Nobili v. Purdy & Co. - 0120389, Memorandum of Decision
CHRO No. 0120389
Commission on Human Rights and Opportunities, ex rel. Thomas Nobili, Complainant
David E. Purdy & Company, LLC, et al., Respondents
February 6, 2004
MEMORANDUM OF DECISION
This case involves allegations of employment discrimination, in violation of the Connecticut General Statutes. The complainant, a certified public accountant who suffers from sinusitis, alleges that the named respondent discriminated against him because of his disability, denied him reasonable accommodations, and retaliated against him for requesting reasonable accommodations. The retaliation claim is also directed at the individual respondent, David Purdy, who manages the named respondent. For the reasons set forth below, all of the claims are dismissed.
On or about April 25, 2001, Thomas Nobili ("the complainant") filed an Affidavit of Illegal Discriminatory Practice ("the complaint")1 with the Commission on Human Rights and Opportunities ("the commission"), alleging that his employer, David E. Purdy & Company, LLC, discriminated against him on the basis of his disability, sinusitis, in violation of General Statutes §46a-60(a)(1)2. The complainant, who was terminated from his position, seeks compensation for lost wages and unpaid bonuses, as well as interest thereon.
The commission investigated the charges of the complaint, found reasonable cause to believe that a discriminatory practice had occurred, and attempted, without success, to conciliate the matter. On August 20, 2002 the commission investigator certified the complaint to public hearing in accordance with General Statutes §46a-84(a).
On or about March 20, 2003, with appropriate motion, the complainant amended his complaint by adding David E. Purdy, individually, as a respondent, and by adding a claim for retaliatory discharge against both respondents pursuant to General Statutes §46a-60(a)(4). (Hereinafter, the term "complaint" includes the amendment, the term "respondent" or "respondent company" refers to David E. Purdy & Company, and "Purdy" refers to the individual respondent. The singular "respondent" may also refer to both respondents as the context warrants.)
Due notice of a public hearing was issued to all parties and attorneys of record on August 30, 2002, in accordance with General Statutes §46a-84(b) and §46a-54-90 of the Regulations of Connecticut State Agencies ("the regulations"). (On November 4, 2002, §46a-54-90 was superseded, without changes pertinent hereto, by §46a-54-79a).
All statutory and procedural prerequisites to the holding of a public hearing have been satisfied, and the complainant is properly before this tribunal for adjudication.
I conducted a public hearing on June 30, July 1, July 2, July 3, July 7, July 8, September 3, September 5, and September 17, 2003. Thereafter, the parties filed post-hearing briefs and the record closed on November 7, 2003.
FINDINGS OF FACT
1. The complainant, Thomas Nobili, received a B.A. in Social Science in 1968 and his M.B.A. in 1972. He passed his certified public accountant ("CPA") examination in 1986 and, after three years of accounting experience, was certified as a Connecticut CPA in 1989. (Nobili, 7-8)3 Throughout his career in various accounting jobs, he has taken continuing education courses and has developed an expertise in tax accounting. (Id. at 8-9) He is a member of the Connecticut Society of Certified Public Accountants. (Id. at 11)
2. The complainant worked for the respondent's predecessor, Austin Felis & Company ("Felis company") from the end of 1994 until February 1999, when two of its principals, David Purdy and Joe Palsa, purchased Felis from its founder, Austin Felis. (Nobili, 11-14; Purdy, 1073-74) Shortly after the transaction, Palsa left to start his own firm. (Purdy, 1075) The successor firm--that is, the respondent company--became known as David E. Purdy & Company, LLC. (Nobili, 13; see Exhibit ["Ex."] C-10 4 ) David Purdy is the "managing member" of the respondent company. (See Respondent's Answer to Amended Complaint.)
3. At all times pertinent herein, the respondent company employed fewer than fifteen people. (Complaint, par. 3; Answer, par. 3; see Nobili, 15-17)
4. The respondent company had--and has--a broad client base and deals with, among other things, a wide range of individual and corporate tax matters, trusts and estates taxes, financial planning, and various business organizations. (Purdy, 1088-89; Ex. C-5)
5. The complainant's primary responsibilities as a CPA with the Felis company did not change after the respondent purchased the company. In addition to his normal accounting duties, the complainant read journals to keep abreast of tax developments and performed assigned research for Purdy. (Nobili, 59-60, 291, 306; Wysowski,727-28) The complainant, like his co-workers and Purdy himself, often faced significant pressure to meet various filing deadlines. (Wysowski, 715)
6. The complainant's initial annual salary at the Felis company was $40,000. In 1996 or 1997 his salary increased to $44,000 and it remained the same until the time of his termination. (Nobili, 21)
7. Until 2000, the complainant received a bonus after the tax season and a bonus at the end of the calendar year. In 1995, the complainant's two bonuses totaled $7,000; in 1996, approximately $9,500; in 1997, approximately $8,200; in 1998, approximately $10,400; and in 1999, $6,169.69. (Nobili, 23-38)
8. The respondent, like its predecessor, is located in an old, two-story colonial house at 41 Unquowa Place, Fairfield, CT. Inside the building's front entryway is a central staircase, which leads to the second floor. To the right of the staircase on the first floor is the receptionist's area, along with office machines. Behind that area, toward the back of the house, is a library/conference room. On the left side of the staircase is a large office, used by Austin Felis until his retirement; behind that is a small office, used by Palsa until his departure. At the top of the stairs are rest rooms and a water fountain. To the right is a small enclosed kitchen. A small, enclosed office is located to the left of the stairwell. The rest of the second floor consists of open space with desks and computer stations for the remainder of the employees, including the complainant. (Nobili, 39-41, 215-229; see Ex. R-11.)
