fail. To be sure, counsel should include in any e-mails with the CHRO “For Settlement Purposes Only” to avoid any possible confusion — even at the mediation process itself.  And there are some very limited exceptions so counsel should still exercise caution.

The Appellate Court also addressed a previously unanswered question that employment lawyers will find notable, namely what use a party may make at trial of deposition testimony that was amended through an errata sheet.

In this case, the lower court had found that many of the corrections made on the errata sheet were “actually changes in the deposition testimony”.  For example, “The plaintiff changed her response that she had her hair permed every six to eight weeks between 2010 and 2014, to ‘’I did not have my hair permed between 2010 and 2014.'”

The Court concluded that the original answers to the deposition can still be admissible notwithstanding amended answers on an errata sheet.  If then requested by the Plaintiff, the Plaintiff can introduce the amended answers and explain the reasons for the change.

This change may make errata changes a bit less likely in the future knowing that an individual’s original testimony can still be used and can’t just be changed outright through an errata sheet.