Memorandum of Decision - Kowalczyk v. City of New Britain
CHRO No. 9810482
Commission on Human Rights :
and Opportunities ex rel.
Lynne Kowalczyk, Complainant
City of New Britain; : March 15, 2002
Members of the Board of Education
of the Consolidated School District
of New Britain;
Scott Macdonald; Ashley Roberts, Respondents
MEMORANDUM OF DECISION
On or about March 23, 1998, Lynne Kowalczyk (“the complainant”), a physical education teacher in New Britain, filed an Affidavit of Illegal Discriminatory Practice (“the complaint”) with the Commission on Human Rights and Opportunities (“the commission”), alleging that the City of New Britain, members of the Board of Education, and two employees (collectively, “the respondents”) discriminated against her on the basis of her disability and her sexual orientation, in violation of General Statutes §§46a-60, 46a-70(c), 46a-71b, 46a-81c, 46a-81h, and 46a-81i(b),[i] as well as the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§12101 et seq., as enforced by General Statutes §46a-58(a). (Exhibit [“Ex.”] C-1)[ii]
The commission investigated the charges of the complaint, found reasonable cause to believe that a discriminatory practice had occurred, and unsuccessfully attempted to conciliate the matter. On May 30, 2000, the commission investigator certified the complaint to public hearing in accordance with General Statutes §46a-84(a). (Ex. C-3)
Due notice of the public hearing was issued to all parties and attorneys of record on June 30, 2000, in accordance with General Statutes §46a-84(b) and §46a-54-90 of the Regulations of Connecticut State Agencies (“the regulations”).[iii]I conducted a public hearing on October 1, 2, 3, 9 and 17, 2001. Thereafter, the parties filed post-hearing briefs and the record closed on January 16, 2002.
FINDINGS OF FACT
1. The named respondents are the City of New Britain (“the city”); the members of the Board of Education of the Consolidated School District of New Britain (“the school board”); [iv] Scott Macdonald (labor counsel and director of human resources for the school board); and Ashley Roberts (principal of DiLoreto School). (Ex. C-1; see testimony of Macdonald, transcript p. 619; testimony of Roberts, transcript p. 296.)[v]
2. The complainant, Lynne Kowalczyk, is a Connecticut-certified physical education teacher who has been employed by the respondent school board since 1987. (Exs. C-1, C-2, C-4, C-5; Kowalczyk, 191) During the course of her career in New Britain, she has taught at a variety of schools, often splitting her weekly assignments between two or more schools. (Ex. C-5).
3. The complainant unquestionably enjoys and is fulfilled by teaching, particularly on the elementary school level. (Kowalczyk, 55-56) At various times, she has organized a school field day, an after-school gym program, and a volleyball program, and she has been involved in the student council. She is and has been a dedicated teacher, whose work has garnered her commendations and laudatory evaluations. (Exs. C-6, C-7)
4. The complainant began working part-time at DiLoreto School in 1992. For the
1997-98 school year, the complainant was assigned to one and a half days at DiLoreto and three and a half days at Northend Elementary School. (Ex. C-5; Kowalczyk, 33-34, 36)
5. The complainant has suffered from depression and anxiety since 1992 or 1993. (Kowalczyk, 32) The severity of her condition fluctuates and sometimes affects her sleeping, eating habits, concentration, disposition, memory, and interpersonal relations. The complainant becomes particularly anxious when facing new situations or new places. (Kowalczyk, 32-33, 148-52, 683-85; Conrad, 458, 490-94; Ex. C-23) The complainant’s condition can be and has been treated with varying doses of several medications. (Exs. R-16, R-26, R-62, R-98; Kowalczyk, 681-83; Conrad, 454)
6. The complainant began therapy with Carol Mucha, a social worker (and later a psychologist as well) at the Institute of Living, in 1992 and with Dr. Cynthia Conrad, a psychiatrist, in October 1993. Conrad diagnosed the complainant as suffering from, among other things, “[m]ajor depression, recurrent episode, moderate severity (296.32).”[vi] The complainant continued to see both therapists periodically, including during the times pertinent hereto. (Ex. R-97; Kowalczyk, 34; Conrad, 423-26, 458-59, 468)
7. The superintendent of schools, James Rhinesmith,[vii] had been aware of the complainant’s condition for several years prior to October 1997. He understood that the complainant did not adapt well to changes in work location and, in one particular instance in the early 1990s, he had actually modified an earlier school assignment to allay her anxiety. (Kowalczyk, 36-37; Rhinesmith, 234-38)
8. In June 1997, Conrad perceived the complainant’s depression generally to be in remission, but she prescribed an anti-anxiety medication to help with sleep disturbances and muscle tension headaches. In Conrad’s medical opinion, the complainant was, at that time, fully able to perform her job duties at Northend and DiLoreto. (Ex. R-16; Conrad, 427, 442-43, 451, 469)
9. The complainant is a lesbian, a fact known to her colleagues, the principal of DiLoreto, and Rhinesmith, the school superintendent, long before the pivotal events of late October 1997. (Kowalczyk, 31, 35-36; Rhinesmith, 221-22, 232-34)
10. The complainant was involved in a relationship with and resided with Beth Kavy, her partner from 1988 until early 1997. In early 1995, the complainant had applied for and was granted a leave of absence when Kavy gave birth to a child; normally, when two parents or partners work in the school district, only one is granted parental leave. The women’s relationship, along with the circumstances surrounding the complainant’s leave of absence, was common knowledge among the faculty and administration. (Kowalczyk, 35-36, 76; Rhinesmith, 221-22, 232, 234, 256-57)
11. Kavy taught at Slade Middle School in New Britain during the 1996-97 school year. During that time, the complainant began a relationship with Maria Garcia, the school nurse at DiLoreto. The complainant continued to live with Kavy for several more months, but by the fall, her relationship with Garcia intensified, her relationship with Kavy ended, and the complainant moved out. Nonetheless, the complainant remained close friends with Kavy, and at the end of October 1997, the two began to renew their prior relationship. (Kowalczyk, 82-83, 101; Kavy, 362)
12. In the summer of 1997, aware that Garcia worked at DiLoreto, Kavy applied for and was
assigned to a new special education program at DiLoreto for the 1997-98 school year. Even before the school year began, the complainant was concerned about the proximity of all three women within the same school building and about the ramifications of that work situation, but doubted that any incidents would occur when school was in session. Kavy shared the complainant’s trepidation, but also acknowledged that Garcia, prone to jealousy and quick to anger, had the potential to “blow up” at school.[viii] Wary of such possibilities, Kavy attempted to have the special education program moved to another school. The program was not moved, however, and the complainant and Kavy agreed to keep their distance from one another during the school day. (Kowalczyk, 102-06, 185-88, 191-92, 200-01; Kavy, 251, 279-80, 284-92, 360-61)
13. On several occasions prior to mid-October 1997, Kavy received several anonymous,
harassing letters or e-mails at school, apparently from Garcia. After Macdonald (the director of human resources) and Roberts (the DiLoreto principal) investigated and interviewed various teachers, including the three women, the e-mail security system was improved and the e-mail usage policy modified. (Macdonald, 621-24; Roberts, 314-16; Exs. R-18, R-19, R-35) Several administrators met with the women in an attempt to end the harassment, and Roberts counseled the women to keep their private life out of the school. (Kowalczyk, 91-92, 94-96; 186-87)