9. When the complainant first began his employment with the Felis company, Purdy used the enclosed office on the second floor. In February or March 1999, after the respondent purchased the Felis company, Purdy moved into Austin Felis's old office on the first floor. (Purdy, 1078)
10. Many employees, both at the Felis company and at the respondent company, considered Purdy difficult to work for and did not like the way they were treated, either personally or professionally. Purdy routinely communicated by written memoranda rather than in person, he rarely held staff meetings, and he was often non-responsive and unhelpful on assignments that required his guidance or advice; at times, he was rude or sarcastic. Sometimes when work was not completed correctly or in a timely fashion, Purdy would simply take over the task without discussing the assignment with the employee. Purdy's management style consequently led to a high turnover of both accounting professionals and support staff--some voluntary, some by termination. (Nobili, 16-19, 157, 162, 198-200, 1048; Pander, 243, 251; Palsa, 266, 294-95, 316-19; Wysowski, 714-715, 766, 749-52; Purdy, 1087; Mitarotondo, 836-37)
11. Purdy and the complainant occasionally had loud arguments about work and personal matters. Other employees observed the complainant as the more vociferous of the two. (Wysowski, 804-08; Mitarotondo, 822; Nobili, 1585-87)
12. Stephen Breda, M.D., F.A.C.S., has been a licensed physician in Connecticut since 1988, with a specialty in otolaryngology. (Ex. C-71) 5 The complainant first saw Dr. Breda in 1990 for treatment of an ear infection. The complainant next consulted Breda in the middle of 1995 for sinus problems, with treatment culminating in surgery for obstructive rhinitis and a deviated septum. Over the next four years, the complainant saw Breda sporadically for various respiratory problems. (Nobili, 47, 60-61; Breda, 347-351, 365; Exs. C-1, C-2)
13. Breda saw the complainant approximately six times in the first four months of 2000 for sinus infections, nosebleeds, headaches, and facial swelling. (Nobili, 45-49; Breda, 350-53, 399; Exs. C-2, C-4)
14. Breda diagnosed the complainant's history of recurring sinus infections as "chronic sinusitis." Typical symptoms of chronic sinusitis include headaches, nasal discharge, and fever, often accompanied by facial swelling and visible drainage from the nasal cavities. (Breda, 354-56, 359, 404-05; Ex. C-4)
15. The complainant used nasal sprays and decongestants on a routine basis to increase moisture in his nasal passages; occasionally Breda prescribed antibiotics. (Breda, 357, 401-04: Nobili, 614)
16. Cigarette smoke can cause sinus congestion and promote infection, exacerbating the preexisting condition. (Breda, 357-58; Ex. C-2)
17. Throughout the complainant's employment with the Felis company and with the respondent, Purdy was a heavy smoker. (Labelle, 1486-87; Palsa, 292-93; Wysowski, 708, 775; Pander, 239; Purdy, 1308-10; Nobili, 40-42, 51-52) The complainant frequently saw cigarette butts and burning cigarettes in the ashtray in Purdy's second-floor office, and later in the first-floor office. (Nobili, 43)
18. The smoke from Purdy's second floor office irritated the complainant's sinuses and the complainant suffered occasional sinus infections and related symptoms. (Nobili, 45, 51)
19. Other employees smoked, but they did so outside the building and on the second floor fire escape. (Nobili, 52; Wysowski, 785, 802-03; Mitarotondo, 812-14; LaBelle, 1461, 1484)
20. The complainant frequently talked to other employees about his respiratory problems and aversion to smoke. (Nobili, 75, 91; Palsa, 294; Wysowski, 709, 757-58; Mitarotondo, 815; Labelle, 1465-66, 1478) He also kept his nasal sprays on top of his desk, where everyone, including Purdy, could see them. (Nobili, 77; Wysowski, 710-12; Purdy, 1317)
21. Purdy's move in early 1999 from the second floor office to the large office formerly used by Austin Felis did nothing to alleviate the complainant's symptoms. Purdy's second-floor office had two windows that he frequently kept open, and his ashtray was located close to the windows. In the first-floor office, Purdy kept no windows open, and the smoke would emanate from his usually-open door and drift up the stairwell to the second floor. (Nobili, 51-52; Wysowski, 704-05, 757)
22. In addition to using various nasal sprays and other medications, the complainant, both before and after Purdy's move to the first floor, opened windows on the second floor and operated a small fan in the window by his desk in an attempt to disperse the smoke. The other employees on the second floor, Michael Wysowski, a CPA, and Barbara Mitarotondo, the bookkeeper, were bothered by the fan and, in the cold weather, by the open windows. (Nobili, 76, 80-82, 485, 488, 686; Wysowski, 723-24; Purdy, 1083)
23. During the first week of January 2000, the complainant approached Purdy to discuss the effect the latter's smoking was having on his sinuses. This was the first time the complainant raised this issue with Purdy since Purdy moved to the first floor. Purdy offered to keep his door closed, but he generally failed to do so and the smoke remained unabated. (Nobili, 53-54, 449-54, 1556)
24. The complainant also met with Purdy in the early part of 2000 to discuss his future with the respondent company. (The record is not clear whether this occurred during the first conversation about smoking or whether it occurred later that month, or even as late as March or April.) Purdy avoided the issue by telling the complainant he had not given any thought to the matter. (Nobili, 426-27, 431, 1593-94; Purdy, 1076-77, 1307)
25. In mid-to-late January 2000, the complainant attempted to renew the conversation about the smoke, but Purdy indicated that he was too busy to discuss the matter at that moment. The complainant's subsequent attempts to address the smoke problems were likewise brushed aside by Purdy, with the latter repeatedly postponing discussion to some possible time in the future. (Nobili, 54-56, 211, 582)
26. In March, the complainant gave Purdy an article from Consumer Reports magazine, describing various air filtration devices. Shortly thereafter, Purdy brought in a used ionizer from his home and gave it to the complainant for operation on the second floor. (Nobili, 66, 73, 211; Purdy, 1320-21)
27. The complainant first placed the ionizer at the top of the stairs, but when it proved useless in that location, he experimented with various places on the second floor. When the ionizer was operated at the highest speed, it was too noisy for the other employees on the second floor; even then, it was relatively ineffective. Wysowski tried enclosing it in an open box to curtail the noise, but that only hampered its already limited effectiveness. (Nobili, 67-72,619-22; Wysowski, 716-20; Mitarotondo, 816-17, 827; Purdy, 1325) The complainant informed Purdy that the ionizer did not solve the smoke problem. (Nobili, 72-73)
28. Upon learning that the ionizer was inadequate, and that others were bothered by its noise, Purdy purchased an air filtration device for his own office in late March or early April, although he did not set it up until after the tax season. (Nobili, 72-74; Purdy, 1325-28). Nobili informed Purdy that the second device also failed to ameliorate the smoke upstairs. (Nobili, 75).
29. At Breda's suggestion, the complainant kept a journal that was to contain specific references to smoke related incidents. According to the journal, during the first six months of 2000 there were three or four notations of "bad" smoke, fewer than five "early" departures due to smoke (two of which were in the evening), and five-to-ten indications of a medical appointment, although the journal does not specify whether they were smoke related. (Ex. R-27)
30. All told, the complainant attempted in vain to discuss the smoking problems with Purdy approximately ten to fifteen times in 2000, mostly in the first quarter of the year. (Nobili, 209-11) On two or three of those occasions, the complainant specifically asked Purdy if he could use Purdy's old second-floor office to get away from the smoke. (Nobili, 83-84, 211, 424-25, 503-04)
31. After Purdy moved downstairs in early 1999, his old office was generally used to house a table, a computer, a large, noisy printer, and hundreds of boxes and files. Employees would sometimes use the room for private telephone calls. (Nobili, 83-84, 423-25, 689; Wysowski, 751; Purdy, 1084-86)
32. The other employees on the second floor, Wysowski and Barbara Mitarotondo, the bookkeeper, had no objections to the complainant moving into Purdy's old office and, in fact, both saw it as a sensible solution to the problems associated with the smoke, the noisy ionizer, and the open windows. (Nobili, 85; Wysowski, 721-22)
33. Purdy refused to allow the complainant to work in his old second-floor office. To one of the complainant's requests he suggested, in a sarcastic way, that the complainant could work in the kitchen. (Nobili, 84) 6 The kitchen was a small, poorly lit room with a sink, kitchen appliances and a small table where employees ate. A door led to the fire escape, where employees occasionally smoked, with the door left slightly ajar. (Nobili, 85-87, 601-02; Purdy, 1334-36)
34. In Purdy's opinion, the quality of the complainant's work in 1999 was consistent with that in prior years. (Purdy, 1091). However, Purdy grew increasingly dissatisfied with the complainant's work in 2000. In his opinion, the complainant's attitude changed, his efforts diminished, and the quality of his work declined. (Purdy, 1091-92, 1143, 1168, 1261-62; see Exs. R-4, R-5, R-6)
