Secondo v. The Housing Authority of the City of Hartford, Memo of Decision
CHRO No. 9710713
Commission on Human Rights and Opportunities ex rel. Frank Secondo, Complainant
The Housing Authority of the City of Hartford, Respondent
June 9, 2000
MEMORANDUM OF DECISION
1. On June 24, 1997, Frank Secondo (“the complainant”) filed a complaint with the Commission on Human Rights and Opportunities (“the commission”), alleging that his employer, the Housing Authority of the City of Hartford (“the respondent”) discriminated against him in violation of General Statutes §46a-60(a)(1) and §46a-60(a)(4) and the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§12101 et seq., as enforced by General Statutes §46a-58(a). Specifically, the complainant claims that, because of his disabilities, the respondent harassed him, denied him the opportunity to earn overtime, and failed to promote him. The complainant also alleges that the respondent refused to provide reasonable accommodations and retaliated against him for opposing the allegedly discriminatory practices. (Record Exhibit [“Ex.”] 1)
2. The respondent is an employer, as that term is defined in General Statutes §46a-51(10), and therefore is subject to the provisions of the Connecticut Fair Employment Practices Act, (“FEPA”), §§46a-51 et seq. The respondent is also an employer, as that term is defined in 42 U.S.C. §12111(5), and therefore is also subject to the provisions of the ADA. (See respondent’s Answer to the Complaint, March 26, 1999.)
3. The commission investigated the charges of the complaint, found reasonable cause to believe discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified to public hearing on July 23, 1998, in accordance with General Statutes §46a-84(a). (Record Ex. 3)
4. Due notice of the public hearing before the Honorable John F. Daly, III was given to all parties and attorneys of record on August 5, 1998, in accordance with General Statutes §46a-84(b) and §46a-54-90 of the Regulations of Connecticut State Agencies (“the regulations”). (Record Ex. 4)
5. This matter was reassigned to the Honorable Lara L. Manzione, chief human rights referee, on March 2, 1999 and thereafter assigned to the Honorable David S. Knishkowy, human rights referee, on October 25, 1999.
6. A public hearing was held on December 1, 2, 3, and 6, 1999. Thereafter, the parties filed post-hearing briefs and reply briefs, and the record closed on March 20, 2000.
7. All statutory and procedural prerequisites to the holding of the public hearing have been satisfied and this complaint is properly before the human rights referee for decision. (Record Exs. 3-6)
FINDINGS OF FACT
1. The respondent is the Housing Authority of the City of Hartford, one of the city’s municipal departments. The respondent provides subsidized rental housing to low- and moderate-income individuals and families. (Transcript [“Tr.”] 711-13)
2. Frank Secondo, the complainant, has been a carpenter since 1968. He was employed by the respondent from November 1975 until the end of December 1998. (Tr. 13, 27, 106-07, 187, 581; Exs. CHRO-2, -3, -4, -12, -19)
3. The complainant’s job duties included installation of cabinets and countertops; roof and gutter work; stair and porch repair; floor installation and tiling; and work on interior and exterior doors. Occasionally, the complainant plastered and painted damaged walls, installed sheetrock, and did minor taping and form work. (Ex. CHRO-15; Tr. 27, 554-55) According to the job description for the respondent’s carpenters (as of September 1, 1995), a carpenter must be able to “perform heavy work in exerting 100 pounds occasionally, 50 pounds frequently, and 20 pounds constantly.” (Ex. CHRO-15)