14. Although the harassing e-mails and letters ceased, on October 29, 1997, the complainant received an anonymous phone call indicating that her father was seriously ill and had been hospitalized. Kavy received a similar message about the complainant’s father on her pager. Both women left the school, creating a sudden disruption and necessitating room coverage. The complainant’s father, in fact, was not at the hospital, or even ill, and the complainant and Kavy realized they were the victims of a hoax. Kavy and the complainant believed that Garcia was the source of the deceitful communications. (Kowalczyk, 77-81; Macdonald, 624; Ex. R-35)
15. Later that day, the complainant decided to break off her relationship with Garcia. When the
complainant and Garcia were in the complainant’s apartment that night, the complainant told Garcia that she wanted to end their relationship. The complainant then telephoned Kavy to come to her apartment for support, having told Kavy earlier in the day of her intentions. After Kavy arrived, angry words were exchanged, and a physical altercation developed between Garcia and Kavy; Garcia ultimately punched Kavy, resulting in a broken nose and black eye. (Ex. R-21; Kowalczyk, 38-39, 107-08; Kavy, 365-66)
16. Before October 29, 1997, no physical altercations involving any of the three women had
ever occurred on school grounds or during school hours. (Kowalczyk, 65, 185)
17. On the morning of October 30, 1997, Kavy arrived at school with a bandaged nose and
bruised face. Shortly thereafter, Kavy’s union representative informed Roberts of the women’s altercation the previous night. Roberts, in turn, telephoned Rhinesmith, described the situation, noting that the situation had already sparked a disruption of the school day, and suggested they meet with the three women and their union representatives. Rhinesmith, who was already aware of the relationship among the three women, as well as of the recent harassment, became apprehensive about the potential for future violence and embarrassing altercations in front of faculty, parents, or students, as well as the need for the school to free up other personnel to deal with their problems. He also believed that the school administration should not be involved in mediating personal disputes among employees. Rhinesmith decided almost immediately that he would transfer all three from DiLoreto to other, separate assignments. He then met with and explained the situation to Macdonald and sent Macdonald to bear his message to the complainant, who was working that day at Northend School. (Roberts, 297-302, 310-11, 317-21; Rhinesmith, 215-19, 221-23, 228-33, 251-54; Macdonald, 625-27)
18. Rhinesmith made his decision without input from Roberts, Macdonald, or anyone else. (Rhinesmith, 233-34; Roberts, 305; see comments of Attorney D’Ambrosio, 89)
19. According to a school board policy statement, the superintendent of schools has the discretion and authority to transfer personnel “as [he] deems to be in the best interest of the New Britain School District.” (Ex. R-96; see also Rhinesmith, 225-26, 257; Roberts, 307) The procedures for transfer of a teacher are set forth in a collective bargaining agreement. (Ex. C-31) Article 8, the pertinent provision of the agreement, contains no limitation on the right to involuntarily transfer a teacher except to provide appropriate notice and to allow appeal through a grievance process. (Id., pp. 30-31) The complainant did eventually file a grievance, which was denied by the school board. (Kowalczyk, 183; Ex. R-55)
20. Later on October 30, 1997, the complainant, a union representative, Macdonald, and athletic director Bill Lesinski met at Northend. Macdonald informed the complainant that she was being transferred from DiLoreto to another assignment because of the situation involving the complainant, Kavy, and Garcia. (Kowalczyk, 40-41, 187, 189; Macdonald, 630-31)
21. The next day, the complainant met with Roberts, Kavy, Macdonald, and a union representative for further discussion. During the course of the two meetings, Roberts and Macdonald expressed their concerns that the three women’s relationship bore the potential for future altercations, possibly even physical harm. Roberts also indicated that having the three in the same school could be disruptive to the staff and the administration each time a meeting was called to address an emergent problem. Roberts further opined that the transfer was for the complainant’s safety and the restoration of her reputation. Someone indicated that logistically the complainant would be the easiest of the three to move, because she only worked a day and a half at DiLoreto. (Kowalczyk, 41-42, 120-21, 125, 127-28, 169; Roberts, 300, 332-33; Macdonald, 637-38; Ex. R-19)
22. Kavy was also immediately transferred to another school within the school district. Approximately one week later, Garcia was transferred as well. (Ex. R-35; Macdonald, 679)
23. In a letter to the complainant dated November 3, 1997, Macdonald confirmed the complainant’s transfer, based upon the “needs of the [school] District,” and identified her new reporting duties for the remainder of the school year. She would continue her three and a half days at Northend, but instead of DiLoreto, would work one day at Holmes, and a half-day at Smalley.[ix] (Ex. R-23; see also Kowalczyk, 42, 114) The new assignments were in the same general vicinity as DiLoreto, and the complainant would continue to perform the same teaching duties at the same salary, with a similar schedule and working conditions. (Ex. R-34; see also Exs. C-4, C-41; Kowalczyk, 175-76)
24. After the complainant was told that she was being transferred to a different school, she began to experience symptoms of anxiety and depression. (Kowalczyk, 33; Ex. R-28) She failed to report to Holmes on November 4, 1997 because of a severe depressive episode. She mistakenly believed that her doctor had contacted the school to explain the complainant’s absence, so she herself did not call Macdonald or anyone at Holmes. (Kowalczyk, 42; 135)
25. On November 4, 1997, Dr. Mucha saw the complainant, who was exhibiting symptoms of depression due to the problems in her relationships with Kavy and Garcia. (Kowalczyk, 137-38, 147; Ex. R-25) [x]
26. On November 4 or 5, 1997, after speaking with the complainant on the telephone, Dr. Conrad determined that the interpersonal relationships and the imminent change in work assignments were aggravating the complainant’s depression and anxiety. (Kowalczyk, 139-40; Conrad, 445-46, 451-58, 477-79; Exs. C-9, R-26) Conrad adjusted the complainant’s medications (Ex. R-26), and on November 6, 1997, she reiterated her assessment in a facsimile transmittal to Macdonald:
Lynne Kowalczyk has been under my care for clinical depression. She has been
fully capable of performing her duties at Northend and DiLoreto schools. The
suggestion of transfer, however, has set off a depressive episode. To follow
through with a transfer would only exacerbate her symptoms. Therefore, as her
doctor, I recommend against any type of transfer or reassignment.
(Ex. C-9; see also Conrad, 451-56) Accompanying the letter was a “medical examiner’s certification,” in which Conrad noted that the complainant had no work restrictions. (Ex. C-9) Macdonald telephoned the complainant after receiving Conrad’s certification and told her that Conrad’s note did not sufficiently address the issue of work restrictions and that she should report to work as assigned. (Macdonald, 645-46) Consequently, Conrad sent Macdonald an amended certification the next day, in which she indicated that the complainant’s “work is restricted in relation to transfer or reassignment.” (Ex. R-28; Conrad, 428-30; Macdonald, 646-47)
27. Still unclear about the work restrictions articulated by Conrad, Macdonald went to Northend school on November 10, 1997 and informed the complainant that she was being placed on administrative leave with pay, pending clarification of her medical issues and work restrictions. (Kowalczyk, 43, 144; Macdonald, 647-49
28. Macdonald wrote to Conrad on November 13, 1997, seeking further clarification of Conrad’s recommended work restrictions. (Ex. R-34; Macdonald, 650-51) Conrad replied on December 8, 1997, reiterating her earlier concerns:
Ms. Kowalczyk remains under my care for the treatment of a recurrent major
depressive episode. I had previously asked that you consider holding off on
any transfer until the current symptoms . . . had substantially remitted . . .