35. The respondent's employees completed detailed time sheets each week, coding time spent on particular files and general research, as well as on non-billable office matters, vacations, and other absences. (Nobili, 57-58) The accountants were expected to work a minimum of forty hours per week, but they had a significant amount of flexibility in their schedules and often took time out of the office for brief personal errands. Saturday office hours were common. As tax deadlines drew close, the accountants worked-and Purdy expected them to work-longer hours. (Nobili, 140-41, 603-04; Wysowski, 715; see Exs. C-17, R-1)
36. In March 2000, during the tax season, the complainant took two weekdays off to visit colleges with his son. (Nobili, 140-41) He made up most of that time on Saturdays, but the respondent attributed sixteen total hours to the complainant's available vacation time; his salary was unaffected. (Nobili, 142-43, 147-49, 458-59, 464-70; Exs. C-17, C-25, C-26) When the complainant sought an explanation, Purdy provided no answer but said that he would get back to the complainant. However, no further discussions ensued. (Nobili, 148-49)
37. One week prior to end of the 2000 tax season, the complainant left work early, telling Purdy's secretary that he was going home sick. After a brief respite at home, the complainant went to a previously scheduled appointment at the group home where his sister lived. Faced with a deadline and in need of some information, Purdy attempted to telephone the complainant at home but was unable to reach him. Accordingly, Purdy docked the complainant two hours of pay for that week, in which the complainant only worked a total of thirty-eight hours. (Nobili, 150-51, 468-71; Purdy, 1432-33; Labelle, 1474; Ex. C-17)
38. Throughout the summer of 2000, Nobili worked on several significant tax files. On many of these, his research, his conclusions and his preparation did not meet Purdy's satisfaction. Errors, incomplete work, and missed deadlines caused Purdy to expend much of his own time on these files. (Purdy, 1114-1171; see, e.g., Exs. R-4, R-5A, R-5B, R-6A through R-6E, R-7A, R-7B) Purdy rarely discussed these issues with the complainant in person, although he would sometime write notes that the complainant found unhelpful and which tended to exacerbate the communication problems between the two. (Nobili, 157, 160-61, 658, 1018-19; see, e.g., Exs. C-18, C-19)
39. The complainant made and received many personal telephone calls at work. (Wysowski, 768; Mitarotondo, 820; Labelle, 1472) He also read non-work related magazines at his desk (Wysowski, 757; Mitarotondo, 821) and on occasion, he was observed sleeping at his desk. (Wysowski, 756; Mitarodondo, 820) Purdy was not aware of these occurrences at the time. (Purdy, 1426)
40. Neither the respondent nor the Felis firm ever provided the complainant with written evaluations. After the respondent took over from the Felis company, the complainant never received any written or oral evaluations or specific complaints about the quality of his work. (Nobili, 160-65)
41. Nevertheless, the complainant was aware that Purdy was dissatisfied with his attitude and his work (Nobili, 197) and he told Labelle as early as March that he believed his job was in jeopardy. (Labelle, 1509-10)
42. The complainant, too, grew increasingly frustrated with Purdy's lack of guidance and general failure to communicate about both work and issues related to the complainant's health. (Nobili, 157; Wysowski 714)
43. The complainant himself concedes a decline in his productivity in 2000, but blames it on Purdy's smoking, Purdy's failure to communicate about work issues, and failure to provide effective accommodation for his sinusitis. (Nobili, 90, 432; Exs. R-2, R-27)
44. The complainant began looking for new job in the first few months of 2000. He had discussions with a friend about a new company the friend hoped to start. (Nobili, 1598)
45. One benefit of the complainant's membership in the Connecticut Society of Certified Public Accountants (see Finding of Fact ["FF"] #1) was a website where members could post their resumes and prospective employers could seek qualified employees. Believing that he would soon be seeking new employment, the complainant contacted the society on April 22, 2000, to determine that his resume was up to date and available. (Nobili, 670-72; Ex. R-27)
46. The complainant had a job interview with one accounting firm in May 2000, and one with another in July. (Nobili, 512, 1581-82; Labelle, 1475-76; see R-27) The complainant, in his own words, "intensified [his] job search" in August. (Nobili, 204-05)
47. Although the complainant received performance bonuses every year through 1999 (see FF #7), he did not receive one in 2000. (Nobili, 39, 139)
48. The Felis company paid for the complainant's attendance at continuing education courses and the respondent likewise did so in October 1999. The respondent did not grant approval and funding for the complainant's attendance at a seminar on federal inheritance taxes in June 2000. (Nobili, 9-11,117, 153)
49. Throughout the first five months of 2000, communications between Purdy and the complainant declined, particularly throughout the summer. (Nobili, 162)
50. In August 2000, Purdy directed the complainant to complete weekly work-in-progress sheets. The complainant prepared these for several weeks and then stopped. (Nobili, 417-18; 536-42; Ex. C-23)
51. The other CPA, Wysowski, was a slow worker who, even more than the complainant, sometimes required extensions on tax return files. Like the complainant and others, Wysowski also made errors in his work. In the past, Wysowski also had to complete work-in-progress sheets, but he did not perceive them as punitive in nature. (Palsa, 326, 337; Wysowski, 715, 726, 765-67, 808)
52. On September 1, 2000, the respondent placed an advertisement on the Internet seeking to hire an accountant. (Ex. C-5; Purdy 697) An accountant named Paul Canter responded with a letter and his resume. Purdy spoke with him on the telephone and then met with him in late October. A few days before terminating the complainant, Purdy offered Canter a position. (Purdy, 692, 697-703; Ex. C-10)
53. By the fall, communication between Purdy and the complainant, whether related to work or to the complainant's health, had nearly ceased. (Nobili, 158)
54. Throughout September and October, problems continued with the complainant's work. The complainant advised Purdy that the personal property and income tax returns due on October 15, 2000 were essentially complete. But when Purdy took the returns from the complainant, he ended up spending a considerable amount of time correcting and completing them. (Purdy, 1159-63, 1261-62, 1348, 1417-18; see Exs. R-3, R-8, R-9, R-12, R-15. R-16, R-17)
55. The respondent terminated the complainant on November 6, 2000, telling him that the termination was due to the decline in the complainant's productivity. (Complaint, par. 15; Answer, par. 15; Purdy, 1092, 1261-62)
56. Canter did not appear to suffer from any respiratory problems. (Wysowski, 775) Canter was an inexperienced accountant who performed the same type of work as was done by the complainant. (Wysowski, 749, 774) Canter did not remain at the respondent company for long, leaving due to clashes with Purdy. (Wysowski, 752, 774-75)
DISCUSSION AND CONCLUSIONS
A. Disability discrimination
The complainant alleges that the respondent terminated his employment because of his physical disability-chronic sinusitis-in violation of the Connecticut Fair Employment Practices Act ("FEPA"), General Statutes § 46a-51 et seq. According to §46a-60(a)(1), it is a discriminatory employment practice
[F]or an employer, by himself or his agent, except in the case of a bona
fide occupational qualification or need, to . . . discharge from employment
any individual or to discriminate against him in compensation or in terms,
conditions or privileges of employment because of the individual's . . .
physical disability . . .
Although the claim is based solely on alleged violations of the state statute (see n.2), it is appropriate to "review federal precedent concerning employment discrimination for guidance in enforcing [Connecticut's] antidiscrimination statutes." Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996). In the absence of direct evidence of discriminatory motive, federal courts generally analyze claims brought under the ADA 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). Connecticut courts and this tribunal follow the same analysis. Levy v. Commission, supra, 107-08; Ann Howard's Apricots Restaurant v. Commission, 237 Conn. 209, 225 (1996); 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.).
Following this model, the complainant bears the initial burden of proving a prima facie case, which gives rise to a presumption of discrimination. The burden then shifts to the respondent to proffer (but not prove) a legitimate, non-discriminatory reason for the challenged action. Should the respondent meet its burden, the presumption disappears and the complainant must then prove that the proffered reason is actually pretext for unlawful discrimination. At all times, the complainant retains the ultimate burden of proving that the employment decision was motivated by discriminatory intent. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Levy v. Commission, supra, 236 Conn. 108.
To satisfy his prima facie case, the complainant must demonstrate (1) that he was disabled under the applicable statutes; (2) that the respondents were subject to the applicable statutes; (3) that he was qualified to perform the essential functions of the position with or without reasonable accommodation; and (4) that he suffered an adverse employment action because of his disability. Giordano v. City of New York, 274 F.3d 740, 747 (2nd Cir. 2001); Shaw v. Greenwich Anesthesiology Assocs., P.C., 137 F.Supp.2d, 48, 54 (D.Conn. 2001); Feathers v. Vivisection Investigation League, Inc., 2000 Conn. Super. LEXIS 2319. It is well recognized that the burden of proving the prima facie case is de minimus. Howley v. Town of Stratford, 217 F.3d 141, 150 (2nd Cir. 2000); Craine v. Trinity College, 259 Conn. 625, 638 (2002).
