9910120, Duarte - Ruling re R's Motion

CHRO No. 9910120

Commission on Human Rights and Opportunities, ex rel. :James Duarte, Complainant
v.
Hamilton Standard Division, United Technologies Corporation, Respondent : September 30, 1999

RULING ON RESPONDENT’S MOTION TO DISMISS

This matter involves a former employee’s claims of alleged physical disability discrimination based on the employer’s failure to rehire him after recalling him to undergo a medical examination. The complaint alleges that the respondent employer violated:

The Respondent, Hamilton Standard, a division of United Technologies Corporation (hereinafter, the "Respondent") has filed a Motion to Dismiss asserting that the Complainant, James Duarte (hereinafter, the "Complainant"), has failed to allege a prima facie case of disability discrimination and that this tribunal does not have jurisdiction over the federal causes of action set forth in the complaint.

The issues presented are: 

For the reasons hereinafter set forth, it is concluded that: 

Accordingly, the Respondent’s Motion to Dismiss is DENIED in part and GRANTED in part.

The complaint alleges that the Complainant is partially disabled in both arms (¶4). He had worked for the Respondent as a blade worker/grinder (¶5), and claims that during that time he had always received at least satisfactory performance evaluations (¶6). On or about September 20, 1995 he was recalled by the Respondent for a physical examination (¶7). He asserts that all employees that had been recalled were rehired except for him (¶¶8-9). The complaint states that he "believe[s] that [he] could perform a good portion of [his] job code with a reasonable accommodation to his disability."(¶10) Although it is unclear due to the poor wording of the paragraph, for the sake of this motion, the undersigned is assuming that Paragraph 11 of the complaint asserts that other employees in his job code that were recalled at the same time as the Complainant with less seniority were transferred into available positions for which the Complainant was qualified (¶11). It is alleged that these events constitute violations of General Statutes §§ 46a-60(a)(1) and 46a-58(a), as well as Title VII and the ADA.

"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). Pearson v. Bridgeport Hydraulic Company, 141 Conn. 646, 648, 109 A.2d 260 (1954). In reviewing whether a complaint will survive a motion to dismiss, the tribunal must construe those facts alleged or implied in the complaint in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). A complaint may be dismissed "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id., at 309. Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 183, 734 A.2d 1031 (1999).

The Respondent argues that the Complainant has failed to establish a prima facie case of discrimination in that he allegedly admits in the complaint that he was not qualified to perform the essential functions of the position for which he was "conditionally recalled." It submits that grinding was an essential function of this position and points to Paragraph 10 of the complaint where the Complainant states,

"I believe I could perform a good portion of my job code with a reasonable accommodation to my disability." The Respondent summarily interprets this paragraph as an admission that he could not perform the essential functions of the position and was therefore unqualified for it.

The Commission responds that a complainant’s burden to establish a prima facie case is minimal, and the complainant’s intention behind the words "good portion" could, in fact, include all essential functions of the position and therefore the complainant must have the opportunity through the hearing process to submit evidence supporting same. Furthermore, the Commission also asserts that the Respondent must also submit evidence supporting its assertion that grinding is an essential function of the job.

It is well established that Connecticut recognizes two theories of employment discrimination, each of which requires a different prima facie case showing and burden of proof.

One theory is used when complainants cannot directly prove that the reasons behind an employment decision were discriminatory. It was set forth in the United States Supreme Court cases McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and requires the complainant prove the following four elements to establish a prima facie case: (1) that he or she belongs to a protected class; (2) that he or she applied and was qualified for the position in question; (3) that despite his or her qualifications, he or she was rejected; and (4) that after the rejection, the position remained available or was filled by someone who was not a member of a protected class. Id. at 254; Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209, 225 (1996); Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 203, 596 A.2d 396 (1991). "The plaintiff’s burden of establishing a prima facie case is not onerous under this model." Ann Howard’s Apricots Restaurant, Inc., at 225.

In instances where the complainant does have direct evidence of an employer’s discriminatory motive, often called the "direct evidence theory", a different prima facie case is required, and complainant merely needs to show: (1) that he or she is a member of a protected class, and (2) "an impermissible factor played a ‘motivating’ or ‘substantial’ role in the employment decision." Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 106, 671 A.2d 349 (1996). The other three above-referenced elements, including that of being qualified for the position, are not necessary. Id.

