Saksena v. CT,Dep't of Revenue Services, Memo of Decision
CHRO No. 9940089
Commission on Human Rights
and Opportunities ex rel.
Sharad Saksena, Complainant
v.
State of Connecticut,
Department of Revenue Services, Respondent
August 9, 2001
MEMORANDUM OF DECISION
PROCEDURAL BACKGROUND
On August 31, 1998, Sharad Saksena ("the complainant") filed an Affidavit of Illegal Discriminatory Practice ("the complaint") with the Commission on Human Rights and Opportunities ("the commission"), alleging that the Connecticut Department of Revenue Services
("the respondent" or "DRS") failed to provide reasonable accommodation, and thus caused him to resign, in violation of General Statutes § 46a-60(a)(1) and the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. §§12101 et seq., as protected by General Statutes §46a-58(a). (Exhibit ["Ex."] C-1)1 The complainant now seeks reinstatement to his previous position and monetary damages for lost wages.
The commission investigated the charges of the complaint, found reasonable cause to believe that a discriminatory practice had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified to public hearing on January 21, 2000, 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 January 31, 2000, in accordance with General Statutes §46a-84(b) and
§46a-54-90 of the Regulations of Connecticut State Agencies ("the
regulations").2
I conducted a public hearing on February 8, February 13 and March 20, 2001.3 Thereafter, the parties filed post-hearing briefs and reply briefs, and the record closed on June 1, 2001.
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.
FINDINGS OF FACT
1. The respondent, the Department of Revenue Services, is a department within the executive branch of Connecticut state government. (General Statutes §4-38c, §12-1a)4
2. Before working for the respondent, the complainant obtained a B.A. degree in business and worked for eleven years in a large petroleum company in India. Upon immigrating to the United States, he was employed by Connecticut Natural Gas for several months while he pursued (but did not complete) a Master’s Degree in taxation. (Testimony of ["Test."] Saksena, Transcript, [hereinafter omitted] 45-48, 51-52)
3. The respondent hired the complainant as a career trainee in January 1988. (Test. Saksena, 10, 45, 51; Exhibit ["Ex."] C-30)
4. In January 1990, the complainant was promoted to Revenue Examiner-1 in the respondent’s excise field unit. His primary job duties were to conduct field audits of certain taxpayers throughout the state, including but not limited to petroleum distributors and refiners, oil companies, and gas stations, and to prepare written evaluations and recommendations. (Test. Saksena, 10-12, 14, 48; McKellar, 98; Ex. C-30)5
5. While the complainant was a Revenue Examiner-1 (as well as in his subsequent positions), his immediate supervisor was Edward Lyons, a Revenue Examiner-4. (Test. Saksena, 13; Lyons, 235) Lyons, in turn, reported to William McKellar, a tax unit manager for the excise field unit. Both reviewed the complainant’s audits. (Test. Saksena, 13; McKellar, 106, 111) However, the complainant usually dealt directly with McKellar and the two occasionally had a strained relationship. (Test. Saksena, 22, 57-59)
6. In December 1991, the complainant became an Interstate Revenue Examiner (still in the excise field unit), with an increased salary comparable to that of a Revenue Examiner-5. His duties were basically the same as those of his prior position, except that he audited mostly out-of-state taxpayers, which usually required two consecutive weeks away from the office each month. (Test. Saksena, 12-13, 54, 59)
7. In 1992 or 1993, the complainant began to suffer from minor depression and sought treatment from Dr. Harvey Hameroff, his primary physician. After Hameroff placed the complainant on antidepressant medication, the complainant’s condition stabilized and he was able to continue to work. (Test. Saksena, 15-16, 21, 56; Exs. C-1, C-2)
8. In 1997, the complainant’s depression returned due to the stress of constant travel and from being apart from his family. In August 1997, he voluntarily resumed his position as Revenue Examiner-1, with a concomitant decrease in salary. (Test. Saksena, 16-17, 59-60; Exs. C-30, R-4)
9. The complainant’s relationship with McKellar deteriorated around that time. Consequently, his depression worsened, affecting his ability to work, sleep, and engage with his family. (Test. Saksena, 17-18, 27, 60 ff.)
10. In February 1998, the complainant was promoted to Revenue Examiner-2. His duties were essentially the same as those of a Revenue Examiner-1. (Test. Saksena, 13; Exs. C-4, C-29, C-30)
11. Revenue examiners conducted audits at the taxpayers’ places of business. Before setting out on an audit (or series of audits) a revenue examiner would extensively prepare, relying upon information available in office files or in the DRS data bases. The revenue examiner would, among other things, review the audit history of the taxpayer, verify claims of exempt sales, and cross-reference the taxpayer’s tax returns with those of others doing business with the audited taxpayer. (Test. Saksena, 26-27, 64-66; McKellar, 101-02, 109; Lyons, 236-37) Preparation for an audit might take several hours or several days, depending on the taxpayer being audited. Sometime, preparation could even take a week or more. (Test. McKellar, 118)
12. Typically, the complainant, like other revenue examiners, would take his laptop computer and necessary files home—or to his hotel room, if he was out of state—at night before going to an audit the next morning. (Test. Saksena, 14-15, 21, 25-27, 81 ff.; Lyons, 245 ff.) Revenue examiners had an obligation to keep all information secure and confidential. (Test. Lyons, 246)
13. The complainant would often review his files or perform other work at night and on the weekends while at home or in his hotel room. This work was done on his own time, not for additional compensation. (Test. Saksena, 21, 54-55; McKellar, 121-22)
14. If a revenue examiner encountered unanticipated issues during an audit, he could resolve some smaller matters on the telephone or obtain additional documents from the office via facsimile transmittals. He could not, however, access the DRS data bases from other computers. For more significant matters (e.g., if a revenue examiner needed to see the tax returns of the audited taxpayer’s vendors), he would have to return to the office to research information in office files or data banks. If the revenue examiner was traveling out of state, he would obtain this information upon his return to the office. (Test. Saksena, Tr. 65-66, 83; McKellar, 103, 128; Lyons, 248, 250-51)
15. Upon completion of the meetings with a taxpayer, a revenue examiner would return to the office to conclude the audit, which might require numerous telephone calls to the taxpayer, additional information from the taxpayer, and more research in DRS files or data bases. (Test. Lyons, 236).
16. After an audit is completed, the taxpayer may request an informal conference with the DRS. The revenue examiner’s supervisor and the tax unit manager would generally attend such conference; occasionally, the revenue examiner himself would be involved. (Test. McKellar, 103-04) In all of his years of service, the complainant never attended and was never asked to attend a single post-audit conference. (Test. Saksena, 261)
17. At one point in February or March 1998, while the complainant was out of the office, a colleague telephoned him to say that McKellar was in the process of going through the complainant’s office. Although McKellar was actually looking for certain taxpayer files that required immediate attention, at the time neither the colleague nor the complainant knew why McKellar was there, and the complainant was offended and upset by the apparent invasion of his private office and personal effects. This incident exacerbated the complainant’s depression and his discomfort working with McKellar. (Test. Saksena, 18-20; McKellar, 112-115)
18. From March 9 through March 23, 1998, the complainant was on medical leave due to emotional stress. (Exs. C-8, R-4)
19. On March 20, 1998, Dr. Hameroff prepared a "certification of health care provider," 6 indicating, among other things, that, due to work stress and depression, the complainant was taking antidepressants and needed to reduce his work time to three hours per day for approximately two months. (Ex. C-10) Hameroff considered the complainant’s condition to be "a chronic condition requiring treatment," which the certification form defines as "A chronic condition which: (1) Requires periodic visits for treatment by a health care provider . . . ; (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity."