While Connecticut anti-discrimination statutes are, to a great extent, modeled on and interpreted in a way consistent with their federal counterparts, 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 of Women, 168 Conn. 26, 35 n.5 (1978); Commission on Human Rights and Opportunities ex rel. Grant v. Yale-New Haven Hospital, CHRO No. 9530477, p. 20 (October 13, 1999). 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 our approach on the subject"); Commission on Human Rights and Opportunities ex rel. Knowles v. Gilman Brothers, CHRO No. 9240221 (August 8, 1995), aff'd, Gilman Brothers v. Connecticut Commission on Human Rights and Opportunities, 1997 Conn. Super. LEXIS 1311 (no need to resort to ADA analysis where complainant clearly met state standard).
As a threshold requirement, the complainant must establish that he has a disability that is protected by statute. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154 (2nd Cir. 1998); Worthington v. City of New Haven, 1999 U.S. Dist. LEXIS 16104 *17 (D.Conn.) Here, where the language of General Statutes §46a-51 is markedly different from that of its federal counterpart, there is no need to look at the ADA definition of disability or at cases construing that definition. 7 See Shaw v. Greenwich Anesthesiology Associates, P.C., 137 F.Supp. 2d 48, 65 (D.Conn. 2001) ("[t]o be 'disabled' under Connecticut law is different from being 'disabled' under the ADA"); Christophe v. People's Bank, 2003 Conn. Super. LEXIS 1086 *14; Commission on Human Rights and Opportunities ex rel. Johnson v. Connecticut Department of Correction, CHRO No. 9740163, pp. 44-45 (Memorandum of Decision, March 9, 2000). Commission ex rel. Knowles v. Gilman Brothers, supra.
Under Connecticut law, a physically disabled person is "any individual who has any chronic physical handicap, infirmity or impairment, whether congenital, or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." General Statutes §46a-51(15). Similarly, General Statutes §1-1f defines an individual who is physically disabled as one "who has any chronic physical handicap or impairment, whether congenital or resulting from bodily injury, organic processes or changes from illness . . ."
Neither state statute defines the term "chronic," nor is the term used in the federal statutes. When left undefined, the words of a statute must be given their commonly approved meaning unless a contrary intent is clearly expressed. Carothers v. Capozziello, 215 Conn. 82, 129 (1990). Webster's Ninth New Collegiate Dictionary defines the term as "marked by long duration or frequent recurrence; not acute." Black's Law Dictionary (6th ed. 1990) similarly defines the term, when referring to diseases, to mean "of long duration, or characterized by slowly progressive symptoms; deep-seated and obstinate, or threatening a long continuance; distinguished from acute." See Gilman Brothers Co. v. Commission, supra, 1997 Conn. Super. 1311 *8-9. The condition need not be permanent in order to be deemed chronic. Caruso v. Siemens Business Systems, Inc., 2003 U.S. App. LEXIS 1211 (2nd Cir. 2003)
The medical records of the complainant's physician, Dr. Breda, explained and corroborated under oath by the doctor himself, demonstrate that the complainant suffers from recurrent, chronic sinusitis. Given the liberal definition under the state statute, I conclude that the complainant is disabled as a matter of law.
The respondent does not dispute the second criterion of the prima facie case-that it is subject to FEPA. General Statutes §46a-51(10) defines an employer as "any person or employer with three or more persons in his employ." The respondent acknowledges that it employs more than three persons. (See FF #3)
In some iterations of the prima facie case, the second element also includes the requirement that the respondent be aware of the complainant's disability. See, e.g., Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2nd Cir. 1998). Purdy, like everyone else in the office, was well-aware of the complainant's medical condition, his use of the nasal sprays displayed on his desk, and his aversion to the pervasive cigarette smoke. Although Purdy, in his unwillingness to look at documents prepared by Breda or to entertain discussions of possible solutions, may not have known the exact medical name of the condition, such information is not critical to the complainant's proof. See Equal Employment Opportunity Commission v. Blue Cross Blue Shield of Connecticut, 30 F.Supp.2d 296, 307 (D.Conn. 1998); Commission on Human Rights and Opportunities ex rel. Chilly v. Milford Automatics, CHRO No.9830459, p. 19 (Memorandum of Decision, October 3, 2000). I conclude that the complainant has satisfied the second criterion of his prima facie case.
To satisfy the third element of his prima facie case, the complainant must demonstrate that he is qualified to perform the essential functions of his 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 he "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); see Worthington v. City of New Haven, supra, 1999 U.S. Dist. LEXIS, 16104 *28. On this criterion, the federal and state analyses are consonant.
At the time of his termination, the complainant had been a certified public accountant for over a decade, with his requisite training and experience supplemented each year by continuing professional education seminars. The record amply demonstrates that the complainant, while his 2000 performance may not have met Purdy's expectations, satisfied the job requirements throughout his tenure with the respondent and its predecessor company. No personnel records or written evaluations suggest otherwise. His work was generally done adequately and on time, although, like all of the accountants, including Purdy himself, he would sometimes make mistakes and sometimes need extensions beyond established deadlines.
At all times pertinent hereto, the complainant was able to perform the essential functions --indeed, all functions 8-- of his job without the need for reasonable accommodations. Although he complains that his condition worsened in 1999, there is no evidence suggesting a need for accommodation. Even in 2000,
circumstances regarding his health had not changed so much--if they changed at all--as to warrant a need for accommodation. Thus, I find that the complainant is qualified without the need for reasonable accommodation.
To satisfy the final element of his prima facie case, the complainant must demonstrate that he suffered an adverse employment action because of his disability. The respondents do not challenge the legal conclusion that the complainant's termination is an adverse employment action. 9 See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2nd Cir. 2001); Munck v. New Haven Savings Bank, 251 F.Supp. 2d 1078, 1086 (D.Conn. 2003). The record, however, lacks any probative evidence that the respondent's decision to terminate the complainant was prompted in any way by his disability.
Although Purdy was aware of the complainant's medical condition, he never mentioned it to the complainant-or to anyone else-in the context of the events surrounding and leading up to the termination. And while Purdy may have shown little sympathy for the complainant's suffering, the complainant provided not one shred of probative evidence that Purdy was motivated by any discriminatory animus based on complainant's disability. On the contrary, the record shows that Purdy at least made some efforts--albeit half-hearted and unsuccessful--to ameliorate the complainant's symptoms.
Any comparison of the complainant's treatment with that of his colleague Wysowski, who suffered from no apparent medical condition, falls short of implying any discriminatory intent. Wysowksi, the only other long-term accountant, was a slower worker than the complainant and seemingly error prone with impunity. However, the similarities end there and the basis for comparison thus fails. His absences appear to be routine ones, not time consuming and not during critical work periods. More important, though, Wysowski, unlike the complainant, appears to be a "good soldier," deferential to and compliant with Purdy's wishes. Where others failed, Wysowski seems to have adapted comfortably to Purdy's style and Purdy to his, for they continue to work together.
Finally, although Purdy was a difficult manager, a poor communicator, and a seemingly insensitive man, he treated able-bodied employees no differently. The business was plagued with high turnover, and the record is replete with castigation, from many sources, of Purdy's managerial and personal communication skills.
Accordingly, I conclude that the complainant has failed to provide sufficient evidence, even under the minimal burden for his prima facie case, to show that he was terminated because of his disability.
Even if the complainant had established a prima facie case, with its low threshold of proof, the respondent articulated a legitimate, nondiscriminatory reason for terminating the complainant: a marked decline in the complainant's attitude and performance. But more than merely proffering this reason, which on its face satisfies the respondent's burden, the respondent also presented considerable testimony and evidence demonstrating the complainant's shortcomings in 2000.