It is unclear to me, at this early stage, under which theory the parties plan to proceed. However, it is here determined that based on the record thus far, the motion to dismiss for failure to establish a prima facie case must fail under both theories. Under the direct evidence theory, the complainant is not required to prove that he was qualified for the position to establish a prima facie case, and, since the Respondent does not challenge the requisite two elements under that theory, it is not further addressed here.

If it is assumed that the Complainant does not have direct evidence of discrimination by the Respondent, then the four-pronged prima facie case showing applies. The common law on employment discrimination repeatedly emphasizes that a complainant’s burden at the prima facie stage of McDonnell Douglas/Burdine-type cases is "de minimus" and "flexible." See Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978); Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 204 (1991); Fisher v. Vassar College, 114 F.3d 1332, 1340 n.7 (2d Cir.1997), cert. denied, 118 S.Ct 851 (1998); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.1992), cert. denied, 506 U.S. 826 (1992); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). It is here determined that the complaint satisfies all four prongs and the complaint alleges the elements necessary for a prima facie case.

Construing the complaint in a light most favorable to the pleader, it is presumed that the phrase "a good portion" is intended to encompass the "essential functions" of the position. This agency is intended to be readily accessible to all persons, therefore neither complainants nor respondents are required to be represented by counsel. Regulations of State Agencies § 46a-54-92. While a competent lawyer drafting this complaint would probably have used the exact wording "essential functions of the position" after analyzing the law on prima facie cases in employment matters, to dismiss this matter based solely on language employed by a pro se complainant in his complaint would in effect penalize a layperson for failing to conduct legal research. It is entirely possible that the Complainant will be able to present facts at the public hearing that he was able to perform the essential functions of the position which constituted "a good portion of his job."

The Respondent also argues that the Complainant states he could perform "a good portion of his job"--but only with reasonable accommodation, a duty which is not required of employers under Connecticut law. I disagree.

While the Connecticut statute, unlike the ADA, does not have language setting forth a duty on the part of the employer to provide a reasonable accommodation, Connecticut courts have implicitly recognized that such a duty exists. The superior court case, Ezikovich v. Commission on Human Rights and Opportunities, 1998 WL 258182, (Conn.Super.), Docket No. CV 970567872, May 11, 1998 (DiPentima, J.), involved a complainant’s appeal of the Commission’s finding that a respondent employer had provided the complainant with a reasonable accommodation to her disability of chronic fatigue syndrome:

Id. By referring to the ADA’s inclusion in its definition of discrimination the failure to make reasonable accommodations, this passage not only implies that the state will follow it by imposing such a duty on respondent employers, but also that the Commission had properly interpreted and applied it to the complainant’s situation.

In another complainant’s appeal, Kalanquin v. Commission on Human Rights and Opportunities, 1998 WL 57767 (Conn.Super.), Docket No. CV 970567909, February 3, 1998 (DiPentima, J.), the superior court also acknowledged the existence of an employer’s duty under state law to reasonably accommodate by finding that this particular employer was exempted from it "because the plaintiff was totally disabled."

The strongest indication of the existence of a duty to make reasonable accommodations for an employee’s disabilities under state law can be found in the superior court case, Silhouette Optical, Ltd. v. Commission on Human Rights and Opportunities, (Conn.Super.), 10 Conn.L.Rptr. 599, January 27, 1994 (Maloney, J.). There, the complaint alleged a violation of General Statutes § 46a-60(a)(1) and the Commission’s hearing officer held, "the [respondent] had a duty to investigate reasonable accommodations for [complainant], but did not do so." The Respondent employer appealed to the superior court. Judge Maloney refers first to the duty to make reasonable accommodations under federal law, and concludes by affirming the hearing officer’s decision that the respondent had a duty to make reasonable accommodations.

Based on the above, the Motion to Dismiss for failure to state a prima facie case is denied.

The Respondent also argues that the Complainant’s claims pursuant to General Statutes § 46a-58(a) should be dismissed because the Connecticut Supreme Court has ruled that it does not apply to employment discrimination claims.