4. The complainant has a history of heart disease. He had a heart attack, followed by heart bypass surgery, in 1985. Since then he has suffered from high blood pressure. In 1992, he had a second heart attack and sustained 15-20 percent permanent damage to the lower portion of his heart. (Tr. 14-18) After recovering from his 1992 heart attack, the complainant returned to work with no medical restrictions. (Ex. CHRO-1, p. 2)
5. In 1994, the complainant was diagnosed with Type II diabetes. (Tr. 15)
6. The complainant’s supervisors and co-workers, as well as the respondent’s personnel officer, were aware of the complainant’s heart disease and high blood pressure because the complainant talked freely about his health problems. Some of these individuals, but not all, were aware of his diabetes as well. (Tr. 27-30, 282-83, 309-10, 373-74, 493, 552)7. The complainant also suffers from degenerative disk disease, degenerative spondylosis of the cervical spine, chronic musculoligamentous strain of the lumbar spine, and chronic left trapezial and musculoligamentous inflammation of the left shoulder girdle. In July 1998, the complainant’s treating physician assigned a permanent partial disability rating of five percent to the complainant’s left shoulder, five percent to his cervical spine and a five percent to his lumbar spine, all attributable to work-related injuries in 1997. (Ex. CHRO-32; Tr. 19-20) The complainant also was assigned an eleven percent permanent partial disability to his left leg from an injury sustained in March 1994. (Tr. 20)
8. The complainant has been taking medication for his heart disease and blood pressure since his bypass operation in 1985, and medication for his diabetes since the diagnosis in 1994. The complainant presently takes the following medications: Pravachol [no dosage identified], once a day; five milligrams of Glocotrol twice a day; 500 milligrams of Gluchopage twice a day for sugar; five milligrams of Hytrin once a day for diabetes; Amiloride once a day for his heart; twenty milligrams of Zestril once a day for high blood pressure; 300 milligrams of Cardizem once a day for his heart; two Prozac daily; and an aspirin every day for heart disease. (Tr. 15-18; also see pp. 119 ff., 246-48) The complainant was taking the same or similar medications during the times pertinent to this complaint. (Tr. 118) He will need to continue use of medication for the remainder of his life. (Tr. 247-49)
9. The complainant’s medications cause him, among other things, to tire easily, to sweat profusely, to get dizzy and short-winded, to hyperventilate, to urinate frequently, and to see spots in front of his eyes. (Tr. 18-19, 216)
10. With the help of his medications, and notwithstanding their side effects, the complainant was able to perform his regular job duties and complete all of his assignments, but he sometimes did so more slowly and with greater difficulty than other carpenters. In particular, he had trouble carrying heavy objects up and down stairs. (Tr. 27, 119-20, 134-37, 151-52, 190, 246) His work assignments were similar to those of other carpenters; he was not assigned less work or easier tasks, and he was never disciplined for taking longer than others to complete his assignments. (Tr. 152, 345, 628)
11. In the early 1990s, the respondent employed eight or nine carpenters,
including two carpenter foremen, Dan Healy and Dan Pelletier. (Ex. Resp-33; Tr.
145, 256, 297) After Pelletier was transferred to a different division in late
1993 or early 1994, the respondent eliminated his foreman position. (Tr. 33,
145, 560, 690) In 1994, Healy was promoted to director of skilled trades and the
foreman position he formerly held became vacant. (Tr. 34, 544-45)
12. The complainant believed that promotions were given on the basis of seniority and he informed the respondent of his interest in the vacant foreman position. (Ex. CHRO-19; Tr. 48, 561-62).