As explained under oath by Purdy,
I would say that [the complainant] applied a lot less effort in tax season
of 2000 than he applied in the prior years. When I say, a lot less effort,
you know, he seemed to have I'll say less concern for completion of the
choices on taking days off in tax season for whatever reason. Historically,
you know, if you work in a public accounting firm it's important to just
get the hours in during tax season. There's a lot to do.
(Purdy, 1092) Purdy later testified that
. . . it started with say the period June through August with the Snead
matter. He really failed at assisting me on that job. When I turned the
corner and get in October the 1040 tax returned [sic] I was advised, you
know, all the returns he worked on were done, meaning, you know, he
may have one or two things open. There should have been a sheet of
paper in there, here's the one or two things. Not meaning, well, Dave
Purdy has to work 200 hours over two weeks to get all the returns filed.
Through the end of October all those personal property tax returns, that's
the same issue. I was advised those were done. Now, they're routine type
returns. If you follow the procedures I may have to make a couple of
changes, that's quick. I think that ended up being another event of me
working for weeks straight just to actually redo the returns Mr. Nobili had
worked on. His research efforts declined substantially from what they were before. He's done research for me at the old firm and quick answers are never what I look for. Usually if I had a question I would know a quick answer. I'm looking for technical research from a 15 year CPA. That seemed to be disappearing.
Over these deadlines, take the pension plan we just went through. It's
something due October 15th. He just seemed to have lost his care for the
clients. You know, what do they need? What has to be done? And he
just seemed to lack concern for all of that.
(Id. at 1261-62) Purdy further explained the notion of "decline in productivity" by testifying that "productivity can mean efforts that people apply to the work. It may mean putting some extra effort on a project at hand, maybe taking a different approach, coming up with ideas. An independent measure of productivity I think is hours, you know, that's related to direct efforts." (Id. at 1441)
The complainant himself acknowledges that he was working fewer hours than in prior tax seasons. He suggests that the diminished time was due to his health and he testified that he told this to Purdy, but the evidence clearly shows that, more often than not, his absences and early departures were due to situations involving college visits and family matters. In fact, the complainant knew Purdy was dissatisfied with his work (Nobili, 197) and the complainant was anticipating a job change as early as April 2000, as indicated by his job search and his passing comments to Labelle.
Precisely why the complainant was unsuccessful with specific files during the summer of 2000, and to what extent his communication problems with Purdy thwarted his success, ultimately need not be determined, although it is more likely than not that Purdy's unwillingness to commit to the complainant's future with the company was tantamount to rejection and may well have been the turning point. What matters is that in Purdy's subjective opinion, the complainant's work no longer met Purdy's standards.
Antidiscrimination law does not per se prohibit an employer from relying on his honest, subjective opinions. Byrnie v. Town of Cromwell, 243 F.3d 93, 104-05 (2nd Cir. 2001). It is not this tribunal's role to second guess an employer's business judgments, and it is important to focus on the employer's perception of the employee, and not the employee's evaluation of his own performance. See Langner v. The Stop & Shop Supermarket Company, Inc., 2000Conn. Super. LEXIS 216 *26-27; Selenke v. Medical Imaging of Colorado, 248 F.3d 1249 (10th Cir. 2001). Clearly, Purdy is in the best position to scrutinize the complainant's work. This fact, however, does not prevent my scrutiny of his credibility, as discussed below, as subjective decision making can be subject to abuse. See Byrnie v. Cromwell, supra, 105; Langner v. Stop & Shop, supra, 27.
Once the respondent has made the requisite showing, the presumption created by the prima facie case disappears, and the complainant bears the ultimate burden of proving, by a preponderance of the evidence, that the respondent intentionally discriminated against him. Reeves v. Sanderson, supra, 530 U.S. 143. To do this, the complainant may demonstrate that the respondent's proffered reason was not its true reason, but was pretext for discrimination. Id.; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-11 (1993).
Common sense suggests that the most likely justifications for terminating the complainant may well be, as Purdy explained, the complainant's declining work performance, his growing disaffection for the respondent, and his diminished attitude and commitment. These reasons, some (such as hours worked or deadlines missed) objectively measured, others subjectively perceived, would appear much more convincing on this record had Purdy testified credibly and consistently.
The complainant offered several reasons to doubt Purdy's testimony. First of all, Purdy failed to provide the complainant with any performance evaluations, written or oral warnings, or other indications that the complainant's performance was deficient or that his employment was in jeopardy. Second, Purdy's testimony is marked with inconsistencies, particularly between that provided for this record and that given to the commission investigator in 2001. (See Ex. C-33.) Third, Purdy's placement of the internet advertisement on September 1, 2000 undercuts his testimony that he did not decide to terminate the complainant until early November, much in the same way as his statement that Canter was not the complainant's replacement strains credulity. Certainly his ongoing criticism of the complainant's work in the fall, his timing of the termination to coincide with the slow tax season, and the job advertisement and his discussions with Cantor, suggest a methodical plan to minimize his own losses that is at odds with his own testimony about the complainant's deficiencies after September 1, 2000. Finally, the complainant was not the only employee to make personal telephone calls, use work time for personal business, and have errors and delays with their work, yet only he experienced repercussions.
The complainant clearly gives one pause to reflect upon Purdy's credibility, yet for all of the complainant's protestations, Purdy's painstakingly detailed testimony does, in fact, support the validity of the proffered reasons. But even if the complainant had convincingly shown that the respondent's proffered reasons should be rejected, he has not proven that they masked a discriminatory intent.
In 2000, the United States Supreme Court considered "whether a plaintiff's prima facie case of discrimination . . . combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination." Reeves v. Sanderson, supra, 530 U.S. 140. In the underlying case, the Fifth Circuit Court of Appeals held that, while the employee proved his prima facie case and showed that the employer's proffered reason was pretext, he introduced no additional, independent evidence of discrimination and thus failed to carry his burden. The appeals court ignored the evidence supporting the prima facie case and considered only the evidence offered subsequent to the employer's presentation. The Supreme Court reversed the lower court's decision, holding that "it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." (Emphasis added.) Id. at 147. See also Doe v. Board of Education of Fallsburgh Central School District, 63 Fed. Appx. 46, 49-50 (2nd Cir. 2003).
According to the Supreme Court,
Proof that the [employer's] explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose . . .. Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.
(Emphasis added.) Reeves v. Sanderson, supra 530 U.S. 147. "Evidence that an employer's reason is false, combined with the evidence presented to establish a prima facie case, in some cases, can be enough to sustain a plaintiff's burden, and a plaintiff need not have independent evidence of discrimination." (Emphasis added.) Richardson v. Metropolitan District Commission, 2003 U.S. Dist. LEXIS 12757 *14 (D.Conn. 2003), citing Reeves v. Sanderson, supra, 530 U.S. 147; see also Board of Education of the City of Norwalk v. Commission on Human Rights and Opportunities, 266 Conn. 492, 510 (2003); Craine v. Trinity College, 259 Conn. 625, 645 (2002).
As the underscored language in the preceding paragraphs reveals, proof that the respondent's proffered reason is false may, in some circumstances, suffice to satisfy the complainant's ultimate burden without the need for evidence of discrimination beyond that which satisfied the minimal threshold of the prima facie case. Conversely, however, a "factfinder's rejection of the employer's legitimate, nondiscriminatory reason . . . does not compel judgment for the plaintiff." (Emphasis in original.) Reeves v. Sanderson, supra, 530 U.S. 146. Situations will occur in which, "although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." Reeves, supra, 148. See also Craine v. Trinity College, supra, 259 Conn. 645.