From the information made available to me by Ms Kowalczyk, it seemed to
me that an abrupt transfer would be unduly upsetting at that time, and might
not be quite so difficult once the depression had been adequately treated again.
. . . Although I do not feel that Ms. Kowalczyk’s symptoms prevent her from carrying out the duties of her position, I am concerned that you will not provide
a rationale for the proposed transfer . . .
(Ex. C-12; Conrad, 432, 446, 502; see Macdonald, 654)
29. Based on an office consultation with the complainant on December 9, 1997, Conrad observed improvement in the complainant’s depressive symptoms but she recommended adjustments to the complainant’s medication to combat her ongoing anxiety symptoms and her difficulty falling asleep. (Conrad, 502; Ex. R-98)
30. In December 1997, the complainant requested reinstatement to her previous positions at Northend and DiLoreto. (Exs. C-1 par. 46, C-2 par. 46; Kowalczyk, 171) Macdonald agreed that the complainant could return to work, but only at the three schools to which she had been assigned. (Macdonald, 655)
31. In January 1998, her depression somewhat less severe, the complainant returned to work three and a half days per week at Northend. She declined to work the remainder of the school year anywhere other than Northend or DiLoreto. (Kowalczyk, 44, 60, 154, 191-92; Macdonald, 656)
32. In 1998, the respondents retained Dr. Kenneth Selig, a forensic psychiatrist licensed in Connecticut, to assess the complainant’s fitness to teach in the school district. (Selig, 567-70; Ex. R-99) After reviewing the complainant’s job description and medical records prepared by Mucha and Conrad, Selig examined the complainant on April 9, 1998 and determined, in response to the specific question posed by the respondents, that the complainant was, in fact, fit to work as a physical education teacher at Northend. (Ex. R-52; Selig, 571-79)
After a follow-up evaluation on June 2, 1998, Selig determined that, with her depression controlled by medication, the complainant was able to teach not only at Northend, but also at any school in the New Britain school district. (Ex. R-56; Selig, 578-79)
33. On August 17, 1998, the complainant was notified that her upcoming assignments for the new school year would be in two of the middle schools. She sought and was granted medical leave due to severe depression and anxiety in response, once again, to the impending changes in her work location. (Macdonald, 656-57, 675; Exs. R-62, R-70)
34. On October 13, 1998, Selig evaluated the complainant to determine whether the complainant, after her leave of absence, was fit to return to the New Britain school district as a physical education teacher. Selig acknowledged that from August 1998 through early October 1998 the complainant had been unable to work at all. Nonetheless, retracting a portion of his June opinion, Selig also concluded that the complainant was now psychologically fit to work as a physical education teacher, but only on the elementary school level, not in a middle school.[xi] (Ex. R-70; Selig, 581-82). According to Selig,
I cannot think of a scenario in which somebody could work three and a half
days, at a high level, highly functionally, doing an excellent job and enjoying
the work, at one elementary school and be completely incapacitated from
working at any other elementary school in the same school system.
I can certainly envision scenarios in which somebody would prefer not to
work at any other elementary school. I can envision scenarios in which it
would be difficult for somebody to work at other elementary schools. I can
envision scenarios in which it would be stressful for someone to work at
other elementary schools.
But I cannot envision a scenario in which the person would be substantially
incapable. Incapable of working at other elementary schools. And certainly,
Miss Kowalczyk has demonstrated, that wherever she has been assigned, and
has gone to work, she’s done an excellent job, throughout the years of her service in New Britain.
35. Notwithstanding Selig’s assessment, the complainant, still suffering from recurrent episodes of major depression, remained on medical leave until the end of November 1998. (Exs. C-21, R-62, R-64, R-71; Macdonald, 656)
36. Conrad evaluated the complainant on November 24, 1998 and prepared a medical examiner’s certificate in which she indicated that the complainant could “[r]eturn to Northend Elementary School for full duties in physical education at that site.” (Conrad, 435; Ex. C-21)[xii] Upon her return to work at the beginning of December, 1998, the complainant was assigned to two days at Holmes and two at Smith. (Macdonald, 659-60, 675; Ex. C-5)
37. Following extensive therapy and adjustments to her medications, the complainant returned to work full time in the fall of 1999. (Kowalczyk, 45-46)
38. Prior to the events of late October 1997 and up until the time of this hearing, no New Britain teacher had been involuntarily transferred to another school because of a sexual relationship with another teacher. (Rhinesmith, 240)
39. In the early 1990s, two teachers at Slade Middle School, Gene Sessamen and Susan Truglio, were involved in some sort of personal relationship; the school principal and assistant principal, as well as other teachers, were aware of this relationship.[xiii] On occasion, Sessamen and Truglio had arguments about their differing expectations of their relationship or about other, unspecified matters. Several times the principal and assistant principal were told of loud, disruptive exchanges between the two. Both administrators received such information from teachers who had not witnessed the incidents but had been told of them by Kavy (who was teaching at Slade at that time). Once, Kavy spoke directly to the principal. Upon investigation, neither administrator was able to substantiate the allegations. (Sessamen, 264-69; Foran, 535-47; Brown-Springer, 547-58; see also Kavy, 272-77, whose self-serving testimony is suspect when compared to that of others, and whose credibility was already eroded with regard to other issues raised by the respondents’ counsel.)
40. On or about May 4, 1994, Ken Kezer, a physical education teacher and coach of the New Britain High School baseball team, was ejected from a baseball game for abusive language directed at the officials. The school principal issued a written reprimand to Kezer five days later. (Lesinski, 396-400; Ex. C-71)
41. On or about September 29, 2000, Daniel Granier, a physical education teacher and football coach at New Britain High School, lost his temper and, using profanities, shouted at his players in the locker room, in front of some parents who had come to pick up their children. The school principal issued a written reprimand to Granier on October 6, 2000. (Salina,[xiv] 401-04; Ex. C-69)
42. In early 2001, allegations arose concerning a possible sexual relationship between a male teacher and a female student at New Britain High School. Superintendent Rhinesmith did not initially pursue a formal investigation because he was told that the observed female might, in fact, have been the teacher’s spouse. Further information, however, ultimately led to the teacher’s arrest and resignation several months later. (Rhinesmith, 246-51; Exs. C-148, C-156)
DISCUSSION AND CONCLUSIONS
A. All statutory and procedural prerequisites to the holding of the public hearing have been satisfied, and the complaint is properly before the human rights referee for decision.
B. At the outset, the respondents’ counsel contends that the City of New Britain was improperly named as a respondent because it is not the complainant’s employer and has no control over the school board; that the administrators, Macdonald and Roberts, bear no individual liability; and that the school board itself, rather than its unnamed individual members, is the complainant’s employer.
The school board is, in fact, the complainant’s employer, as demonstrated by the collective bargaining agreements between the school board and the New Britain Federation of Teachers, which plainly identify teachers as employees of the school board. (Exs. C-31 and C-32; see also General Statutes §10-151, which likewise identifies teachers as employees of a board of education.) As discussed above, neither party appears to object to the complaint being amended by replacing the reference to the school board members with reference to the school board itself (see footnote 4).
Although I asked both parties to consider whether each respondent was properly named in this action, the complainant proffered neither evidence nor legal authority to demonstrate that the city itself is potentially liable for the alleged discrimination. Accordingly, I will treat the claim against the city as abandoned and it is, therefore, dismissed.