20. On March 23, 1998, the complainant sent Hameroff’s certification via facsimile transmittal to Helen Roy, a principal personnel officer at DRS, whose duties included processing requests for leaves of absence. (Exs. C-21, C-22, R-4; Test. Roy, 155) The complainant indicated in a cover letter that he would return to work the following day in accordance with his doctor’s recommendations. (Ex. C-9) Upon receipt of the certification, Roy began to prepare the appropriate paperwork to put the complainant on a two-month, part-time leave under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§2601 et seq. (Test. Roy, 168-69; Exs. C-22, R-4)
21. On March 24, 1998, the complainant returned from his medical leave and
met with Helen Roy and Rosemary Cleary
22. After Roy or Cleary informed McKellar of their decision, McKellar had no
further contact with the complainant other than perfunctory exchanges of
greetings in passing. (Test. McKellar, 111) 23. On or about Thursday, March 26, 1998, the complainant called Roy to say
that he would be absent from work that day because he had a bad headache. (Test.
Roy, 165-66; Ex. C-21) The complainant was also absent the following day, but he
did not call the respondent. (Ex. C-21) Thereafter, the complainant did not return to work. 24. On March 30, 1998, the complainant was evaluated by a psychiatrist,
Richard Berkley, who, among other things, placed him on stronger medication.
(Test. Saksena, 17-18, 40-46, 61; Ex. C-12) 25. On or about March 30, 1998 (probably just before or after his
consultation with Berkley), the complainant telephoned Roy and asked her if he
could work on a file at home. Roy told him that he should ask his supervisor.
(Test. Saksena, 24; Roy, 165-67, 172) Later Roy discussed the complainant’s
request with Anne Alling, the DRS human resources administrator. (Test. Roy,
166-67; Alling, 185, 190)
26. The complainant also telephoned Lyons and asked Lyons to bring him a file
to work on at home.8 Lyons, who claims he did not know if employees were allowed
to work at home, told the complainant that he "would run it through the
chain of command" and get back to him. (Test. Lyons, 240; Saksena, 267) 27. Lyons reported the complainant’s request to McKellar, who in turn spoke
with Cleary. Cleary briefly discussed the request with Roy and left a message for her
supervisor, Hans Spalter; about a week later, she spoke with Alling. (Test.
Cleary, 140, 143, 146; Ex. C-22) 28. By the end of March, the complainant’s supervisors were aware that the
complainant was suffering from some sort of mental disorder. When the
complainant called in sick in late March, and spoke with Lyons, Lyons discerned
that the complainant was suffering from "emotional or mental
problems." (Test. Lyons, 244) McKellar likewise was aware of the
complainant’s health issues; when he had spoken to the complainant by
telephone on March 17, 1997, the complainant told him that he was depressed and
taking medication. (Ex. C-22) 29. On April 1, 1998, Berkley sent Roy a letter via facsimile transmittal in
which he stated, Sharad Saksena will be unable to assume his full work responsibilities for
approximately four weeks because of medical problems. I have advised him
against going into his office but agree that he can perform work from his home or in the field. (Ex. C-11)9 30. After Roy received Berkley’s letter, she prepared the paperwork needed
to put the complainant on full time leave under the FMLA until May 1, 1998.
(Test. Roy, 163, 169, 179; Ex. R-4) 31. The respondent has a written policy explaining how an employee should
request accommodation for a disability. (Test. Roy, 164; Ex. R-9) This policy
was disseminated by mail in May of each year, including 1997, to all DRS
employees and posted permanently on bulletin boards located on each floor of the
DRS building. (Test. Alling, 188-90, 206) According to the policy, an employee
must initially make a written request to the respondent’s Affirmative Action
Administrator or to Alling, and must support the request with, among other
things, medical documentation. (Ex. R-9). 32. The complainant did not submit his request to work at home in writing.
(Test. Saksena, 27) 33. After Alling saw the April 1, 1998 letter from Berkley, she discussed the
complainant’s request with chief of staff Joseph Mooney. Both Alling and
Mooney recognized that numerous issues would come into play (e.g., file
confidentiality and security, supervision, workers’ compensation, travel
reimbursement, lack of a telecommuting policy, precedent-setting, and union
contractual issues), but they did not consider in depth these issues or
resolution thereof. Because they understood the complainant’s request to be
for immediate and short-term action while he was on FMLA leave, they believed
that there was insufficient time to investigate the pertinent issues and develop
and implement an appropriate protocol, and they agreed that honoring the
complainant’s request was infeasible. (Test. Alling, 190-91, 209-11)
Thereafter, Alling rejected the request in a letter dated April 8, 1998. (Test.
Alling, 208; Ex. C-13) According to Alling’s letter, "There is no
provision in the A&R bargaining unit contract for ‘telecommuting.’
Therefore, [DRS] has no authority to approve such a request." (Ex. C-13) 34. The collective bargaining agreement in effect at that time states,
"Notwithstanding any provision of this Agreement to the contrary, the
Employer will have the right and duty to take all actions necessary to comply
with the provision [sic] of the Americans with Disabilities Act . . ." (Ex.
C-32, Art. 5, sec. 4) 35. Although the Connecticut Department of Administrative Services
("DAS") had promulgated guidelines for state agencies that wanted to
provide "telecommuting"10 opportunities to employees (Ex. R-10), the
respondent had not developed its own policy. (Test. Alling, Tr. 186) 36. None of the respondent’s employees had ever worked at home. (Test.
McKellar, 132; Lyons, 241) As of late 1997, approximately seven employees
throughout state government were "telecommuting," all on a part time
basis. (Test. Alling, 187) 37. After his request to perform work at home was denied in writing, the
complainant decided to resign and submitted a letter of resignation to the
respondent on or about April 16, 1998, effective at the end of that month.11
(Test. Saksena, 30, 40; Ex. C-14; see also Exs. C-15 and C-16) 38. On or about April 15, 1998, Berkley prepared (and eventually mailed to
the respondent) a medical certificate documenting the complainant’s condition
as observed in his March 30 evaluation. (Ex. R-12) (Based on the date-stamp on
the document, the respondent apparently received this on or about May 4, 1998
(Ex. R-12).) As indicated in the document, the complainant suffered from
conditions identified simply as "296.23" and "300.02." These
numbers refer to mental disorders described in the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th
ed. ("DSM-IV")12. According to DSM-IV, the first three digits, 296,
comprise a diagnostic code for major depressive disorders; the fourth digit, 2,
refers to a single episode; and the fifth digit, 3, indicates "severe,
[but] without psychotic features." (DSM-IV, pp. 319, 339-44) The diagnostic
300.02 refers to generalized anxiety disorder that is characterized by at least
six months of persistent and excessive anxiety and worry. (Id. at 393, 432-36) 39. With the use of medication, the complainant’s condition stabilized by
June 1998. Sometime that month, he informed the respondent by telephone that he
would like to rescind his resignation and return to work as a Revenue
Examiner-2. He had received approval from his doctor and was confident that he
could perform his job duties and even report once more to McKellar. (Test.