Even if I ultimately were to disbelieve the respondent's proffered reasons, the overall evidence is insufficient to compel a finding of discriminatory intent. Reeves v. Sanderson, supra, 530 U.S. 133; Doe v. Board of Education, supra, 67 Fed. Appx. 50. I have already determined that the complainant did not make out his prima facie case, although I accepted it for sake of argument given the de minimus nature of the required proof. The showing of pretext, even if it were deemed successful, is likewise weak. Moreover, the overall evidence is not convincing enough to satisfy the complainant's ultimate burden of showing discriminatory intent under the guidelines of Reeves and its progeny.
Reasons having nothing to do with either an employee's protected class or the employer's proffered reasons may lie behind an adverse employment action. For example, "[i]ndividual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or personal hostility." Fisher v. Vassar College, 114 F.3d 1332, 1337 (2nd Cir. 1997) (en banc), cert. denied, 522 U.S. 1075 (1998); see also Hollander v. American Cyanamid Company, 172 F.3d 192, 201 (2nd Cir. 1999). As aptly stated by the Seventh Circuit Court of Appeals in a Title VII employment termination case,
The true reason for the action of which the [employee] is complaining might be something embarrassing to the employer, such as nepotism, personal friendship, the [employee's] being a perceived threat to his superior, a mistaken evaluation, the [employee's] being a whistle-blower, the employer's antipathy to irrelevant but not statutorily protected personal characteristics, a superior officer's desire to shift blame to a hapless subordinate . . . or even an invidious factor but not one outlawed by the statute under which the [employee] is suing; or the true reason might be unknown to the employer; or there might be no reason.
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997); see also Benzies v. Illinois Dept. of Mental Health, 810 F.2d 146, 148 (7th Cir. 1987) (a less seemly reason, such as a grudge, may actually account for the decision); Reed v. Commission on Human Rights and Opportunities, 1998 Conn. Super. LEXIS 2658 *15 (adverse actions against complainant were the result not of discrimination, but of personality conflict and poor work relations with supervisor). Even without rejecting the validity of the proffered defenses, I find these descriptions aptly fit the circumstances of this case.
The record convincingly portrays a work environment pervaded not just with cigarette smoke but with often-insurmountable communication problems. Employees came and went, unable to cope with Purdy's management style, in particular his lack of communication. Even those who remain recognize Purdy as a difficult manager, often at odds with his employees. Purdy's hostility, frustration and stubborn silence contributed to his divisive relationship with the complainant; this friction, in turn, far more likely underlies Purdy's decisions than any discriminatory animus relating to the complainant's sinusitis.
The fault does not lie with Purdy alone, for both contributed to the situation in turn. There is no reason why even a remotely-attentive employer would be oblivious to an employee's attitude change or declining performance, especially in a small office. And there can be no doubt that the complainant's attitude was worse than in prior years, as exemplified by his personal calls, his magazine reading and napping, his willingness to schedule personal business at critical tax times, and his own search for new employment. Observing the complainant's work in 2000, Purdy himself no doubt grew more frustrated and, true to his style, even less communicative. In short, Purdy's style affected the complainant's attitude and performance, while these, in turn, fueled Purdy's criticism and hostility. The complainant and Purdy were caught in a downward spiral leading toward the same inevitable fate suffered by so many others who worked for the respondent.
Despite all of Purdy's flaws-his weak communication skills, his lack of managerial abilities, his self-righteousness, perhaps even petty vindictiveness-I cannot on this record find that he was motivated by a discriminatory animus toward the complainant based upon the complainant's disability. Accordingly, I must dismiss this portion of the complaint.
B. Failure to provide reasonable accommodation
The complainant alleges that the respondent violated General Statutes §46a-60(a)(1) by refusing to provide reasonable accommodation for his medical condition. The respondent argues, inter alia, that the complainant is not entitled to accommodations under state law, that the complainant did not need accommodations and that, even if he did require accommodations, the respondent provided the necessary accommodation.
The respondent is correct that FEPA, unlike the ADA, does not explicitly require an employer to accommodate the disability of an employee. 10 Indeed, the Connecticut Supreme Court has expressly declined an opportunity to decide whether reasonable accommodation is implicitly required by FEPA. See Adriani v. Commission on Human Rights and Opportunities, 220 Conn. 307, 320 n.12 (1991). Nevertheless, since Adriani, lower courts and this tribunal have often recognized an employer's failure to provide reasonable accommodation as a form of employment discrimination actionable under FEPA.
The Connecticut anti-discrimination statutes are intended, at a minimum, to be coextensive with their federal counterparts. Wroblewski v. Lexington Gardens, Inc. 188 Conn. 44, 53 (1982). Furthermore, no statute should be construed in a manner that would thwart its purpose. Mystic Marine Life Aquarium v. Gill, 175 Conn. 483, 489 (1978). By way of example, in Silhouette Optical Ltd. v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. 599 (1994), the Superior Court upheld a hearing officer's finding that even under Connecticut law an employer had a duty to investigate a disabled employee's ability to perform her job with reasonable accommodation. Id. at 601. A year later, in Commission on Human Rights and Opportunities v. General Dynamics, 1995 Conn. Super. LEXIS 1318 *25, the court echoed this premise: "[T]he analysis in physical disability cases should be modified to include the concept of reasonable accommodation." More recently, the Superior Court emphatically stated that "failure to impose upon state actions so prominent a federal requirement as the duty to reasonably accommodate would vitiate the remedial purposes of the Connecticut anti-discrimination statutes." Trimachi v. Connecticut Workers Compensation Commission, 2000 Conn. Super. LEXIS 1548 *21-22; see also Ezikovich v. Commission on Human Rights and Opportunities, 57 Conn. App. 767, 774 (2000); Conte v. New Haven Board of Education, 2003 Conn. Super. LEXIS 1454 (recognizing claim under FEPA for failure to accommodate); Kalanquin v. Commission on Human Rights and Opportunities, 1998 Conn. Super. LEXIS 275.
Decisions by this tribunal have likewise have emphasized that under state law an employer has an implied duty to reasonably accommodate a disabled employee. See, e.g., Commission on Human Rights and Opportunities ex rel. Johnson v. Connecticut Department of Correction, CHRO No. 9740163 (March 9, 2000); Commission ex rel. Grant v. Yale-New Haven Hospital, supra, CHRO No. 9530477, pp. 25-26; Commission on Human Rights and Opportunities ex rel. Duarte v. United Technologies Corp., Hamilton Standard Division, Ruling on Motion to Dismiss, CHRO No. 9610553 (September 30, 1999).
I conclude that FEPA implicitly requires an employer, in appropriate circumstances, to provide reasonable accommodation to an employee who cannot perform his essential job duties without such accommodation.
Following the federal model for a "failure to accommodate" case, an employee must first demonstrate (1) that he was disabled within the meaning of the applicable statutes; (2) that his employer was covered by the applicable statutes and had notice of the employee's disability; (3) that he could perform the essential functions of the job with reasonable accommodation; and (4) that he employer failed to provide reasonable accommodation. Lovejoy-Wilson v. NOCO, supra, 263 F.3d 216, quoting Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2nd Cir. 1997). If the employee carries his burden, then the burden of persuasion shifts to the respondent who may defeat the employee's claim by demonstrating that the proposed accommodation is unreasonable or would pose undue hardship. Jackan v. New York State Department of Labor, 205 F.3d 562, 566 (2nd Cir. 2000); Borkowski v. Valley Central School District, 63 F.3d 131, 137-38 (2nd Cir. 1995); Worthington v. New Haven, supra, U.S. Dist. LEXIS 16104.
The first two elements of the prima facie case have been thoroughly addressed above and no reiteration is warranted here. The case falters, however, at the third element, satisfaction of which requires a showing "that an accommodation exists that permits [the complainant] to perform the job's essential functions." Borkowski v. Valley Central School District, supra, 63 F.3d 138.