According to the complaint, both Roberts and Macdonald, allegedly aware of the complainant’s sexual orientation and alleged disabilities, decided to transfer the complainant in violation of federal and state anti-discrimination statutes. (See Ex. C-1, pars. 26, 32-37.) Roberts and Macdonald were not the complainant’s employers and, as a matter of law, supervisors and other employees cannot be found individually liable under the ADA. Crandall v. Connecticut General Life Insurance Co., 7 Conn. Ops. 232 (D.Conn. February 26, 2001). To the extent that any ADA claim is lodged against them, it is hereby dismissed.
Whether an individual employee may be liable under the Connecticut Fair Employment Practices Act (“FEPA”), General Statutes §§46a-51 et seq., is a matter yet to be addressed by any Connecticut appellate court. To date, there is a split of authority within the Superior Courts, as well as the Federal District Courts in Connecticut, regarding the applicability of §46a-60(a)(1)[xv] to individuals. See Robinson v. Connecticut Rental Centers, Inc., 2000 WL 1196689 *3-4 (Conn. Super.) (collecting cases). The language of §46a-81c mirrors that of §46a-60(a)(1): “an employer, by himself or his agent” shall not discriminate against an individual on the basis of sexual orientation, and presumably the arguments would be the same. See Kavy v. New Britain Board of Education, 1999 WL 619587 *5 (Conn. Super.) (under clear language of §46a-81c,school superintendent, personnel director and school principal are not employers);[xvi] contra Swanson v. Envirotest System, Inc., 1998 WL 928415 *3 (D.Conn.) (§46a-60(a)(1) and §46a-81c may impose “on supervisory employees who hold positions of power, control and authority, and who use that power, control, and authority to engage in conduct giving rise to a discrimination claim”). For the reasons set forth below, I need not contribute to either side of the debate at this time.
According to §46a-60(a)(5), however, it is a violation of FEPA “[f]or any person, whether an employer or employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so.” The Superior Courts have consistently found that a supervisory or individual employee may be held liable under §46a-60(a)(5). See, e.g., Robinson v. Connecticut Rental Centers, supra, 2000 WL 1196689 *3-4 (collecting cases); Kavy v. New Britain Board of Education, supra 1999 WL 619587 *6;see also Wasik v. Stevens Lincoln-Mercury, Inc., 2000 WL 306048 *7 (D.Conn.) (recovery against a supervisory employee may be cognizable under §46a-60(a)(5).) In fact, although the Federal District Court in Wasik noted that the complaint--like the complaint at issue here—never explicitly mentioned §46a-60(a)(5), it nonetheless examined the complaint itself for “any [alleged] conduct that could reasonably be construed as aiding or abetting a discriminatory practice.” Wasik v. Stevens Lincoln-Mercury, supra, *7. In the present matter there is unequivocally no conduct that could be so construed.
The sole decision maker was Rhinesmith, the school superintendent; although he is not a named respondent, he is the agent of, and his actions are attributable to, the school board. Despite their participation in many of the discussions and communications surrounding the complainant’s transfer, neither Roberts nor Macdonald was involved in the actual decision making or, as the record amply reveals, had any influence over Rhinesmith’s determination to transfer the complainant.[xvii] Furthermore, while Roberts and Macdonald knew of the complainant’s sexual orientation, there is no evidence showing that either was aware of the complainant’s alleged mental disability at the time of Rhinesmith’s decision.
Roberts conveyed information about the Kavy-Garcia episode to Rhinesmith on the morning of October 30, 1997, but she recommended no specific action other than a desire to resolve the issues among the three women. She met with the complainant after Rhinesmith’s decision and offered her own opinions in favor of the transfer, but she had never previously advocated such action. In fact, her history with the complainant shows her to be sensitive to and supportive of the complainant during personal difficulties stemming from her relationships.
Macdonald, likewise, had no involvement in Rhinesmith’s decision; he merely parlayed that decision to the complainant after it was made. While Macdonald continued to communicate with the complainant after her transfer—although in a manner clearly insensitive and unsettling—the complainant has adduced no evidence to show that Macdonald actually aided and abetted Rhinesmith’s determination. By its plain language, §46a-60(a)(5) contemplates the liability of someone who “in some way helps or compels another to act in a discriminatory manner.” Wasik v. Stevens Lincoln-Mercury, supra, 2000 WL 306048 *7. Macdonald did neither. Because the school board is the complainant’s sole employer, because Rhinesmith made his decision without any assistance or influence from Roberts or Macdonald, and ultimately, as discussed below, because the complainant has failed to prove a prima facie case of either disability or sexual orientation discrimination against the school board, her claims against the individual respondents under §46a-60(a)(5) must fail. [xviii]
C. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq. (“Title VII”) prohibits, inter alia, discrimination based on sex, but it does not protect employees from alleged discrimination based on their sexual orientation. Simonton v. Runyan, 232 F.3d 33, 35 (2nd Cir. 2000) Connecticut statutes, however, do ban discrimination in the workplace based upon an employee’s sexual orientation: It shall be a discriminatory practice in violation of this section . . . [f]or an
employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, . . . to discriminate against [any individual] in compensation
or in terms, conditions or privileges of employment because of the individual’s sexual orientation.
General Statutes §46a-81c(1); see Delgado v. Achieve Global, fka Learning Int’l, Inc., 2000 WL 1861853 *9 (Conn. Super.); Bogdahn v. Hamilton Standard, 1998 WL 756722 *2 (Conn. Super.).
Although Title VII does not apply in cases involving sexual orientation discrimination, the basic analysis common to all Title VII disparate treatment cases serves as an effective model for scrutiny of the present matter under state law. Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209, 225 (1996); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996); Delgado v. Achieve Global, supra, 2000 WL 1861853 *9. Here, where there is no direct evidence of discriminatory motive, the complainant must rely upon the three-step, burden-shifting paradigm established for Title VII employment discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) and its progeny. See Ann Howard’s Apricots Restaurant v. Commission, supra, 225.
Under the McDonnell Douglas approach, the complainant must initially establish a prima facie case, which gives rise to a presumption of discrimination. If the complainant succeeds, the burden of production shifts to the respondent to articulate—not prove—a legitimate, non-discriminatory reason for its employment decision. Should the respondent meet its burden, the presumption disappears and the burden reverts to the complainant, who must prove, by a preponderance of the evidence, that the proffered reason is actually a pretext for prohibited discrimination. The complainant retains at all times the ultimate burden of persuasion on the decisive issue—whether the respondent was motivated, at least in part, by discriminatory intent. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507-04, 515 (1993); Ann Howard’s Apricots Restaurant v. Commission, supra, 237 Conn. 225.
The elements of a prima facie case need not rigidly follow those set forth in McDonnell Douglas, but should be flexible, based on the factual scenario presented. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6 (1981); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 108 n.20 (1996). Furthermore, the complainant’s burden of proving her prima facie case is not an onerous one, and it has been described as “de minimis.” Weinstock v. Columbia University, 224 F.3d 33, 42 (2nd Cir. 2000); Ann Howard’s Apricots Restaurant v. Commission, supra, 237 Conn. 225. To establish a prima facie case for a claim of sexual orientation discrimination, the complainant must establish that (1) she is a member of a protected class; (2) she is qualified for [or, has satisfactorily performed the duties required by] her position; (3) she suffered an adverse employment action; and (4) the circumstances surrounding the employment action give rise to an inference of discrimination. Delgado v. Achieve Global, supra, 2000 WL 1861853 *9; see Denault v. Connecticut General Life Insurance Company, 1999 WL 549454 *6, 9 (Conn. Super.)