Saksena, 31-34, 70-73) 40. An employee rescinding his resignation in a timely fashion was (and is)
eligible to have his name placed on a re-employment list for positions in which
he had attained permanent status. (Test. Roy, 176; Ex. C-17; see General
Statutes §5-248(f)) At the time of his resignation, the complainant had
attained permanent status as a Career Trainee, a Revenue Examiner-1, and an
Interstate Revenue Examiner. (Ex. C-17) He had not attained permanent status as
a Revenue Examiner-2 because he had not completed the four-month working test
period required under the collective bargaining agreement. (Exs. C-5, C-19; see
Ex. 32, Art. 9, sec. 2(b)) 41. Alling initially told the complainant that there were no positions available for him. The complainant checked back periodically between June and September, but was
told by Alling that the only vacancies were for career trainee positions, which
were comparable to what the respondent had done ten years earlier and which
would have involved a substantial financial setback for the complainant. (Test. Saksena, 33-35, 73-74; Alling, 192, 196;
Exs. C-25, C-26, C-27) The complainant had no interest in career trainee positions. (Test.
Saksena, 35, 264-65) 42. On October 1, 1998, upon Roy’s recommendation, the complainant sent a
letter to the respondent formally rescinding his resignation and asking to be
reinstated. (Test. Saksena, 33-34; Ex. C-18) 43. In her October 16, 1998 written response to the complainant’s letter,
Alling reiterated that career trainee positions were available. She also
informed the complainant that Revenue Examiner-1 positions, for which the
complainant was eligible without examination, would open in the spring of 1999.
(Ex. C-19) She sent him an application but the complainant never filed it.
(Test. Alling, 192-94) 44. If the complainant had come back in a career training position, he would
be eligible for a promotion to Revenue Examiner-1 after 6 months and then to
Revenue Examiner-2 six months thereafter. (Test. Alling, 195-96) 45. The complainant’s Revenue Examiner-2 position was not filled after the
complainant resigned and it had not been refilled as of the first day of the
public hearing. After the complainant’s resignation, his work was
redistributed among existing staff and his position reclassified to the career
trainee level. (Test. Lyons, 249; Cleary, 145; Alling, 194; Ex. C-24) 46. The respondent hired two individuals as Revenue Examiners 1 in the spring
of 1999. (Test. Cleary, 148; Alling, Tr. 192-93) 47. During the summer of 1998, the complainant unsuccessfully sought other
employment and sent resumes to various potential employers. (Test. Saksena, 40-41) In
October 1998, he gave up his attempts to return to DRS or to seek alternative
employment and became a partner in a small business started by his wife. (Test.
Saksena, 35-37, 74-75, 80) 48. During the course of his career with DRS, the complainant received annual
service ratings, which generally assessed his performance as
"excellent" or "superior" in an array of categories. (Ex.
C-5). His personnel file contained at least two letters of commendation from
companies he audited, as well as a "customer service questionnaire"
bearing praise for his work. (Ex. C-6)
DISCUSSION AND CONCLUSIONS A. Pertinent statutes
The complainant alleges that the respondent’s failure to provide him with
reasonable accommodation constitutes unlawful discrimination on the basis of his
disability in violation of the ADA and the Connecticut Fair Employment Practices
Act ("FEPA"). The ADA prohibits covered employers from discriminating
against an otherwise qualified individual "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). The ADA explicitly allows a cause of action for failure to provide
reasonable accommodation. According to the ADA, unlawful discrimination
includes: not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an
applicant or 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)(5)(A). A "qualified individual" with a disability is an individual who,
"with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires." 42 U.S.C. §12111(8). According to FEPA, it is a discriminatory practice [f]or an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, . . . to discriminate against [an
individual]. . . in terms, conditions, or privileges of employment because of the individual’s . . . present or past history of mental disorder. . . General Statutes §46a-60(a)(1). FEPA contains no definition of "mental
disorder" or comparable terms. B. Liability under the ADA
The United States Supreme Court recently held that an individual could not
sue a state for monetary damages under Title I of the ADA, because the ADA did
not nullify the immunity to which states are entitled under the Eleventh
Amendment of the United States Constitution. Board of Trustees of the
University of Alabama v. Garrett, 121 S.Ct. 955 (2001), 2001 WL 167628 *11
and n.9; see also Mincewicz v. Parker, 2001 WL 256162 *3 (D.Conn.)(ADA
claim against superior court judges, in their official capacity, dismissed
pursuant to Garrett); Infante v. Thomas, 7 Conn. Ops. 797, 798 n.1
(July 16, 2001)(ADA claim against state agency dismissed pursuant to Garrett)
; Commission on Human Rights and Opportunities ex rel. Charette v. State of
Connecticut, Department of Social Services, CHRO Nos. 9810371 and 9810581,
p. 43 (April 26, 2001) (ADA claim against state agency dismissed pursuant to Garrett).13
In the present case, the complainant’s claims are directed solely against the
Department of Revenue Services, a Connecticut state agency. In light of Garrett,
the ADA claim is hereby dismissed. C. Liability under state law Unlike the ADA, FEPA does not, on its face, require an employer to provide
accommodation, reasonable or otherwise, to a disabled employee, and the
Connecticut Supreme Court has expressly declined an opportunity to decide
whether reasonable accommodation is implicitly required by FEPA. 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.14 The Connecticut anti-discrimination statutes are intended to be, at a
minimum, 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). Thus, 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.
Subsequently, 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 WL 872451 *7 (Conn. Super.); see also Ezikovich
v. Commission on Human Rights and Opportunities, 57 Conn. App. 767, 774
(2000); Kalanquin v. Commission on Human Rights and Opportunities, 1998
WL 57767. Decisions by this tribunal have also concluded that under state law an
employer has a duty to reasonably accommodate a disabled employee. In Frederick
v. Bridgeport Hospital, CHRO No. 8720151 (October 16, 1992), the hearing
officer unequivocally stated, Implicit in Connecticut’s prohibition against discrimination, based on
physical or mental hardship, is a duty of reasonable accommodation. Without
such implication, the protections of the statute would be largely
meaningless. By the very nature of the classification, otherwise qualified
disabled persons may require some sort of an accommodation in order to work. See also Commission on Human Rights and Opportunities ex rel. Grant v.
Yale-New Haven Hospital, CHRO No. 9530422, p. 25-26 (October 13, 1999); 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); Commission on Human Rights and Opportunities ex rel.