The Commission replies that it agrees that § 46a-58(a) cannot be used to sustain claims of employment discrimination, but only those claims asserted under § 46a-60(a)(1). Employment discrimination asserted pursuant to the ADA and other federal discrimination statutes, it argues, may be adjudicated under § 46a-58(a).

Section 46a-58(a) provides:

In addition, § 46a-60(a)(1) states:

As these two statutes appear to cover the same claims, the Connecticut Supreme Court, in the case, Commission on Human Rights and Opportunities v. Truelove and Maclean, Inc., 238 Conn. 337 (1996) interpreted them to be mutually exclusive:

However, the Commission interprets the language, "deprivation of any rights, privileges or immunities, secured or protected by the . . . laws of . . .the United States" within General Statutes § 46a-58(a) to include discriminatory employment practices set forth under the ADA and other federal statutes. This interpretation is not consistent with the holding in Truelove and Maclean, Inc., supra.

The Supreme Court decided that General Statutes § 46a-58(a) did not encompass employment discrimination claims specifically prohibited by § 46a-60(a) because of the general rule in statutory interpretation that "specific terms covering given subject matter prevail over general language of the same or another statute which might otherwise prove controlling." Truelove and Maclean, Inc., supra, at 346, citing Gaynor v. Union Trust Co., 216 Conn. 458, 476 (1990); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 199 (1995). To interpret the statute so that it would include the federal statutes which prohibit employment discrimination, but not the state statute which specifically prohibits employment discrimination would be illogical, particularly since § 46a-58(a) also includes language which protects the "laws of this state." Therefore, if § 46a-60 cannot include employment discrimination claims under the specific state statute, even though it includes the language "laws of this state," it necessarily follows that it cannot include employment discrimination claims under the federal laws since the language "laws of . . . the Untied States" is also in the statute. Otherwise, any time a complainant makes any claims of employment discrimination, a claim will necessarily arise under § 46a-58(a) due to Connecticut’s status as a "deferral state" (see Section IV, infra). This means all complaints filed with the Commission are simultaneously filed with the United States Equal Opportunity Commission (EEOC) and, therefore, will always include the federal statutes. It is the undersigned’s conclusion that § 46a-58(a) does not encompass employment discrimination claims under either the state or federal statutes.

This conclusion is further supported by the federal employment discrimination statutes, themselves. Each of these statutes specifically requires a dual filing with the state human rights agency, thereby granting the Commission specific jurisdiction over federal employment discrimination claims. In the Connecticut Supreme Court case,

Joo v. Capitol Switch, Inc., 231 Conn. 328 (1994), the Court specifically declined to require exhaustion of administrative remedies in ADEA cases prior to filing a private suit of the federal claim within the state court. The respondent employer had attempted to argue that the ADEA claim was a "discriminatory practice" to which the procedures set forth in § 46a-83 applied and therefore it required the exhaustion of administrative remedies pursuant to that Chapter of the General Statutes. The Court held that the ADEA was not a "discriminatory practice" pursuant to the definition set forth within §46a-51(8), and therefore that administrative process did not apply. Id., at 341 n.18.

It follows then, that if it was here determined that the federal employment discrimination statutes are included within § 46a-58(a), which state statute is, in fact, defined as a "discriminatory practice," then the claimant would be required to exhaust that ADEA claim within the Commission contrary to the holding in Joo, supra. As a result, § 46a-58(a) would actually take away complainants’ rights to file private suits asserting federal claims in the state courts without first exhausting their administrative remedies. Or, in the alternative, complainants would be able to file their federal claims in state court but would be forced to also pursue the § 46a-58(a) claim within the agency at the same time. Not only might this dissuade complainants from filing private suits, but if they did choose to pursue both forums, would be a waste of the Commission’s valuable resources.

Based on the above, the Respondent’s Motion to Dismiss is granted as to § 46a-58(a).

The Respondent also argues in its Motion to Dismiss that the Commission, as a state agency, lacks the authority to adjudicate federal claims, and therefore cannot adjudicate the complainant’s claims asserted under Title VII and the ADA. It also correctly notes that the complainant has claimed physical disability discrimination which is not protected under the auspices of Title VII.