(1) Sexual orientation is defined in Connecticut statutes as “having a preference for heterosexuality, homosexuality or bisexuality, having a history of such preference or being identified with such preference . . .” General Statutes §46a-81a. The complainant has described herself as a lesbian and alleges numerous, undisputed facts in support thereof. See Conway v. City of Hartford, 1997 WL 78585 *7 (Conn. Super.). Her sexual orientation unquestionably places her in a protected class under FEPA. See Denault v. Connecticut General, supra, 1999 WL 549454 *9; see also respondents’ post-hearing brief, p. 3.
(2) The second element of the prima facie case requires the complainant to demonstrate that she was qualified for the position she held at the time of the alleged discriminatory action—that is, the position from which she was transferred. The determination of whether a person is qualified requires an individualized, fact-specific assessment. Worthington v. City of New Haven, 1999 WL 958627 *9 (D.Conn.), citing Castellano v. City of New York, 142 F.3d 58, 67 (2nd Cir. 1998). The complainant need not demonstrate that her performance was flawless or superior; she merely must show that she “possesses the basic skills necessary for the performance of [the] job.” de la Cruz v. New York City Human Resources Administration, 82 F.3d 16, 20 (2nd Cir. 1996). Not only did the complainant hold all applicable certifications for her position as a physical education teacher, but the evidence amply demonstrates that for many years the complainant successfully taught in various New Britain elementary schools, including DiLoreto, the school from which she was transferred. The respondents have, in fact, conceded that the complainant was qualified. (Respondents’ post-hearing brief, pp. 3, 18)
(3) To satisfy the third element of her prima facie case, the complainant must demonstrate that she suffered an adverse employment action. An employee suffers an adverse employment action when he or she endures “a materially adverse change in the terms and conditions of employment.” Weeks v. New York State Division of Parole, 273 F.3d 76, 85 (2nd Cir. 2001); Galabya v. New York City Board of Education, 202 F.3d 636, 640, (2nd Cir. 2000); Crandall v. Connecticut General Life Insurance Co., 7 Conn. Ops. 232, 234 (D.Conn. 2001) (quoting Galabya). A materially adverse change in the terms and conditions of employment “might be indicated by a termination of employment, a demotion evinced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Galabya v. New York City, supra, 640; Crandall v. Connecticut General, supra, 234.
A purely lateral transfer that does not, in form or substance, constitute a demotion would generally not be an actionable adverse employment action. Galabya v. New York City, supra, 202 F.3d 641; Garber v. New York City Police Department, 1998 WL 514222 *4 (2nd Cir.). However, the presence of other factors might justify a different conclusion: a transfer accompanied by obvious changes such as a materially modification of job duties or requisite hours, or a diminution in salary, benefits or other perquisites may be tantamount to a demotion and thus may be considered an adverse employment action. Leak v. United Technologies Corp., 81 F.Supp. 2d 373, 376 (D.Conn. 1999); Gronne v. Apple Bank for Savings, 2000 WL 298914 *5 (E.D.N.Y.) A transfer may also involve less tangible changes, yet still be deemed materially adverse. Gronne v. Apple Bank, supra, *5. For example, a transfer to a position materially less conducive to earning potential or advancement might constitute an adverse employment action; de la Cruz v. New York City, supra, 82 F.3d 21; Leak v. United Technologies, supra, 376; as might a transfer from an elite position to a less prestigious one. Galabya v. New York City, supra, 641; de la Cruz v. New York City, supra, 21.
In this instance, the complainant was laterally transferred, for one and one half days per week, to physical education teaching positions at two other elementary schools in New Britain. There are no allegations, much less proof, that the transfer resulted or would result in any diminution of salary, benefits, or opportunities for advancement; any change in duties, workload, skills required, or hours worked; or any loss of prestige from that of her position at DiLoreto. Nothing in the record suggests that Holmes and Smalley were less desirable work sites, required a more arduous commute, or offered unpleasant working conditions. Furthermore, there is neither argument nor evidence that the complainant would lose her extracurricular responsibilities or that the change in teaching venue would render useless her years of experience elsewhere in the school district. See Rodriguez v. Board of Education of Eastchester Union Free School District, 620 F.2d 362, 366 (2nd Cir. 1980) (elementary school art programs so radically different from those in the middle school, from which employee was transferred, as to render useless her twenty years of experience and study in developing programs for middle school children); DeLeon v. Little, 1999 WL 1490299 *5 n.15 (D.Conn) (transfer may constitute a demotion where there is a dramatic downward shift in skill level required in the new position). Finally, the complainant has demonstrated no circumstances suggesting any intention on the part of the respondent to encourage her resignation. See Richardson v. New York State Department of Correctional Services, 180 F.3d 426, 444 (2nd Cir. 1999).
The sole, allegedly-detrimental effect of the transfer involved none of the factors discussed above. Rather, the threat of facing a new, unfamiliar teaching environment triggered an ongoing episode of depression and anxiety, resulting first in her unwillingness to report to her new assignment, later followed by several months of paid leave, along with ensuing difficulty in returning to work. These unique responses, after the fact, do not convert the otherwise lawful transfer into an adverse employment action. As the Second Circuit has stated, “An action that is not adverse to begin with does not become adverse because the employee resists it and the employer meets the resistance.” Weeks v. New York State, supra, 273 F.3d 87; see also Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997) (feeling frightened or intimidated is irrelevant if there is no materially adverse change in the terms and conditions of employment); Gronne v. Apple Bank, supra, 2000 WL 298914 *5 (plaintiff’s subjective feelings about the events and circumstances surrounding an allegedly adverse employment action do not control); Garber v. New York City, supra, 1998 WL 514222 *4 (same).
Transfers to different schools are not uncommon in the New Britain school district. The complainant’s own personnel records show movement among various schools in the decade preceding the events of October 1997. The complainant’s transfer bears none of the indicia of an adverse employment action and I conclude that she has not satisfied the third criterion of her prima facie case.
(4) Even if the complainant had successfully shown that her transfer was an adverse employment action, she did not prove the fourth element of her prima facie case. Because an employer who discriminates is unlikely to leave a “smoking gun” that demonstrates discriminatory intent, an employee must resort to circumstantial evidence to meet her burden. Chambers v. TRM Copy Centers Corporation, 43 F.3d 29, 37 (2nd Cir. 1994); Denault v. Connecticut General, supra, 1999 WL 549454 *9. In Chambers, the leading Second Circuit decision evaluating the fourth criterion of the prima facie case, the court recited examples of circumstances which might raise an inference of discrimination: an employer’s ongoing attempt, after discharging a qualified employee, to seek similarly qualified applicants; an employer’s criticism of the employee or her performance using degrading terms relating to the employee’s protected class; invidious comments about others in the employee’s protected class; the timing or sequence of events leading up to the adverse employment action; and favorable treatment of others not in the protected class. Chambers v. TRM, supra, 37; see also Denault v. Connecticut General, supra, *9 (acknowledging that the Second Circuit approach to the fourth criterion is “for good reason applicable in our state to discriminatory discharge cases).[xix]
The complainant’s argument rests predominantly upon the fact that Rhinesmith, the decision maker, was aware of the complainant’s sexual orientation prior to his decision to transfer her. (See, e.g., complainant’s post-hearing brief, pp. 24, 26.) Equating Rhinesmith’s knowledge, by itself, with discriminatory motive requires far too great a leap in logic than I can make, and the mere fact that the complainant’s sexual orientation differs from that of the decision maker is not a circumstance that gives rise to an inference of discrimination. Delgado v. Achieve Global, supra, 2000 WL 1861853 *9. As the respondent aptly points out in its reply brief, Rhinesmith was aware of the complainant’s sexual orientation for many years, yet nothing in the record remotely suggests an ongoing antipathy toward her or toward homosexuals in general. On the contrary, Rhinesmith showed a marked sensitivity when he allowed the complainant to take a family leave after Kavy’s daughter was born, as well as when he modified an anxiety-producing work assignment in the early 1990s. (See Findings of Fact 7, 10.) If he did not want lesbian teachers in the school system, transferring the complainant to a comparable position within the district would not have been a logical step.