Jackson v. United Technologies Corp., Pratt & Whitney Aircraft Group,
CHRO No. 8440112 (January 12, 1993); Commission on Human Rights and
Opportunities ex rel. LaRoche v. United Technologies Corp., Pratt & Whitney
Aircraft Group, CHRO No. FEP-PD-1 (August 28, 1978)("A reading of the
statute which imposes upon employers an obligation to take reasonable steps to
accommodate the needs of the physically disabled has merit.") Courts in other jurisdictions likewise have inferred a duty of reasonable
accommodation, despite the absence of explicit language in the applicable state
statutes. See, e.g., Gaul v. AT&T, Inc., 955 F.Supp. 346, 352 (D. New
Jersey 1997); Austin State Hospital v. Kitchen, 903 S.W.2d 83, 87 (Tex.
App. 1995); Martinell v. Montana Power Co., 268 Mont. 292, 311-12 (1994);
Jenks v. Avco Corp. 340 Pa. Super., 542, 548-50 (1985). I conclude that
FEPA requires an employer, in appropriate circumstances, to provide reasonable
accommodation to an employee who cannot perform his essential job duties without
such accommodation. Even though the complainant’s ADA claim is dismissed pursuant to Garrett,
federal precedent concerning the ADA still provides, with one notable exception
discussed within, appropriate guidance for interpretation of the comparable
state statutes. Levy v. Commission on Human Rights and Opportunities, 236
Conn. 96, 103 (1996); Ezikovich v. Commission, supra, 57 Conn. App. 774.
Under both federal and state law, in a "failure to accommodate" case,
an employee must first make out a prima facie case by demonstrating that: (1) he
was disabled within the meaning of the applicable statutes; (2) his employer was
covered by the applicable statutes; (3) with reasonable accommodation he could
perform the essential functions of the job; and (4) the employer had notice of
the employee’s disability and failed to provide reasonable accommodation. Gronne
v. Apple Bank for Savings, 2001 WL 30647 *2 (2nd Cir. 2001); Parker
v. Columbia Pictures Industries, 204 F.3d 326, 332 (2nd Cir.
2000); Colter v. Yale University, 2000 WL 559023 *2 (D.Conn. 2000); Ezikovich
v. Commission, supra, 57 Conn. App. 774; Commission ex rel. Charette v.
Department of Social Services, supra, CHRO Nos. 9810371 and 9810581,
p. 44. 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. City of New Haven, 1999
WL 958627 *11-12 (D.Conn.). I need not discuss the second element, which is
uncontested. (See FF 1.) Furthermore, I will discuss the critical third element,
which is the subject of the most significant debate, after addressing the fourth
element.
As a threshold requirement, the complainant must demonstrate that he has a
disability that is protected by the applicable statutes. 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 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); see 29 CFR §1630.2(g)(1); 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). Furthermore, regulations promulgated
under the ADA define "mental impairment" to include any "mental
or psychological disorder, such as . . . emotional or mental illness." 29
C.F.R. §1630.2(h)(2). Although the complainant is not disabled according to the
ADA definitions (see n. 13, supra), I am not precluded from finding otherwise
under state law. While this tribunal generally follows federal precedent in interpreting state
anti-discrimination statutes; Levy v. Commission on Human Rights and
Opportunities, 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.5 (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 our
approach on the subject"). The definitions of "disability" in the
ADA and FEPA—and its interpretative case law—differ significantly, and it is
appropriate to look to the provisions of the more protective state law to
determine if the complainant was disabled.
According to General Statutes §46a-51(15), the term "physically
disabled" refers to "any individual who has any chronic physical
handicap, infirmity or impairment, whether congenital or resulting from bodily
injury, organic processes or changes from illness. . . ." See also §1-1.
The definition of physical disability under FEPA encompasses greater
latitude and ensures more protection than the ADA definition; thus, its
application has led to a different result than the federal definition. See,
e.g., Commission on Human Rights and Opportunities ex rel. Knowles v. Gilman
Brothers, CHRO No. 9240221 (August 8, 1995), aff’d, Gilman
Brothers v. Conn. Commission on Human Rights and Opportunities, 1997 WL
275578 (Conn. Super.) (no need to resort to ADA analysis where complainant
clearly met state standard); Commission ex rel. Grant v. Yale-New Haven
Hospital, supra, CHRO No. 9530477, p. 20 (same). Significantly, FEPA, unlike
the ADA, does not require a complainant to prove that he is substantially
limited in a major life activity. If only for the sake of consistency, the same
liberal approach must hold true for mental disorders or disabilities, even
though FEPA does not provide a definition of mental disability or mental
disorder. In its post-hearing brief, the respondent, citing Conway v. City of
Hartford, 1997 WL 78585 (Conn. Super.), conceded that the complainant need
only show that his mental disorder was identified in the most recent edition of
the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of
Mental Disorders"("DSM," in this case "DSM-IV").
(Brief, p. 5) Although the respondent inexplicably reversed its stance in its
reply brief, and argued that the complainant is not disabled under FEPA, its
initial reading of the case law was correct. Conway v. City of Hartford,
the only Connecticut decision attempting to define "mental disorder"
as it is used in FEPA, addressed the question of whether gender dysphoria (transsexualism)
is a mental disorder. According to the Conway decision, General Statutes §46a-60(a)(1) does not provide a definition of "mental disorder," nor do the definition sections of the General Statutes,
namely General Statutes §§1-1 et seq. . . . The term mental disorder is, however, defined in General Statutes §17a-540 . . . . General Statutes §17a-540
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 editions of [DSM]"). Id. at *5. Similarly, the Social and Human Services and Resources statutes
define a person with psychiatric disabilities as "those persons who are
suffering from one or more mental disorders as defined in the most recent
edition of [DSM]." Gen. Stat. §17a-458.15 Hameroff’s reports describe the
complainant as suffering from depression; Berkley’s reports go into greater
detail, identifying the complainant’s ailments as severe depression and
generalized anxiety disorder, both defined in DSM-IV. (See FFs 19, 38.) The respondent incorrectly suggests that the complainant merely had a
"short-term medical problem." Credible, uncontroverted evidence
demonstrates that the complainant suffered from a chronic condition, albeit
asymptomatic at times, characterized by episodic flare-ups in response to
stress. Under FEPA, a physical impairment must be "chronic."
Even assuming, despite the absence of a statutory definition, that a mental
impairment must also be chronic, the complainant has demonstrated that his
disability is chronic, based on documents prepared by his treating physicians.
(See FFs 19, 38.)
I conclude that the complainant suffered from a mental disorder and thus is
considered disabled under, and is protected by, FEPA. For the fourth element of his prima facie case, the complainant must
demonstrate that the respondent had notice of the complainant’s disability and
failed to provide reasonable accommodation. The respondent’s human resources
division had notice of the complainant’s disability, prior to his request to
work at home, by virtue of letters and medical reports as well as from
information discussed in the complainant’s March 24, 1998 meeting with Cleary
and Roy. Evidence also shows that the Lyons and McKellar were aware that the
complainant was suffering from some sort of mental disorder. (See FF 28.) Even
if they did not know the exact name or nature of the complainant’s disability,
they had sufficient notice of its existence. See Zale v. Sikorsky Aircraft
Corp., 2000 WL 306943 *2 (D.Conn.); Equal Employment Opportunity
Commission v. Blue Cross Blue Shield of Connecticut, 30 F.Supp.2d 296, 307 (D.Conn.