The Commission points to the status of the agency as a "deferral state" that is a party to a workshare agreement with the EEOC, the federal agency charged with adjudicating federal claims of discrimination. The Commission argues that it derives concurrent jurisdiction over federal claims from its deferral state status. The Commission also concedes in a footnote that it agrees with the Respondent that Title VII does not prohibit disability discrimination and asserts that it was alleged in the complaint in error.

The Respondent’s argument regarding Title VII does not require any analysis since the statute clearly does not protect against disability discrimination. Therefore, the Motion to Dismiss is granted as to the complainant’s Title VII claims. As for the Commission’s jurisdiction over other federal claims, more analysis is required.

Title VII, whose provisions are adopted by the ADA, requires that claims be filed first with the state employment practices agency where the discrimination occurred. The EEOC is specifically authorized by the ADA to enter into agreements with state agencies in deferral states, or "FEP agencies" as the EEOC calls them. Deferral states are states that have their own discrimination statutes and administrative agencies that enforce them. Connecticut is such a deferral state.

The district offices of the EEOC enter into contracts called "workshare agreements" with these state agencies, including the Commission, which provide for the dual filing of charges. The EEOC enters into annual workshare agreements with these state agencies for the purpose of allowing them the opportunity to investigate and resolve Title VII, ADA, and ADEA claims. The EEOC actually financially compensates these state agencies for so doing. These agreements are entered into in order to give the state the opportunity to redress the alleged injury and avoid federal intervention. Doe v. Odili Technologies, Inc., 1997 WL 317316, (D.Conn), Docket No. 3:96CV1957(AHN), May 25, 1997 (Nevas, J.); Gorman v. Hughes Danbury Optical Systems, 908 F.Supp. 107, 112 (D.Conn.1995). For an initial 60-day period, the state agency has exclusive jurisdiction to process all of the discrimination claims, including federal. The EEOC does not have jurisdiction until: (1) the 60-day period expires, or (2) the proceedings are terminated by the agency. Id. Proceedings are terminated when either: (a) the agency declares it won’t proceed; or (b) a waiver specifically identified in the workshare agreement occurs. Both Title VII and the ADA require the EEOC to grant "substantial weight" to the final findings and orders of the state FEP agencies. See 42 U.S.C. § 2000e-5(b) and 29 CFR §1601.21(e).

The Commission has attached a copy of the workshare agreement currently in place between the Boston division of the EEOC and the Commission. See Exhibit D to the Commission’s Objection to Respondent’s Motion to Dismiss. The agreement clearly provides that the Commission will initially process federal claims unless a request is made by the EEOC to proceed first. (¶III.) It provides further that "once [the Commission] begins an investigation, it resolves the charge." (¶¶II.C and V., and ¶C to Section C, attached to agreement). Resolving the charge includes "orders after public hearing." (¶V.B). Based on the above, the Commission has jurisdiction to adjudicate the complainant’s federal claims pursuant to the ADA.

This finding is supported by the federal district court case, Doe v. Odili Technologies, Inc., supra. There, as here, the complainant filed charges with the Commission pursuant to §46a-60(a)(1) and the ADA. After 57 days had passed, she withdrew these charges from the Commission and the EEOC through her attorney. She reinstated the charges a month later solely with the EEOC, and obtained a "notice of right to sue," and then instituted a private action in federal court. The court ruled that it did not have subject-matter jurisdiction over the ADA claims because the claimant had failed to exhaust her administrative remedies with the Commission by withdrawing prior to the expiration of the 60 days. Id. This Connecticut case not only supports the Commission’s argument that it has jurisdiction over federal employment discrimination claims, but shows that federal courts actually lose their subject-matter jurisdiction when the federal claims are not first reviewed by the state agency. Therefore, the Respondent’s Motion to Dismiss is denied as to the ADA.

For the foregoing reasons, the Respondent’s Motion to Dismiss is denied in part and granted in part. The Motion to Dismiss is denied as to the complainant’s alleged failure to state a prima facie case and as to the ADA. The Motion to Dismiss is granted as to § 46a-58(a) and Title VII.

It is so ordered this 30^th day of September, 1999 at Hartford, Connecticut.

______________________________

Hon. Lisa B. Giliberto, Presiding Human Rights Referee

cc: James Duarte
David L. Kent, Esq.
Jeffry H. Odell, Esq.
Henry A. Platt, Esq.
Raymond Pech, Esq.