The purpose of the reasonable accommodation requirement is to permit the disabled, but otherwise qualified, employee to perform the essential functions of his position and/or to enable him to enjoy equally the privileges available to non-disabled employees. See 29 C.F.R. 1630.2(o), app. 1630.9; Lovejoy-Wilson v. NOCO, supra, 263 F.3d 217; see also EEOC Technical Assistance Manual on the Employment Provisions of the Americans With Disabilities Act of 1990 (January 1992), §I-3.3. An otherwise qualified employee is one who is able to meet all of the job-related criteria of the position except for those he cannot meet because of his disability, but which he could meet with reasonable accommodation. Buckley v. Consolidated Edison, 155 F.3d 150 (2nd Cir. 1998). Stated another way, provision of accommodation to a disabled employee breaks down barriers and puts him "on an even playing field with the non-disabled." Felix v. New York City Transit Authority, 324 F.3d 102, 107 (2nd Cir. 2003). Here, the complainant's sinusitis posed no barrier to his job performance.
Breda, who might have been in the best position to assess the complainant's capabilities from a medical perspective, offered no evidence, either in his contemporaneous reports or in his testimony, that the complainant required accommodations in order to perform his essential job functions. Breda did not even know what the essential functions were, nor had he ever visited the complainant's work site. Lacking that information, he could, at best, merely conjecture whether the smoke impaired the complainant's ability to perform.
In fact, the complainant's sinusitis was not crippling, even when exacerbated by cigarette smoke. At most, the complainant suffered some discomfort, but not to the point where he was unable to perform his job. Indeed, he had no such problems in the Felis company, and lack of complaints in 1999 belie his suggestion that Purdy's move downstairs significantly aggravated the situation.
Even in 2000, his sinusitis was not a meaningful impediment to his performance. The complainant continued to log the requisite hours and was able to perform the essential functions of his job. There is no evidence that the number of the complainant's health-related absences was out of the ordinary. The few instances of deficient weekly hours were not, as the complainant would have one believe, all due to his smoke-aggravated condition; rather, they were due to choices the complainant made, at the inopportune peak of tax season, to visit colleges with his son or take care of his sister. The decline in work performance, as discussed in detail in Conclusion A, was not due to his sinusitis.
The record reveals that the complainant was able to perform the essential functions of his job without any accommodations, despite his infirmities. Failure to provide the complainant with the enclosed office did not materially hamper his ability to perform his job. The only logical conclusion one can draw is that the complainant had no need for accommodations while employed by the respondent, and thus the respondent had no duty to provide accommodations.
The complainant finally alleges that the respondent discharged him in retaliation for his requests for accommodation for his sinusitis. Specifically the complainant posits that after he complained about Purdy's cigarette smoke and asked if he could move into an enclosed office, the respondent began a series of retaliatory actions which culminated in termination. In addition to his termination, the complainant has identified additional retaliatory actions taken by the respondent, including: charging personal time out of the office to his vacation hours, failing to authorize attendance at a training seminar, being overly critical of his work, forcing him to complete work-in-progress sheets, docking a few hours of pay in April, denying a 2000 bonus, and denying the requested accommodation.
According to General Statutes §46a-60(a)(4), it is unlawful "[f]or any person [or]employer . . . to discharge, expel or otherwise discriminate against any person because he has opposed any discriminatory employment practice . . ." Unlike other subsections of §46a-60(a) which address only actions by employers, this subsection broadly includes "any person," and thus applies to Purdy himself.
The language of the state statute differs from its ADA counterpart in one critical way: it does not contemplate a request for reasonable accommodation as a protected activity. The ADA protects any individual who "has opposed any act or practice made unlawful by [the ADA] or . . . has made a charge [under the ADA]." 42 U.S.C. §12203(a). The ADA further provides that it is "unlawful to coerce, intimidate, threaten, or interfere with any individual . . . on account of his or her having . . . exercise[d] . . . any right granted or protected by the [ADA]." 42 U.S.C. §12203(b). Thus, in an ADA retaliation claim, requesting reasonable accommodation--indubitably a right guaranteed by the federal statute--would constitute a protected activity for the purpose of an ADA retaliation claim.
As discussed above, an employee's request for accommodation is not an activity protected by the literal language of §46a-60(a)(4), which protects employees who have opposed or filed a complaint about a discriminatory practice. However, because the state statutes are, at a minimum, meant to be as far reaching as their federal counterparts; Wroblewski v. Lexington Gardens, Inc., supra, 188 Conn. 53; a disabled employee's right to obtain reasonable accommodation under state law (see Conclusion B) should be protected by the concomitant right against retaliation for seeking such accommodation. In any event, neither party has suggested otherwise, so I will assume that they concede this point for the purposes of this proceeding.
Analysis of a retaliation claim under FEPA--like that under the ADA--follows the burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802-04. See, e.g., Treglia v. Town of Manlius, 313 F.3d 713, 719 (2nd Cir. 2002); Muller v. Costello, 187 F.3d 298, 311 (2nd Cir. 1999) (quoting Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2nd Cir. 1999). The complainant bears the initial burden of proving a prima facie case, which gives rise to a presumption of discriminatory retaliation. Once the complainant establishes his prima facie case, the burden of production shifts to the respondent to articulate a legitimate, non-discriminatory reason for the adverse action. Should the respondent carry this burden, the burden then returns to the complainant to prove that the articulated reason was a pretext for impermissible retaliation. Treglia v. Manlius, supra, 721; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768-69(2nd Cir. 1998); Gallagher v. Delaney, 139 F.3d 338, 349 (2nd Cir. 1998). The complainant retains at all times the ultimate burden of persuasion on the critical issue-whether the respondent intentionally retaliated against the complainant for engaging in a protected activity. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2nd Cir. 1993).
To establish his prima facie case of retaliation, the complainant must show (1) that he engaged in statutorily protected activity; (2) that the respondent was aware of the complainant's activity; (3) that he suffered an adverse employment action; and (4) that a causal connection existed between the protected activity and the adverse action. Treglia v. Manlius, supra, 313 F.3d ; Gordon v. New York City Board of Education, 232 F.3d 111, 113 (2nd Cir. 2000); Newtown v. Shell Oil Company, supra, 52 F.Supp.2d 373; Conte v. New Haven Board of Education, 2003 Conn. Super. LEXIS 1454 *16.
The complainant's burden of proof for his prima facie case is de minimus. Treglia v. Manlius, supra, 313 F.3d 719; Shaw v. Greenwich Anesthesiology, supra, 137 F.Supp. 2d 62; Ann Howard's Apricots v. Commission, supra, 237 Conn. 225. Moreover, the complainant need not establish that his failure-to-accommodate claim was or would have been successful, "so long as he can establish that he possessed a good faith, reasonable belief" that he was entitled to seeks and receive such assistance. See Treglia v. Manlius, supra, 313 F.3d 719, quoting Sarno v. Douglas Elliman-Gibbons & Ives, supra, 183 F.3d 159.
Although the complainant had not prevailed on his "failure to accommodate case," he is not precluded from bringing this retaliation claim.
To satisfy the first element of the prima facie case, the complainant must establish that he engaged in a protected activity. As discussed earlier, the complainant's good faith request for accommodation of his sinusitis satisfies this first criterion.
For the second element of his prima facie case, the complainant must show that the respondent was aware of his protected activity. As discussed in both Conclusion A and Conclusion B, the record contains ample evidence that the respondent knew of the complainant's disability and of his desire for reasonable accommodation.
To satisfy the third element of his prima facie case, the complainant must show that he suffered adverse employment actions. As noted in Conclusion A, termination of employment is an adverse employment action. See Lovejoy-Wilson v. NOCO, supra, 263 F.3d 223; Munck v. New Haven Savings Bank, supra, 251 F.Supp.1086. Some of the other actions he endured between January and the time of his termination may also be considered adverse employment actions under the law, provided they are "materially adverse change[s] in the terms, privileges, duration and conditions of employment." Treglia v. Manlius, supra, 313 F.3d 720; see Lovejoy-Wilson, supra, 223-24 (other recognized adverse employment actions may include, but are not limited to, refusal to promote, reduction in pay, and loss of the use of wages for a time; adverse employment actions are not limited to pecuniary emoluments); Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2nd Cir. 2000) (actions less flagrant than termination may include material loss of benefits or "other indices
. . . unique to a particular situation").