The complainant has offered no evidence of the sexual orientation of the person, if any, who replaced her at DiLoreto. Even if she had, her argument would be undercut by the mere fact that she was not terminated, but remained in the school system in a comparable job with comparable benefits.
While the complainant’s sexual orientation was common knowledge, the record lacks any statistical or anecdotal evidence of invidious comments or actions by the decision maker, or by anyone in a position to influence him, directed toward the sexual orientation of the complainant. For that matter, the record contains no evidence of any disparaging comments, made by any employee, in any context, about the complainant’s or anyone else’s sexual orientation.
Another way for the complainant to satisfy the fourth element is by demonstrating that she was treated differently than, or that the respondent afforded preferential treatment to, similarly situated employees outside of the complainant’s protected class. McGuiness v. Lincoln Hall, 263 F.3d 49, 53 (2nd Cir. 2001); Chambers v. TRM, supra, 43 F.3rd 37; Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 91 (2nd Cir. 1996); Delgado v. Achieve Global, supra, 2000 WL 1861853 *6. To pursue this argument successfully, the complainant must demonstrate that comparable employees were similarly situated in all material respects, but for the protected class. In other words, “where a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiff’s to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” McGuiness v. Lincoln Hall, supra, 54. The complainant has presented evidence of two physical education teachers who were mildly rebuked for coarse language and anger while coaching ball games, and of another teacher who was not immediately investigated amidst rumors that he was sexually involved with a student. None of the incidents described by the complainant involves similarly situated teachers.
The record contains no evidence of the sexual orientation of the other physical education teachers, nor are the factual situations remotely alike. Each of the other teachers was involved in an inappropriate, one-time verbal outburst, directed at students during a sporting event. Each was subject to a written reprimand at the hands of the high school principal. Rhinesmith was not involved in or even aware of those incidents.
The complainant, on the other hand, was caught up in the ongoing, simmering tension of her personal relationships, and she was the raison d’être for the ultimate physical violence between Kavy and Garcia. The situation involving the three women needed to be defused, and, rather than punish the participants, Rhinesmith transferred them to avoid further incidents, possibly while school was in session. Lacking any similarities, other than that the ostensibly comparable situations involved physical education teachers, the proffered examples are not relevant here.[xx] See, McGuiness v. Lincoln Hall, supra, 263 F.3d 54, discussing Shumway v. United Parcel Service, Inc., 118 F.3d 60 (2nd Cir. 1997).
The complainant’s relationships with other employees and the events precipitating her transfer bear no similarity to the matter of the resoundingly more egregious teacher-student sexual relationship. The complainant’s non-punitive transfer pales against the other teacher’s forced resignation. This is hardly an example of a similarly situated teacher receiving preferential treatment for comparable behavior. The complainant’s situation may have been resolved hastily, without any investigation—in contrast with the more deliberate approach in the other case—but the superintendent’s ultimate response was far more harsh (and appropriately so) in the latter situation. The complainant’s reliance on this example is grossly misplaced.
Inexplicably, the complainant does not even discuss the Sessamen/Truglio relationship in her post-hearing brief, even though that intramural romance resembles her situation more closely than the other examples. Sessamen and Truglio, according to Kavy, were involved in a romantic relationship and often fought vehemently in the hallway. Neither teacher was ever transferred, a decision which ostensibly distinguishes it from the transfer of the complainant and the other two gay teachers. Nonetheless, the complainant fails for several reasons to demonstrate convincingly that she was treated differently than similarly situated heterosexual teachers. First of all, Kavy’s testimony deserves little credence. On several occasions during her cross-examination, her credibility was called into question when her evasive testimony proved at odds with prior deposition testimony. Kavy also has a lawsuit against the school board predicated upon the same underlying facts as here; it is not hard to view her testimony as colored by her own interests and that of the complainant, who is once again her partner. On this particular matter, the complainant has offered no corroboration; conversely, Kavy’s version is further undercut by the credible testimony of school administrators Foran and Brown-Springer, who, upon investigation, were unable verify Kavy’s tales.
Finally, the complainant has failed to show that Rhinesmith even had any knowledge of or involvement with the Sessamen/Truglio relationship. Rhinesmith himself testified that he had never been confronted with a situation similar to that of the three women. Without the linchpin of a common decision maker, the complainant fails to show that she was similarly situated to Sessamen or Truglia. McGuiness v. Lincoln Hall, supra, 263 F.3d 54; Denault v. Connecticut General, supra, 1999 WL 549454 *9.
The complainant has failed to satisfy both the third and fourth elements of her prima facie case.
Her transfer, however undesirable or intimidating, did not constitute an adverse employment action, nor did it occur under any circumstances raising an inference of discrimination. Rhinesmith’s decision may have been too harsh, too precipitous, but in exercising his authority to make such transfer, he was sincerely motivated by the interests of the school—avoiding future disruptions and their concomitant demand on school resources—and not by any discriminatory animus pertaining to the sexual orientation of the complainant.
D. The complainant alleges that her transfer from DiLoreto School constitutes unlawful discrimination on the basis of her mental disability in violation of both the ADA and FEPA. The ADA prohibits covered employers from discriminating against an otherwise qualified employee “because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §12112(a). According to FEPA, it is a discriminatory practice [f]or an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to . . . discriminate
against [any individual] in compensation or in terms, conditions, or
privileges of employment because of the individual’s . . . present or past history of mental disability . . .
General Statutes §46a-60(a)(1).[xxi]
In the absence of direct evidence of discriminatory motive, courts generally analyze disability discrimination claims using the three-step, burden-shifting paradigm established for Title VII employment discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and its progeny. See, e.g., Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc., 198 F.3d 68 (2nd Cir. 1999); Ann Howard’s Apricots Restaurant v. Commission, supra, 237 Conn. 224-25. As in her claim for sexual orientation discrimination, the complainant initially bears the minimal burden of proving a prima facie case, which gives rise to a presumption of discrimination. To satisfy her prima facie case under the ADA, the complainant must demonstrate, by a preponderance of the evidence, that (1) the respondent is subject to the applicable statutes;[xxii] (2) she was disabled under the applicable statutes; (3) she was qualified to perform the essential functions of the position with or without reasonable accommodation; and (4) she was subject to an adverse employment action because of her disability. Giordano v. City of New York, 274 F.3d 740, 747 (2nd Cir. 2001); Mendes v. Jednak, 92 F.Supp.2d, 58, 65 (D.Conn. 2000). Connecticut courts and this tribunal follow the same analysis. Ann Howard’s Apricots Restaurant v. Commission, supra, 225; Connecticut Commission on Human Rights and Opportunities v. Wal-Mart Stores, Inc., Superior Court, judicial district of New Britain, Docket No. CV-01-0507207S (January 2, 2002) (Cohn, J.).