13. The respondent did not post the vacant foreman position after Healy was promoted. Instead, upon Healy’s recommendation, Andy Montanez, who had less seniority than the complainant, became temporary carpenter foreman on or about March 2, 1994. (Exs. CHRO-64, -65, Resp-39; Tr. 298-99, 557-58)
14. Under the collective bargaining agreement existing at that time, the respondent could place an employee into a position on a temporary basis without posting the position and without a formal application process. Furthermore, a person could remain in a temporary position indefinitely. (Ex. Resp-25; Tr. 287-89, 300, 700, 728-29)
15. The complainant complained to Thomas O’Connor (his union president) and to Healy about Montanez’s appointment as temporary carpenter foreman. (Tr. 44-45, 286-88, 563-64)
16. On March 9, 1994, the complainant fell and broke his ankle at a job site. (Tr. 51-52) Healy came to see the complainant in the hospital emergency room. According to the complainant, Healy stated that he would hold the carpenter foreman position for him. (Ex. Resp-1 par. 11; Tr. 67) Healy denies having said this. (Tr. 557) 
17. The complainant was out of work more than nine months due to his broken ankle. He returned to work on January 2, 1995. (Tr. 570)
18. On March 5, 1995, the complainant wrote a memorandum to O’Connor alleging that the respondent had violated the collective bargaining agreement and discriminated against him because of his disabilities when it failed to post the job vacancy and instead filled the foreman position on a temporary basis with an allegedly less-qualified person. O’Connor, in turn, met with Katherine Travers, the respondent’s director of human resources. He asked her to post the position, but did not give the complainant’s memorandum to her. (Ex. CHRO-71; Tr. 44-45, 250, 280, 286-87, 302, 660, 699)
19. The respondent formally posted the position of carpenter foreman on or about March 14, 1995 and the complainant subsequently applied for the position. (Exs. Resp-21, CHRO-12, -13; Tr. 287) The application process required candidates to submit a resume and references and to take an oral examination before a review panel. (Exs. Resp-4, -48, -49; Tr. 38, 40, 250, 288)
20. The complainant and Montanez were the only two carpenters who applied and took the oral examination for the foreman position. (Exs. CHRO-12, Resp-45, -46, -50; Tr. 33, 39, 289) Montanez ranked first in the examination (with a score of 9.0) and the complainant ranked second (with a score of 7.18). (Exs. Resp-5, -42, CHRO-12, -16) Thereafter, both candidates received formal interviews. (Ex. CHRO-5)
21. On May 22, 1995, the respondent appointed Montanez as the carpenter foreman. (Ex. CHRO-66; Tr. 560-61) The complainant was placed on a sixth-month eligibility list for the position. (Exs. Resp-5, -44)
22. The complainant expressed his displeasure at not being promoted to O’Connor,
to Travers, and to Marion Roane, one of the respondent’s deputy directors.
23. The complainant contends, with few specific examples, that after he complained about not getting the foreman position he was retaliated against by being given harder assignments, harassed about his infirmities, and sometimes denied a helper.  He claims (with no specific dates or details) that he was assigned to work on second and third stories, perform work from ladders, and make repairs to roofs and gutters, all made difficult because of his health problems. He believed that his supervisors were constantly checking up on him via walkie-talkie, to make sure he was working. He also felt that his supervisors rushed him around. (Tr. 54-56, 59-60, 196)
24. After Montanez became foreman, he and Healy, later on joined by Lenny Texidor, occasionally alluded to the complainant’s physical condition in a disparaging manner. For example, Healy and Montanez told the complainant that he did not work fast enough and suggested that he consider retirement because of his heart disease. (Tr. 56) Co-workers sometimes made remarks about his infirmities as well, although the complainant concedes that at least some of the time they were joking around. (Tr. 57) The complainant himself, in fact, joked about Montanez’s deformed hand, and this type of banter seemed common in the workplace. (Tr. 496, 540, 619)
25. The complainant did not have a good working relationship with Montanez, often arguing about assignments and complaining about his physical infirmities. The complainant was clearly bothered by the fact that Montanez had fewer years of experience than the complainant did. When the complainant argued less and accepted his assignments without challenge, the relationship improved. (Tr. 60-62)
26. The complainant was out of work in the summer of 1995 because of a lumbosacral sprain. On July 25, 1995, Martin DeSomma, a chiropractic physician, prepared a disability certificate indicating that the complainant could return to work with a lifting restriction of twenty-five pounds. Travers called DeSomma on July 27, 1995 and told him that the complainant could not return to work with any restrictions. DeSomma then prepared another disability certificate, which stated that the complainant “may return to normal work duties as long as he wears his low back support. No lifting restrictions.” (Exs. CHRO-1, -37; Tr. 155-57)
27. In 1996, when the maintenance department merged with the skilled trades department, Lenny Texidor became an administrator of central maintenance. His responsibilities included supervising the maintenance workers and assisting Healy in generating and processing work orders, and checking on-site work. Texidor shared office space with Healy and when the latter was on vacation or out sick Texidor assumed his duties, including oversight of the complainant and the other skilled tradesmen. (Tr. 332, 390-91, 419, 466)
28. When Texidor began his new position, he and Healy held a meeting for all of the skilled tradesmen. At that meeting, Texidor emphasized, among other things, that he was not interested in hearing about anyone’s problems or disabilities and that employees who were not “100 per cent” and who were unable to do all of their assigned work should not be working for the respondent. Texidor repeated this admonition directly to the complainant on several other occasions. (Tr. 115-16, 151, 311-12, 314, 378-79, 395, 407-09, 426, 607) When the complainant talked about his health problems, Texidor would tell him to discuss his problems and needs with the personnel office (Tr. 408, 411), but there is no evidence that complainant followed this recommendation.