The alleged adverse actions must be more than mere inconvenience; Galabya v. Board of Education, supra, 202 F.3d 640; and "[a]n adverse action is not every action that the employee dislikes or disagrees with. Rather a reasonable person must view the decision as adverse." Leson v. ARI of Connecticut, Inc., 51 F.Supp.2d 135, 142 (D.Conn. 1999). At the outset, I conclude that the respondent's failure to send the complainant to a seminar in June was likely due to an oversight; even if it was motivated by anger or frustration, it does not rise to the level of an adverse action as a matter of law.
To satisfy the critical fourth prong of his prima facie case, the complainant must demonstrate a causal connection between the protected expression and the respondent's decision to terminate him. The Second Circuit Court of Appeals has "consistently held that proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus . . ." Gordon v. Board of Education, supra, 232 F.3d 117 (citations omitted). As to the latter approach, the record is devoid of any statements or actions that would directly evince any retaliatory intent.
Close temporal proximity between the protected expression and the adverse action has often justified an inference of causality. Treglia v. Manlius, supra, 313 F.3d 729; Lovejoy-Wilson v. NOCO, supra, 263 F.3d 224. There exists, however, no "bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship . . ." Lovejoy-Wilson v. NOCO, supra, quoting Gorman-Bakos v. Cornell, 252 F.3d 545, 554 (2nd Cir. 2001); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2nd Cir. 1995)(plaintiff terminated a few weeks after mentioning that she was considering legal action); Quinn v. Green Tree, supra, 159 F.3d 769 (causal connection established when plaintiff discharged less than two months after filing an internal complaint and ten days after filing complaint with state department of human rights); Reed v. A.W. Lawrence & Co., Inc. 95 F.3d 1170, 1178 (2nd Cir. 1996)(causal connection shown by, among other things, evidence of twelve-day span between initial complaint and termination); Newtown v. Shell Oil Co., supra, 52 F.Supp. 2d 374 (one month between plaintiff's complaint of sexual harassment and a poor performance rating established causal connection).
Any temporal link between the complainant's requests for accommodation in January and his termination ten months later appears, by itself, to be too attenuated. However, recognition of the intervening incidents gives pause to reassess. First, the respondent's decision was, for all intents and purposes, not just implemented in November, but seriously contemplated before the September 1 internet advertisement for an accountant.
Furthermore, even this seven- or eight-month gap is bridged by a series of intervening actions including the alleged adverse employment actions themselves, along with Purdy's continuous rejection of the complainant's attempts to discuss work and health issues. Treglia v. Manlius, supra, 313 F.3d 720-21. Looking comprehensively at all that transpired from January to November, it becomes clear that there is a connection among all of these events, a connection grounded in the basic incompatibility between Purdy and the complainant. Without determining conclusively that the complainant's discharge and other adverse actions were actually motivated by retaliation, sufficient evidence exists to allow me to find a causal nexus for the purposes of the minimal-burden prima facie case.
After the complainant has satisfied his prima facie case, the burden shifts to the respondent to articulate a legitimate, non-retaliatory rationale for the complainant's termination. Treglia v. Manlius, supra, 313 F.3d 721. In light of the evidence presented, the respondent has met its burden, proffering a detailed explanation of the complainant's declining productivity and changed attitude. (See Conclusion A.) Accordingly, the ultimate burden returns to the complainant to prove that the proffered reasons were pretext for impermissible retaliation.
As discussed in Conclusion A, the complainant provided a handful of reasons why Purdy's proffered reasons are not credible. Nonetheless, my prior evaluation of the complainant's argument, of the thorough record support of Purdy's reasons, and of the likelihood of other non-discriminatory factors coming into play, all lead me to conclude that, even if Purdy's justification was suspect, none of the adverse employment actions11 was motivated by unlawful retaliation. The complainant's final claim, therefore, must fail.
FINAL DECISION AND ORDER
In light of the foregoing, I find in favor of the respondents on each claim.
Accordingly, the complaint is hereby dismissed.
David S. Knishkowy
Human Rights Referee
Copies sent to all parties of
record on this day.
1 The documents referred to in the procedural background were not offered or admitted as exhibits. Nevertheless, they are part of the official file maintained by the Office of Public Hearings and thus are part of the record of this case. (See General Statutes §4-177(d)
2 Initially, the case was also based on alleged violations of the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. 12101 et seq. The ADA claim was abandoned at an early stage, as all parties acknowledged that the respondent, which employs fewer than fifteen individuals, was not subject to the ADA. (See the complaint, par. 3; respondent's answer, par. 3.)
3 Record references to the transcript include the name of the witness and the page numbers.
4 Exhibits jointly submitted by the complainant and commission are identified with the prefix "C." Those submitted by the respondents bear the prefix "R."
5 The complainant refers to Breda, in lay terms, as a specialist in matters involving the ears, nose and throat. (Nobili, 45)
6 Purdy testified that the old office was too full and it would be difficult to clean out. He also testified that he did not want to confer on the complainant what others might perceive as elevated status. It is not clear whether he shared these concerns with the complainant at the time. See Exs. C-33, R-28. Purdy also testified that when he offered the complainant the use of the kitchen he thought the complainant only wanted an alternate location for that particular day. (Purdy, 1335-36)
7 According to the ADA, the term "disability" refers to "(a) A physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (b) a record of such impairment, or (c) being regarded as having such an impairment. 42 U.S.C. §12102(2); Sutton v. United Air Lines, Inc. 527 U.S. 471, 478 (1999); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2nd Cir. 1996). (Significantly, FEPA, unlike the ADA, does not require the complainant to prove that he is substantially limited in a major life activity.)
8 Essential job functions are "the fundamental job duties of the employment position the individual with a disability holds or desires." To be considered essential, the job functions must bear more than a marginal relationship to the job at issue. 29 C.F.R. §1630.2(n)(1); Mitchell v. Washingtonville Central School District, 190 F.3d 1, 8 (2nd Cir. 1999). Curiously, the complainant never specifically enumerates the essential functions of his position. Instead, he merely refers to them as "normal tax related duties" (Commission's Proposed Findings of Fact #6) and as "performing accounting tasks" for a wide range of clients. (Commission's Brief, p. 30).
9 The complainant points to other, smaller scale adverse actions; these are addressed in Conclusion C. Likewise, the denial of reasonable accommodation may be an adverse action; that is addressed in Conclusion B.
10 According to the ADA, discrimination includes "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. §12112(b)
11 The loss of a 2000 bonus is the only adverse action, other than termination, for which the complainant seeks compensation. The record reveals that the granting of bonuses is well within the respondent's discretion; under the circumstances of this case, I see no abuse of that discretion. Likewise, charging the complainant for two days' vacation time when he took his son to visit colleges is perfectly reasonable. (It is worth noting that the complainant did not suffer any salary loss for this.) While the complainant did manage to log the minimal forty hours those weeks, his time commitment should have been far greater during the peak of tax preparation season.
Commission on Human Rights and Opportunities
21 Grand Street
Hartford, CT 06106
Michael S. Agress, Esquire
Commission on Human Rights and Opportunities
21 Grand Street
Hartford, CT 06106
Thomas J. Nobili
20 Pumpkin Hill Road
Trumbull, CT 06611
David E. Purdy & Company, LLC,
and David Purdy, individually
41 Unquowa Place
Fairfield, CT 06430
Angela M. Offredi, Esquire
Parrett, Porto, Parese & Colwell
One Hamden Center
2319 Whitney Avenue
Hamden, CT 06518