(1) As discussed above, the sole respondent is the school board. The complainant has failed to demonstrate any cause of action against the city itself; no action may lie against the individual respondents under the ADA or under General Statutes §46a-60(a)(1); and the unequivocal facts preclude any individual liability under §46a-60(a)(5). (See Conclusion B.)
(2) To satisfy the second criterion of the prima facie case, the complainant must demonstrate that she suffers from a disability that is protected by the applicable statutes. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154 (2nd Cir. 1998); Worthington v. City of New Haven, 1999 WL 958627 (D.Conn). According to the ADA and its implementing regulations, the term “disability” refers to (a) a physical or mental impairment that substantially limits one or more of her major life activities, (b) a record of such impairment, or (c) being regarded as having such impairment. 42 U.S.C. §12102(2); see 29 C.F.R. §1630.2(g)(1); Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999). In assessing whether the complainant was disabled, one must look at her condition at the time of the alleged discriminatory action. Heyman v. Queens Village, supra, 198 F.3d 73.
The complainant suffers from depression and anxiety. Federal regulations promulgated under the ADA define a mental impairment as “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities.” 29 C.F.R. §1630.2(h)(2). Under this regulation, the complainant’s depression and anxiety constitute mental impairments. However, not all impairments qualify as disabilities protected by the ADA. The complainant must also demonstrate that her impairment substantially limits a major life activity. This involves a fact-specific inquiry, for a given impairment may be substantially limiting in one circumstance yet not in another. Sutton v. United Air Lines, supra, 527 U.S. 483.
The term “major life activities” refers to functions “such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. §1630(2)(i); Heyman v. Queens Village, supra, 198 F.3d 72-73. The list is not exhaustive and it has been augmented by numerous court decisions. The complainant argues that she is substantially limited in the major life activities of sleeping and interacting with others, as well as “normal activities of daily living and pursuit of leisure activities and her ability to work at her normal level of functioning.” (Complainant’s post-hearing brief, p. 2) In 1999, the U.S. Supreme Court held that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures—both positive and negative—must be taken into account when judging whether that person is ‘substantially limited’ in a ‘major life activity’ and thus ‘disabled’ under the [ADA].” Sutton v. United Air Lines, supra, 527 U.S. 482. None of the parties has addressed whether the complainant’s impairment is substantially limiting in light of Sutton.
Nevertheless, I need not determine whether the complainant meets the ADA definition, because I can readily find that she is disabled under the applicable state law. Commission on Human Rights and Opportunities ex rel. Knowles v. Gilman Brothers, CHRO No. 9240221 (Memorandum of Decision, August 8, 1995), aff’d, Gilman Brothers v. Connecticut Commission on Human Rights and Opportunities, 1997 WL 275578 (Conn. Super.) While this tribunal generally follows federal precedent in interpreting state anti-discrimination statutes; Levy v. Commission, supra, 236 Conn. 103; there are places where there are distinct differences between the two. The Connecticut Supreme Court has found such differences to be purposeful and meaningful, and thus has departed from federal precedent. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 35 n.4 (1978); see also State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989) (while federal law provides guidance, it “defines the beginning and not the end of approach on the subject”); Commission on Human Rights and Opportunities ex rel. Grant v. Yale-New Haven Hospital, CHRO No. 9530477, p.20 (Memorandum of Decision, October 13, 1999). The definitions of “disability” in the ADA and FEPA—and the interpretive case law—differ significantly, and it is appropriate to look to the provisions of the more protective state law to determine if the complainant is disabled. (See, for comparison, cases that recognize the difference between the federal and state definitions of physical disability and thus yield different results; e.g., Commission on Human Rights and Opportunities ex rel. Chilly v. Milford Automatics, Inc., CHRO No. 9830459, p. 17 (Memorandum of Decision, October 3, 2000); Commission ex rel. Knowles v. Gilman Brothers, supra, CHRO No. 9240221, pp. 14-19.) Significantly, FEPA, unlike the ADA, does not require the complainant to prove that she is substantially limited in a major life activity. Commission ex rel. Knowles v. Gilman Brothers, supra.
Until October 2001, FEPA contained no definition of “mental disability” or “mental disorder.” According to P.A. 01-28 §1(20), which amended General Statutes §46a-51 as of October 1, 2001, “‘mental disability’ refers to an individual who has a record of, or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders.’” Testimony and documentary evidence provided by Dr. Conrad confirm that the complainant suffers from, among other disorders, recurrent major depression of moderate severity, identified by diagnostic code “296.32” in DSM-IV. (See Finding of Fact 6, supra.) The amended section should apply retroactively because its sole purpose was to clarify existing law and not to affect substantive rights.[xxiii] Quarry Knoll II Corporation v. Planning and Zoning Commission, 256 Conn. 674, 722 (2001).
Even prior to the enactment of P.A. 01-28, the Superior Court relied upon DSM-IV to determine if an impairment constituted a mental disorder or disability. In Conway v. City of Hartford, 1997 WL 78585 (Conn. Super.), the only Connecticut court decision attempting to define “mental disorder” for purposes of FEPA, the court addressed the question of whether gender dysphoria (transsexuality) is a mental disorder. According to the Conway decision, a mental disorder identified in DSM-IV would qualify as a disability:
General Statutes §46a-60(a)(1) does not provide a definition of “mental disorder,” nor do the definition sections of the General Statutes . . . . The term mental
disorder is, however, defined in General Statutes §17a-540 . . . [which] reads,
“‘Persons with a mental illness’ means those children and adults who are suffering from one or more mental disorders as defined in the most recent edition of [DSM].” See also Canning v. Lensink, Superior Court, judicial district of New Haven,
Docket No. 274308 (February 5, 1993)(Reynolds, J.) (citing General Statutes
§17a-540, and stating, “[i]n the definition of ‘mentally disordered’ our statutes incorporate the definition in the most recent edition of [DSM]”).
Id. at *5. See also Commission on Human Rights and Opportunities ex rel. Saksena v. State of Connecticut, Department of Revenue Services, CHRO No. 9940089, pp. 16-17 (Memorandum of Decision, August 9, 2001). Similarly, the Social and Human Services and Resources statutes define persons with psychiatric disabilities as “those persons who are suffering from one or more mental disorders as defined in the most recent edition of [DSM].” General Statutes §17a-458. Thus, the Conway case has two-fold applicability here. First, it gives credence to the position that the legislature was indeed attempting to codify an existing interpretation, thus allowing me to apply the public act retroactively. Second, even if P.A. 01-28 were not applied retroactively, the case law itself supports a conclusion that the complainant was protected under FEPA, prior to the 2001 amendment. The evidence before me amply shows that the complainant suffered from a DSM-identified disorder under either the present statute or its predecessor, and I conclude accordingly.
(3) To satisfy the third element of her prima facie case, the complainant must demonstrate that she is qualified to perform the essential functions of her position, with or without reasonable accommodation. 42 U.S.C. §12111(8); Cleveland v. Management Systems Corp., 526 U.S. 795, 801 (1999); Levy v. Commission, supra, 236 Conn. 107. Under the federal regulations a person is qualified if she “satisfies the requisite skill, experience, education, and other job-related requirements of the position . . .” and “with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. §1630.2(m). As discussed in the analysis of the complainant’s sexual orientation claim, the respondents have conceded that the complainant was appropriately qualified.