29. On a few occasions, during routine “spot checks,” Texidor discovered that the complainant was not at his assigned job site. (Tr. 476) Healy likewise discovered the complainant away from his assigned job on two occasions; one time the complainant was at the carpenter shop, another time on a pay telephone on a street corner. (Tr. 628-29)
30. The complainant had attendance and tardiness problems in late 1996 and early 1997, in violation of the respondent’s attendance policy. (Ex. Resp-23) These led to counseling and oral and written warnings. (Exs. CHRO-58, Resp-20, -22)
31. Since the early 1990s, the respondent has hired temporary carpenters who, for the most part, work on the exterior of apartment units or in vacant apartments; they are not allowed to enter occupied units alone. Sometimes, however, they are assigned to work in an occupied unit with one of the regular carpenters, although they may be working on a different carpentry job within that unit. (Tr. 49-51, 292, 421, 433-36, 625) Temporary carpenters are skilled workers who, at the time of the hearing, were paid approximately thirteen dollars per hour. (Tr. 166, 458) Early in the 1990s, because of a large workload, there were enough temporary carpenters to assign one to work with each carpenter. (Tr. 565) In 1996 and 1997 there were only three temporary carpenters. (Tr. 384, 565)
32. The respondent also employs unskilled laborers, who do general maintenance work such as replacing windows, changing light bulbs, fixing faucets, unclogging toilets, and cleaning up after a skilled tradesman is finished. Several laborers are assigned to each project every day or they might be sent to work with a carpenter or temporary carpenter on an as-needed basis (e.g., to deliver supplies or help move or lift heavy materials). Skilled tradesmen can call them directly for assistance without going through Healy’s office. (Ex. Resp-25, p. 33; Tr. 442-43, 456, 468, 470, 503, 511, 566-67, 625-26)
33. Since 1995, when he first complained about not being promoted, the complainant often asked his supervisors to assign a temporary carpenter or a laborer to help him. His requests were not always granted. (Tr. 310, 330, 374, 564)
34. Eighty to ninety percent of the carpentry work could be done alone. Some
jobs, however, would require either a second carpenter or the assistance of a
laborer. (Tr. 625-26) For example, two people would typically be needed to carry
large or bulky items such as sheetrock, countertops, cabinets, and beams. (Tr.
23-24, 454-55, 467)
35. Maintenance workers or other skilled laborers were often at the same job site as a carpenter and they would assist each other. (Tr. 511, 566-67) For example, installation of a countertop with a sink would require both a carpenter and a plumber. In such case, the plumber might help the carpenter move or lift heavy or large materials. (Tr. 455) The complainant himself often obtained assistance on site from other skilled laborers or maintenance staff. (Tr. 25, 192-200)
36. The complainant routinely complained about his ailments (Tr. 395-97, 552)
and, consequently, about the difficulty of the assignments given to him. He
frequently claimed that he was tired and often asked for assistance, even before
he arrived at the actual job-site or knew the details of the assignment. (Tr.