1998). Implicit in the complainant’s case is his duty to inform the respondent
that he desires accommodation, for an employer has no obligation to accommodate
an employee whose needs are unknown. Worthington v. City of Hew Haven,
supra, 1999 WL 958627 *11-12. While the record shows that the complainant
submitted no formal written request for accommodation, in apparent contravention
of the respondent’s policy, the respondent is incorrect when it asserts that
this oversight is fatal to the complainant. To request accommodation, a disabled
employee need not make his request in writing, recite any talismanic language,
mention the applicable statutes, or even use the term "reasonable
accommodation." An employee need only use plain English, and he may even
express his desire through a representative such as a family member, friend, or
health professional. All that matters is whether the employee has provided
sufficient notice to the employer of his need or desire for accommodation. Id.
at *13; Taylor v. Phoenixville School District, 174 F.3d 142, 158-59 (3rd
Cir. 1999); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281,
1286 (7th Cir. 1996); see also EEOC Technical Assistance Program,
Enforcement Guidance on the Americans with Disabilities Act and Psychiatric
Disabilities (rev. 2000) pp. 19-22. The respondent was plainly aware that the complainant wanted accommodation
for his disability. The complainant’s desire for accommodation was generally
expressed, at various times, through his March 24, 1998 discussions with Roy and
Cleary, his phone conversations with both Lyons and Roy, and the written
recommendations of Hameroff. Berkley’s recommendation of a four-week,
full-time leave also gave nod to the complainant’s desire for accommodation,
acknowledging that the complainant is capable of working away from the office.
This information sufficiently put the respondent on notice. Nevertheless, the
respondent denied the complainant’s specific request to work at home. To satisfy the third—and most controversial—element of his prima facie
case, the complainant must demonstrate that he is able to perform the essential
functions of his position with (or without) reasonable accommodation. In other
words, he must show that he is "a qualified individual with a
disability."16 Gronne v. Apple Bank for Savings, supra, 2001 WL 30647
*2. Whether one is qualified requires an individualized, fact-specific
assessment. Heyman v. Queens Village, 198 F.3d 68, 73 (2nd
Cir. 1999) ; Worthington v. City of New Haven, supra, 1999 WL 958627 *9.
The inquiry is two-fold: the complainant must show first that he satisfies the
requisite skill, experience, training, and other job-related requirements of the
position, and second that, with (or without) reasonable accommodation, he can
perform the essential functions of his position. Reeves v. Johnson Controls
World Services, Inc., 140 F.3d 144, 149-50 (2nd Cir. 1998); Gilbert
v Frank, 949 F.2d 637, 642 (2nd Cir. 1991); Worthington
v. City of New Haven, supra; see C.F.R. §1630.2(m). As to the first matter,
the complainant had been successfully employed by the respondent in the excise
field unit for more than a decade. His exemplary service ratings and the
commendations in his personnel file portray an individual well qualified for his
revenue examiner positions. As a general rule, if an employee cannot perform the essential functions of
his position, with or without reasonable accommodation, he is not
"qualified." Borkowski v. Valley Central School District,
supra, 63 F.3d 137-38. Essential 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). Identifying the essential functions of any particular job requires a
fact-specific inquiry that considers, among other things, (1) the employer’s
judgment as to what job functions are essential; (2) written job descriptions;
(3) the amount of time spent performing the function; and (4) the consequences
of not performing the function in question. 29 C.F.R. §1630.2(n)(3); Borkowski
v. Valley Central School District, supra, 63 F.3d 140; Worthington v.
City of New Haven, supra, 1999 WL 958627 *10. There appears to be little or no dispute that the essential functions of the
revenue examiner positions predominantly involve the performance of taxpayer
audits and the preparation of written reports at the conclusion of the audits.
Less obvious, and the subject of considerable disagreement, is whether the
pre-audit preparation, additional research and data gathering, and post-audit
responsibilities (other than final written product itself) also are essential
functions. The written job description explicitly refers to the pre-audit
preparation in its list of duties, and the respondent has produced testimony
elucidating the amount of time required for this supporting task—possibly a
day or two, but sometimes a week or more for a single taxpayer audit. The
evidence also shows that a revenue examiner often needs to perform additional
research during the course of the audit. If he is far from the office, or away
for a protracted period of time, he would wait until his return before
accomplishing this. Unquestionably, all of these tasks are undertaken in
support of the primary functions, but they are also the sine qua non of those
functions. Without the time-consuming, thorough and thoughtful preparation and
research (whether pre-audit, mid-audit, or post-audit), the examiner cannot
successfully perform his primary functions. Accordingly, I conclude that these
secondary duties are also essential functions of the revenue examiner position. Because the goal of the complainant and his doctors was to alleviate the
stresses of the office and allow for recuperation, the complainant required some
sort of accommodation. For purposes of the prima facie case, he need only
identify a plausible accommodation, the costs of which, facially, do not clearly
exceed the benefits. Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2nd
Cir. 1999); Borkowski v. Valley Central School District, 63 F.3d
131, 139-41 (2nd Cir. 1995); see 29 C.F.R. §1630.9. The complainant’s
request to work at home, at first blush and without greater scrutiny, satisfies
this minimal burden, particularly because much of his work is, or readily can
be, already performed outside of the office.17 In light of the foregoing, I find that the complainant has provided
sufficient evidence to satisfy his prima facie case, shifting the burden of
persuasion to the respondent to demonstrate that the identified accommodation is
unreasonable or would cause undue hardship. Borkowski v. Valley Central
School District, supra, 63 F.3d 138-39; Gilbert v. Frank, 949 F.2d
637, 642 (2nd Cir. 1991); Worthington v. City of New Haven,
supra, 1999 WL 958627 *11-12. To satisfy its obligation to provide reasonable accommodation, the employer
must implement changes to its procedures, facilities, or performance
requirements to enable an otherwise qualified individual to perform his
essential job functions. See, e.g., Vande Zande v. State of Wisconsin, 44
F.3d 538, 542 (7th Cir. 1995); Commission ex rel. Grant v Yale-New
Haven Hospital, supra, CHRO No. 9530477, p. 26. The ADA sets out a
nonexclusive list of potential reasonable accommodations, including job
restructuring and modified work schedules; 42 U.S.C. §12111(9)(B); Ezikovich
v. Commission, supra, 57 Conn. App. 775; but determining whether a
particular accommodation is reasonable requires a fact-specific, case-by-case
evaluation. Kennedy v. Dresser Rand Co., supra, 193 F.3d 122; Borkowski
v. Valley Central School District, supra, 63 F.3d 138-40. Determination of
an appropriate accommodation requires a cooperative, interactive process in
which both parties make reasonable efforts and exercise good faith. See 29 CFR
§1630.2(o)(3); Beck v. University of Wisconsin Board of Regents, 75 F.3d
1130, 1135 (7th Cir. 1996); Colter v. Yale University, supra,
2000 WL 559023 *2-3; DeMello v. Connecticut Commission on Human Rights and
Opportunities, 2000 WL 38477 *3 (Conn. Super.) The complainant’s preferred accommodation was to work at home, at first
only part-time, then with increased hours. His initial inquiry was made in the