(4) To satisfy the fourth element of her prima facie case, the complainant must demonstrate that
she suffered an adverse employment action because of her disability. Again, the complainant’s case falters at this juncture. As discussed in the context of the sexual orientation claim, the complainant’s transfer does not constitute an adverse employment action. Moreover, the record lacks any probative evidence that Rhinesmith’s decision to transfer the complainant was prompted in any way by her disability.
Although Rhinesmith had been aware of the complainant’s mental disability, it was never even mentioned in the context of any of the events at the end of October 1997. The complainant provided not one shred of evidence that the decision maker was motivated by any discriminatory animus based on her disability; on the contrary, the record shows that, in the past, Rhinesmith had been particularly sensitive to her disability, providing accommodation in another stressful situation. Furthermore, the complainant has produced no evidence of any invidious comments by other employees about her disability—or about mental illness in general—either in the context of her transfer or at any other time. Finally, she has failed to show that similarly situated individuals with no mental disabilities were treated more favorably. Her proffered comparisons were accompanied by no reference to, much less analysis, of any person’s disabilities; in the sexual orientation situation, the complainant made no convincing argument and the same holds true here. Accordingly, I conclude that the complainant has not satisfied the critical final element of the prima facie case required by both FEPA and the ADA.
FINAL DECISION AND ORDER
The complainant has failed to sustain her prima facie burden both for her sexual orientation complaint and for her disability discrimination complaint. Therefore, in accordance with the provisions of General Statutes §46a-86, it is hereby ordered that the complaint be, and it hereby is, DISMISSED.
Dated at Hartford, CT this ___ day of March 2002.
David S. Knishkowy
Human Rights Referee
Copies mailed to all parties of record.
Party Represented by
Lynne Kowalczyk Doris B. D’Ambrosio, Esq. 40 Sunset Lane 784 Farmington Avenue
Berlin, CT West Hartford, CT 06119
City of New Britain; Dennis G. Ciccarillo, Esq.
Board of Education of the Consolidated Eisenberg, Anderson, Michalik & Lynch
School District of New Britain; 136 West Main Street
Scott Macdonald; Ashley Roberts PO Box 2950
New Britain, CT 06050-2950
Commission on Human Rights Regina M. Hopkins, Esq.
and Opportunities Assistant Commission Counsel II
21 Grand Street 21 Grand Street
Hartford, CT 06106 Hartford, CT 06106
[i] Neither the complainant nor the commission pursued the claims under
§46a-70(c), 46a-71b, 46a-81h, or 46a-81i(b) during the public hearing or in
[ii] Exhibits introduced by the complainant bear the prefix “C.” The respondents’ exhibits bear the prefix “R.” [iii] Although the notice was not offered as an exhibit, it nevertheless is part of the official file maintained by the Office of Public Hearings and thus is part of the record of this case. See General Statutes §4-177(d).
[iv][iv] The respondents’ counsel posits, without objection from the complainant, that this respondent should simply be the school board itself, rather than the individual board members. (Respondents’ Post-Hearing Brief, p. 15) The school board is, in fact, the complainant’s actual employer, as verified by the two collective bargaining agreements in evidence. (Exs. C-31, C-32)
[v] Hereinafter, references to testimony comprise simply the witness’s name and the transcript page number.
[vi] According to the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), the “296” designation comprises a diagnostic code for major depressive disorders; the fourth digit, 3, indicates that the complainant has had recurrent major depressive episodes, and the final digit, 2, indicates moderate severity. (DSM-IV, pp. 339-40) I take official notice of this oft-cited medical authority pursuant to General Statutes §4-178.
[vii] The superintendent is the chief executive officer of the school board. (Ex. C-34) Rhinesmith has been school superintendent since the fall of 1995. (Rhinesmith, 202)
[viii] On cross examination, when confronted with her earlier deposition testimony, Kavy recanted her direct testimony that she had no concerns about problems occurring within the school building. (Kavy, 352, 355, 384-85)
[ix] This letter superseded Macdonald’s October 30, 1997 letter, which incorrectly identified the complainant’s new assignments. (Ex. R-22; Macdonald, 628-29; Kowalczyk, 41-42)
[x] Mucha’s notes (Ex. R-25) do not mention the transfer and Mucha herself was not called to testify.
[xi] As far back as 1993, Conrad had observed the complainant’s inability to deal with middle-school students. (Ex. R-97)
[xii] It is never made clear why Conrad presumed to a “return” to Northend, since the complainant was no longer assigned there.
[xiii] The principal and assistant principal both characterized it as a “dating relationship.” (Foran, 541; Brown-Springer, 557)
[xiv] Paul Salina has been the principal of New Britain High School since July 2000.
[xv] General Statutes §46a-60(a)(1), as amended by Public Act 01-28 §8, states that it shall be a discriminatory practice “[f]or an employer, by the employer or the employer’s agent . . . to discriminate against [any] individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present of past history of mental disability, mental retardation, learning disability or physical disability . . .” On its effective date of October 1, 2001, Public Act 01-28 changed “an employer, by himself or his agent” to “an employer, by the employer or the employer’s agent,” and changed “mental disorder” to “mental disability.” [xvi] The Kavy case, for all intents and purposes, is a companion to the present case, arising out of the same employment decision precipitated by the Garcia-Kavy imbroglio. In Kavy, the original named defendants were the school board, Rhinesmith, Roberts, Macdonald, Garcia, and the Northend School principal. In ruling on a motion to strike, the Superior Court held that the individual respondents were not employers under §46a-60a(8) (which prohibits employers from sexually harassing employees) or §46a-81c, but they were individually subject to §46a-60(a)(5) which applies to “any person.” [xvii] According to the complaint, Macdonald and Roberts “planned to involuntarily transfer the complainant from her assigned position.” (Ex. C-1, par. 26). The complainant, however, conceded under oath that there was no such plan by the two administrators. (Kowalczyk, 98)
[xviii] In light of this conclusion, I will henceforth refer to the “respondent” in the singular where the context so warrants.
[xix] The Chambers approach to the fourth criterion in discharge cases should be no different from that in cases involving a job transfer, with the possible exception of the first consideration, i.e., replacement of a discharged employee.
[xx] The complainant also makes the broad and somewhat incredulous argument that she and the coaches were similarly situated merely because they were “all teachers dealing with students and parents and other faculty.” (Complainant’s post-hearing brief, p. 26. Such claim lacks sufficient specificity to allow me to find any meaningful comparisons.
[xxi] Prior to the effective date of Public Act 01-28, October 1, 2001, the statute referred to “mental disorder” rather than “mental disability.” [xxii] The prima facie case is sometimes described without the first criterion, which, as in the case of Title VII discrimination, is implicit in the analysis. See, e.g., Wernick v. Federal Reserve Bank, 91 F.3d 379, 383 (2nd Cir. 1996); Motta v. Meachum, 969 F.Supp. 99, 111 (D.Conn. 1997).
[xxiii] As noted earlier, P.A. 01-28 also amended §46a-60 by changing “mental disorder” to “mental disability.” The legislative history underscores the clarifying nature of the changes. According to Representative Feltman, “In the case of mental disability it’s just a phraseology because there are several references to mental disorder. This brings it up to the current state of the language.” See 44 H.R. Proc., Pt. 7, 2001 Sess., p. 2371, remarks of Rep. Art Feltman.