West Avenue Dental, West Avenue in Norwalk West Avenue Dental, West Avenue in Norwalk. Courtesy photo

The Connecticut Appellate Court has upheld a lower court’s ruling in a workplace sexual harassment case, despite errors by the judge in not accepting the jury’s original verdict of no monetary damages for the winning plaintiff.

In its challenge before the Appellate Court, Norwalk-based West Avenue Dental said Stamford Superior Court Judge Kenneth Povodator erred when he did not accept the plaintiff’s verdict. The jury would have awarded no damages to Andrea Robles, a former employee who said she was sexually harassed by a male colleague, and that the dental practice did not properly address the alleged abuse.

But instead of accepting the original finding, the judge told jurors they needed to reconsider an award for damages.

The jury came back with a minimal total award of $5,950 for Robles for negligent supervision on the part of management at the dental business.

Kristan Peters-Hamlin, a Stamford-based solo practitioner representing West Avenue Dental, said she appealed the lower court ruling, even though the jury awarded such a small amount of money, “as a matter of principle.” But the ruling by the Connecticut Appellate Court will not be appealed to the Connecticut Supreme Court, even though Peters-Hamlin says she disagrees with it.

In its eight-page ruling on Oct. 4, the Appellate Court issued a 3-0 decision that said since the defense hadn’t objected at the time of Povodator’s decision, a contention Peters-Hamlin disputes, it could not win the appeal.

“In light of the defendants’ complete failure to object to the court’s determination that the jury’s initial verdict was inconsistent or to its resulting decision to return the jury for further deliberations to clarify its verdict as it was returned, the defendants have no right to seek appellate review of alleged errors in such judicial rulings and actions at this time.” the Appellate Court’s ruling read.

Peters-Hamlin, in a lengthy email statement to the Connecticut Law Tribune Wednesday, said she asked to address the court at the bench, made an objection to the instruction at the bench, “but the court failed to record it.”

Plaintiff Robles and former co-worker Maria Arriaga had filed a 22-count complaint in 2014 against West Avenue Dental and its owner, Hrishikesh Gogate, for the business’s alleged failure to supervise then-office manager Rafael Arias, who, the lawsuit said, repeatedly sexually harassed them.

The lawsuit stated that Arias repeatedly asked both women out on dates, commented on their appearance, stroked their hair, and frequently grabbed them. Eleven of the counts were brought on behalf of Robles.

After a lengthy trial, the jury found in favor of the defendants on 10 of those 11 counts. The appeal to the Connecticut Appellate Court concerned only the seventh count, on which Robles had prevailed. That count dealt with negligent supervision on the part of Gogate and management.

“It was a challenging case because the alleged perpetrator was unavailable to be a witness for trial because he had been criminally convicted of sexual assault relating to the underlying incident years before,” Peters-Hamlin said in her email statement.

Peters-Hamlin said after the jury retired for renewed deliberations following the judge’s instruction, she again attempted to put her objection on the record, “before the trial court cut it off.”

“Therefore, the defense does not understand the Court of Appeals’ ruling,” she wrote. “The jury must be allowed to be the fact-finder. It was a matter of principle for the defendants to have the Court of Appeals confirm that the trial judge incorrectly told the jury that it must find damages when the jury had returned a $0 damages verdict.”

Furthermore, Peters-Hamlin wrote: “The Court of Appeals decision appears to accept implicitly both that the trial judge incorrectly instructed the jury that its verdict was inconsistent, and failed to instruct the jury on nominal damages. The trial judge is a seasoned, smart judge. Therefore, it is important to clarify, again for the Bar, the legal principle that juries are permitted to award zero damages—even though finding liability on a sole count—in employment discrimination cases where there is no alleged physical injury and an award of damages would be speculative.”

Gogate was not at work Wednesday. He has an unlisted telephone number and couldn’t be reached for comment by press time.

Robles was represented by Daniel Dauplaise and Victoria de Toledo, both with the Stamford-based Casper & de Toledo. Both attorneys were in court Wednesday and couldn’t be reached.

Judges Michael Sheldon, Eliot Prescott and Stuart Bear adjudicated.