context of his doctor’s recommendation for a four-week, full-time leave.18 The
complainant testified that he expected to return to the office when he felt
better and had adjusted to his medication, and acknowledged that such recovery
might actually take much longer than the prescribed four weeks. While some federal courts have established a per se rule that working at home
cannot be considered a reasonable accommodation except in extraordinary
situations; e.g., Vande Zande v. Wisconsin Dept. of Administration,
supra, 44 F.3d 544-45; according to the Second Circuit, such rule "flies in
the face of the requirement of a case-by-case, fact-specific inquiry." Hernandez
v. City of Hartford, supra, 959 F.Supp. 132. Nevertheless, the evidence in
this record demonstrates that working at home is not reasonable. The respondent proffered numerous reasons why the complainant’s request to
work at home was unreasonable or would pose undue hardship. Several are
manifestly unconvincing. The respondent fears that allowing the complainant to
work at home might jeopardize the security and confidentiality of files. This
concern rings hollow, given the complainant’s common practice (and that of
other revenue examiners) of taking files home overnight or on lengthier
out-of-state travel. Additionally, there is no evidence even to suggest, much
less demonstrate, that the complainant ever failed to keep files secure or
confidential. That the collective bargaining agreement does not expressly allow for working
at home, as Alling emphasized in her written denial of the complainant’s
request, is similarly unconvincing. Its silence on this issue does not
automatically imply the exclusion of the requested accommodation; moreover, the
agreement, by its own language, is overridden by the requirements of the ADA
where the two are in conflict. (See FF 34.) The respondent’s allegation that it has never allowed employees to work at
home is also disingenuous. Nor has the respondent convincingly justified its
trepidation that approving the request would open the floodgates for others
wanting to work at home to avoid an undesirable situation. As determined above,
the reasonableness of an accommodation must be determined on a case-by-case
basis through an individualized inquiry. See Lyons v. Legal Aid Society,
68 F.3d 1512, 1516 (2nd Cir. 1995). More persuasive, and supported by evidence, is the respondent’s assertion
that delegating tasks to others makes working at home an unreasonable option.
The complainant explained that even if out on full-time medical leave he could
execute his primary duties: performing audits in the taxpayers’ offices and
ostensibly completing the written follow-up while at home. Although some of his
work unquestionably required time in the office, especially because he had no
access to DRS files and data bases from outside, he believed that other
employees could prepare or supplement his files, and he testified that if he
needed additional information he could call in and obtain answers over the
telephone or have material sent via facsimile transmittal, just as he did when
he was an interstate revenue examiner.19 He added, somewhat presumptuously,
". . . and if need be, somebody could have brought information to me."
However, the record, including the complainant’s own testimony, reveals that
telephone and facsimile communication generally was limited to small amounts of
information and paperwork. Furthermore, the extensive pre-audit preparatory work
could be time consuming, sometime taking a week or more, and, as the complainant
admitted, the emergence of unanticipated issues during an audit might
necessitate research in the office, either during the course of the audit or
upon a revenue examiner’s return from his travels. In sum, the complainant erroneously believes that his disability warrants a
support system to conduct his research, prepare his files, and provide him with
information on the telephone, by facsimile, or even by bringing it to him. It is
a well-established tenet that an accommodation is not reasonable if it involves
elimination of a position’s essential functions or the transfer of such
functions to another employee. Gilbert v. Frank, 949 F.2d 637, 642
(2nd Cir. 1991); Hernandez v. City of Hartford, 959
F.Supp.125, 132 (D.Conn. 1997); Worthington v. City of New Haven, supra,
1999 WL 958627 *11. Insofar as a revenue examiner’s research and preparation
are essential and cannot be performed without significant time spent in the
office, the complainant’s request to work at home envisions the elimination or
transfer of essential functions and thus is not reasonable. Even if these
functions were not essential, the imposition of the complainant’s duties upon
other employees would be unduly time-consuming, detrimental to the others’
performance of their own duties, and, in the case of delivering files directly
to the complainant, impractical and patently unreasonable. Moreover, employers need not accommodate an employee in the exact manner he
desires or requests, as long as the employer provides some reasonable
accommodation. Gronne v. Apple Bank, supra, 2001 WL 30647 *2; Economou
v. Caldera, 2000 WL 1844773 *23 (S.D.N.Y)(collecting cases); Worthington
v. City of New Haven, supra, 1999 WL 958627 *11; Ezikovich v. Commission,
supra, 57 Conn. App. 775; Commission ex rel. Charette v. Department of Social
Services, supra, CHRO Nos. 9810371 & 9810581 p. 44. Even if the
respondent had not demonstrated that working at home was unreasonable in this
particular set of circumstances, I nonetheless can find that the respondent has
satisfied its duty by providing other reasonable accommodation to the
complainant, including part-time and full-time medical leaves and changes to the
complainant’s reporting requirement. Part-time work may constitute a reasonable accommodation if the employee is
still able to perform the essential functions of his position. Parker v.
Columbia Pictures, supra, 204 F.3d 336 n.5; Ezikovich v. Commission,
supra, 57 Conn. App. 775; 42 U.S.C. §12111(9)(B). Even though, as both Lyons
and McKellar testified, it would be difficult for a revenue examiner to perform
audits efficiently on a part-time basis, at the request of Hameroff the
respondent placed the complainant on a part-time regimen with the remainder of
his time attributable to leave under FMLA. This accommodation had the potential
to be successful but the complainant gave it little chance and asked, within a
matter of days, for full-time leave and the ability to work at home. An employer is not required to provide a position free of stress or criticism
to an employee suffering from depression; such accommodation is not reasonable. Wernick
v. Federal Reserve Bank, supra, 91 F.3d 384; Pesterfield v. Tennessee
Valley Authority, 941 F.2d 437, 441-42 (6th Cir. 1991); Gaul
v. AT&T, 955 F.Supp. 346, 352-53 (D. N.J. 1997). Nor is an employer
required to provide the complainant with a different supervisor or to eliminate
contact between the employee and the supervisor who was the "trigger and
stressor to her depression." Kennedy v. Dresser-Rand Co., 193 F.3d
120 (2nd Cir.1999). Although the Second Circuit does not
establish a per se rule that replacement of supervisor may never be a reasonable
accommodation, there is a strong presumption that it is unreasonable, a
presumption which the employee may rebut. Essentially, there must be a
case-by-case determination. Id. at 122; Wernick v. Federal Reserve
Bank, supra, 91 F.3d 384-85. In the present case, when the complainant averred that the main source of his
stress was McKellar, the respondent readily ended contact between the two, even
though it was not required to do so. This change addressed the most critical of
all of the complainant’s stress-related problems at work. Again, however, the
complainant did not remain at work long enough to reap the intended benefits of
this change or to evaluate the efficacy of this measure. Paid or unpaid medical leave may also be a reasonable accommodation, provided
it is shown to be of a limited duration (e.g., by evidence from a doctor). Cousins
v. Howell Corp., 113 F.Supp. 2d 262, 271 (D. Conn. 2000); Powers v.
Polygram Holding, Inc., 40 F.Supp.2d 195, 199-200 (S.D.N.Y. 1999); see 29
CFR §1630.2(o). While an employee normally must be able to perform the
essential job functions upon provision of a reasonable accommodation, this type
of accommodation differs, for it is possible that an employee may not be able to
work at all and must spend the time convalescing in order to return to
productive work. Nevertheless, medical leave for the purpose of recuperation,
unburdened with expectations of any performance for its duration, has been
deemed a reasonable accommodation. See, e.g., Taylor v. Pepsi-Cola Co.,
196 F.3d 1106, 1110 (10th Cir. 1999); Schmidt v. Safeway, Inc.,
864 F.Supp. 991, 996-97 (D. Oregon 1994). This is precisely what the respondent
had in mind when, in response to Berkley’s recommendation, it placed the
complainant on full-time medical leave, with the goal of his healthy return to
work within a month. The interactive process requires an employer to make a good faith effort to
determine and provide an appropriate accommodation. The respondent concedes that
it did not thoroughly consider the issues that would arise in conjunction with the complainant’s request.
Alling and Mooney, who made the final determination, justified this by
recognizing that there was far too little time to resolve all of the issues
associated with creating the appropriate protocol, given the brevity of the
proposed leave. Such shortcoming, if that is what it is, is not fatal to the
respondent’s position. Instead, the respondent generally demonstrated good
faith by meeting with the complainant, discussing specific health and personnel
issues, and pinpointing the major trigger for his stress and depression, and
then by rearranging the complainant’s reporting requirements and granting
part-time and full-time medical leaves. The respondent’s denial of the
requested accommodation does not undercut all of its other efforts, and nothing
in the record gives credence to the complainant’s assertion that the
respondent had simply turned its back on him. The respondent has successfully demonstrated that the complainant’s
proposed accommodation is unreasonable. By providing the complainant with
reasonable accommodation, albeit not one of the complainant’s choosing, the
respondent has fulfilled its legal obligations. Accordingly, the failure to
accommodate claim must be dismissed. D. Constructive discharge
The complainant argues in his post-hearing brief that the respondent’s
failure to provide reasonable accommodation created a work environment so
injurious to his mental health that it left him no rational choice but to
resign; in other words, he is claiming that he was constructively discharged
from his employment. Although the complainant’s pleadings and testimony
contain no reference to constructive discharge, and his post-hearing brief is
the first specific mention of such cause of action, pleadings are to be
construed liberally and I will not dismiss this claim outright. See, e.g., Hurley-Bardige
v. Brown, 900 F.Supp. 567, 570 n.2 (D. Mass. 1995) ("The [defendant]
contends that because [plaintiff] has not formally pled ‘constructive
discharge,’ the Court cannot proceed to consider it as grounds for liability.
The Court will not be so formalistic. . . . Because it is obvious from the facts alleged in the complaint that
[plaintiff] is proceeding under a theory of constructive discharge, this Court
proceeds accordingly.") Such is the matter at hand. The Connecticut Supreme Court has articulated the proof needed to
substantiate a claim of constructive discharge: Normally, an employee who resigns is not regarded as having been discharged,
and thus would have no right of action for abusive discharge. . . . Through
the
use of constructive discharge, the law recognizes that an employee’s ‘voluntary’
resignation may be, in reality, a dismissal by an employer. . . .
Constructive
discharge of an employee occurs when an employer, rather than directly
discharging an individual, intentionally creates an intolerable work
atmosphere
that forces an employee to quit involuntarily. . . . Working conditions are
intolerable if they are so difficult or unpleasant that a reasonable
person in the employee’s shoes would have felt compelled to resign. . . .
Accordingly, a
claim of constructive discharge must be supported by more than the
employee’s subjective opinion that the job conditions have become so
intolerable that he or she was forced to resign. (Citations omitted; internal
quotation marks omitted; emphasis added.) Brittell v. Department of Correction, 247 Conn. 148, 178 (1998); see also
Colter v. Yale University, supra, 2000 WL 559023 *3; Rapp v.
United Technologies Corporation, 1999 WL 329815 *2 (Conn. Super.). Federal Courts are divided on what proof is needed to substantiate a claim of
constructive discharge predicated upon an employer’s failure to accommodate.
Under the ADA, the Fourth and Eighth Circuits, for example, require an employee
to prove that the employer intended to force the employee to resign. Others,
such as the First Circuit, follow a more lenient standard under which an
employee need only prove that a reasonable person would have resigned under the
circumstances. See discussion in Hurley-Bardige v. Brown, supra, 900
F.Supp. 572-73. Connecticut federal and state decisions have not addressed the
issue of whether, or under what circumstances, an employer’s failure to
accommodate may support a claim of constructive discharge. However, in other
constructive discharge cases not involving accommodation of disabled employees,
the courts emphasize the importance of the employer’s intent to force the
employee to quit. See, e.g., Sedotto v. Borg-Warner Protective Services Corp.,
94 F.Supp.2d 251, 262 (D.Conn. 2000); Leson v. ARI of Connecticut, Inc.,
51 F.Supp. 2d 135, 143 (D.Conn. 1999); Brittell v. Department of Correction,
supra, 247 Conn. 178; Rapp v. United Technologies Corporation, supra,
1999 WL 329815 *2 (Conn. Super.); Luedee v. Strouse Adler Co., 1998 WL
46628 *2 (Conn. Super.). Even following the reasonable person standard, courts
have held that, other than in the most egregious cases, more than a mere failure
to make reasonable accommodation is needed to prove constructive discharge. Hurley-Bardige
v. Brown, supra, 900 F.Supp. 573-74 (under totality of circumstances
approach, failure to make reasonable accommodation was simply one piece of
evidence contributing to the pervasiveness and severity of a hostile work
environment). To begin with, I have already concluded that the complainant has not proved
that the respondent failed to provide reasonable accommodation in violation of
FEPA. Instead, the respondent has satisfied its legal obligations by providing
other accommodation to attenuate both the causes and effects of the complainant’s
disability. This alone removes the underpinnings of a constructive discharge
case based upon an employer’s failure to provide reasonable accommodation. In any event, the respondent’s willingness to provide the complainant with
part-time work and to change his reporting duties, as well as its subsequent
approval of full-time leave (as recommended by Berkley), belies any suggestion
that the respondent intended to render the complainant’s job conditions
intolerable. See Colter v. Yale University, supra, 2000 WL 559023 *4. The
respondent’s refusal to let the complainant work at home does not remotely
suggest such animus, especially since the approved full-time medical leave and
the other accommodations were all designed to allow the complainant to
recuperate and to avoid McKellar, the complainant’s main source of stress.
That the complainant did not embrace the proffered changes and remain at work
long enough to feel their effects cannot be blamed on the respondent. According to the complainant, he "submitted his resignation because, as
supported by his doctor, his continued employment under the conditions demanded
by the respondent would have been injurious to his health." (Post-hearing
brief, p. 15) Such assertion is misleading. The record contains no medical
evidence that working part-time would be harmful. In fact, as of March 24, 1998,
only two days before the complainant began an extended, full-time absence, the
respondent approved part-time work for him at the request of Dr. Hameroff. Even
more important, on that same date, the respondent agreed that the complainant
need no longer report to McKellar. Why Berkley’s opinion differed from
Hameroff’s is never revealed on the record, as neither doctor testified. Nor
does it ultimately matter, because even if part-time work, without reporting to
McKellar, were still injurious to the complainant, Berkley’s recommendation
for a four-week leave, immediately approved by the respondent, was another
solution. That the respondent would not allow the complainant to work at home
while on leave clearly was not injurious to the complainant. Furthermore, constructive discharge requires evidence that resigning was the
only way the complainant could extricate himself from the allegedly intolerable
situation. See Sweeney v. West, 149 F.3d 550, 558 (7th Cir.
1998). As the respondent explained, the complainant had other options, ones
which the respondent readily supported. He could have continued his full-time
medical leave, recuperating for another few weeks, without any obligation to
complete his work. Or, he could have remained on part-time work, coming in to
the office as needed, avoiding McKellar, and performing field audits as
scheduled. Moreover, the fact that the complainant rescinded his resignation and
asked to return to work—and was unhesitant to report to McKellar, no less—further
undermines his claim of constructive discharge. See Yancey v. Allstate Ins.,
1999 WL 1063270 *4 (Conn. Super.). The complainant has not offered sufficient support for his contention that
the respondent intentionally created an intolerable work environment such that a
reasonable person in the complainant’s shoes would have felt compelled to
resign. In fact, the respondent’s willingness to provide other accommodations
further demonstrates that the respondent did not intentionally seek to drive the
complainant from his position. Accordingly, his constructive discharge claim
lacks merit. Although the complainant did not allege or argue that the respondent’s
failure to reinstate him was a discriminatory act, he did provide extensive
testimony on his unsuccessful efforts to return to DRS. I will address this
matter summarily. According to General Statutes §5-248(f), "[a]ny agency may
reinstate, without examination, any employee who has resigned in good standing
and has withdrawn his resignation within one year to positions in classes in
which he has attained permanent status." (Emphasis added.) By June 1998,
the complainant felt ready to return to work and even to report to McKellar. At
that time, however, and throughout the summer and fall, the only appropriate
openings were at the career trainee level, in which the complainant had no
interest; nor did the complainant pursue the Revenue Examiner-1 positions which
opened early in 1999. (As discussed earlier, the complainant was not eligible to
return as a Revenue Examiner-2 because he had not yet attained permanent status
in that position.) The respondent apprised him of the requisite protocol to
apply for the positions, but the complainant did not pursue that opportunity. The complainant has not provided any convincing evidence or argument that the
respondent’s failure to reinstate him constitutes a discriminatory action. The
plain language of the statute vests the respondent with discretion;
reinstatement is not mandatory. Furthermore, the complainant made no showing
whatsoever that the respondent was even remotely motivated by a discriminatory
animus or that the respondent’s reasons for not rehiring him were not
credible. FINAL DECISION AND ORDER In light of the foregoing, and in accordance with the provisions of General
Statutes §46a-86, it is hereby ordered that the complaint be, and hereby is,
DISMISSED. So ordered, this ____ day of _________ , 2001. _____________________________ David S. Knishkowy Human Rights Referee Copies mailed to all counsel and parties of record on this date. PARTY LIST Party: Sharad Saksena Represented by: Richard W. Gifford, Esq. Party: Commission on Human Rights Represented by: Margaret J. Nurse-Goodison, Esq. Party: State of Connecticut Represented by: Jonathon L. Ensign, Esq. ENDNOTES 1Exhibits introduced by the commission (on behalf of the complainant) bear the
prefix "C." The respondent’s exhibits bear the prefix "R." 2
157 Perry Street
Unionville, CT 06085
449 Silas Deane Highway
Wethersfield, CT 06109
and Opportunities
21 Grand Street
Hartford, CT 06106
Assistant Commission Counsel II
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Hartford, CT 06106
Department of Revenue Services
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Hartford, CT 06106
Office of the Attorney General
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Hartford, CT 06141-0120
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One of the respondent’s witnesses had been hospitalized throughout most of February and the first half of March, thus necessitating the lengthy continuance between the second and third hearing sessions.4
The term "employee" includes the state and all political subdivisions thereof. General Statutes §46a-51(10)5
See also Ex. C-4, which sets forth the job specifications for the Revenue Examiner-2 position. Although this document comprises the only written job description in the record, ample testimony reveals that the job duties of all three revenue examiner positions that the complainant held were essentially alike. Pertinent duties of a revenue examiner are set out below in FFs 11-16.6
This form was designed by the U.S. Department of Labor specifically for employees’ requests for leave under the Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq.7
Since November 1997, Rosemary Cleary has been a tax division chief in charge of the excise field unit, the public services unit, and the refunds and adjustments unit. (Test. Cleary, Tr. 139)8
Based on this record, it appears that the complainant called both Roy and Lyons on the same day. He probably called Lyons after Roy deflected his request to work at home.9
It is not clear whether Berkley meant that the complainant should be on full time medical leave or that he could continue working part time, but outside of the office and away from McKellar. Roy perceived Berkley’s letter as a recommendation for full-time leave under FMLA, as evidenced by her preparation of FMLA paperwork, while the complainant testified that he did intend to continue working part time—and eventually increase his hours—if he was allowed to do so at home. (Test. Saksena, 267-68) In fact, the complainant testified that he had hoped to work at home for four to six months (Id. at 43), but there is no evidence that he made such request to anyone at DRS. Berkley’s testimony would have been helpful on these issues, but the complainant, who initially identified Berkley as a witness, later withdrew the doctor from his witness list.
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The complainant testified, "Well, between the incident of Mr. McKellar going into my cubicle and then my accommodation being denied, I really thought, you know, these people are not out there to help me. They’re out there to get me." Test. Saksena, 29-30.
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The respondent has identified—and I am aware of—no cases that reject this stance.
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A qualified individual with a disability is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. §12111(8); Cleveland v. Management Systems Corp., 526 U.S. 795, 801 (1999); Levy v. Commission, supra, 236 Conn. 107. Here, where the federal and state cases are consonant, there is no reason not to look to federal precedent as well as Connecticut precedent.
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Dr. Berkley did not request or recommend that the complainant work at home as an alternative to working in the office; he merely observed that the complainant was capable of working at home while on leave.
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