401-02 , 411-12, 480, 493-94, 618, 631) On several occasions—the complainant
has not enumerated specific examples—Texidor denied the complainant’s
request for help when the complainant’s daily work order described a job that,
in Texidor’s opinion, didn’t warrant two people. (Tr. 401-02) The
complainant asked for assistance so frequently and complained so often —more
than any other skilled tradesmen, according to Texidor—that he became an
annoyance to others, particularly to Texidor and Healy. (Tr. 327, 385, 402, 410,
419-20, 480, 553, 555-56, 607)
37. In 1997, another carpenter, Carmelo Diaz (who had no physical infirmities), often had a temporary carpenter assigned to him, but that was because Diaz was authorized to train the temporary carpenter to become a general maintenance worker. (Tr. 330-31)
38. On one occasion in 1996 or 1997, after Healy rejected one of the complainant’s many requests for assistance, Sonia Correa, the secretary/administrative clerk for Healy and Texidor, overheard Healy, apparently frustrated with the incessant complaining, refer to the complainant as a “piece of shit.” Another time, Correa heard Healy opine aloud that he wished the complainant would just “drop dead and the problem would go away.” She claims to have heard Healy and Texidor joking about the complainant, but she has provided no details. Correa also recalled hearing Montanez tell other skilled tradesmen that the complainant would never be foreman because he was too fat to climb ladders; she also heard him say, in her words, “. . . if he would climb the ladder he would have a heart attack up there on the roof and drop over dead . . .” (Tr. 326-29) There is no evidence that the complainant heard any of these comments or that Correa reported them to him.
39. Montanez retired at the end of March 1997 under a retirement incentive plan offered by the respondent. (Exs. CHRO-20, -24; Tr. 63) When Montanez retired, the number of carpenters was reduced from eight or nine to five. (Ex. Resp-33; Tr. 145-46, 225, 581) At the time of the public hearing, the respondent employed only four carpenters. (Tr. 297, 612)
40. After Montanez retired, the complainant assumed he would be promoted to carpenter foreman due to his seniority and his experience. (Tr. 63-67, 82, 357, 379)
41. The respondent’s carpenter foreman’s duties include, among other things, assigning jobs, estimating costs of materials and labor, setting up specific jobs, delegating assignments, ordering materials, running the carpenter shop, instructing maintenance workers and apprentices, and administering safety procedures. (Ex. CHRO-8) According to the formal job description, the foreman must have a demonstrated ability to train, motivate, and supervise employees, and proven interpersonal and communication skills. (Ex. CHRO-7) In addition to his supervisory duties, a foreman assists carpenters at the work site and, accordingly, must have all of the skills required of a carpenter, including the ability to move or lift at least seventy-five pounds. (Ex. CHRO-7; Tr. 427-28, 621) If a carpenter has to leave early for personal or family reasons, the foreman is expected to stay and complete the job. (Tr. 622)
42. Healy’s years of experience with the complainant led him to conclude that the complainant was not dependable, lacked leadership qualities, and wasn’t “willing to go the . . . extra mile.” (Tr. 620-21, 628-29) Healy believed that John Kennison, like Montanez, had the qualities that the complainant lacked. (Tr. 217, 620-21) Texidor likewise considered the complainant to be argumentative, undependable, and lacking in any leadership qualities. He believed that the complainant often wasted time just “walk[ing] around” or complaining about his health problems and his work assignments. (Tr. 419, 462-63, 475-76, 481) 
43. At the retirement party for Montanez, the complainant, presuming that he would become foreman, asked Healy for the keys and alarm code for the carpenter shop. (Tr. 64) Healy responded by saying that he wanted Kennison to be the temporary foreman. (Tr. 68-71) Correa observed Montanez handing some keys to Kennison, and heard Montanez say, in Correa’s words, “Here, you’re the next carpenter foreman.” (Tr. 324)
44. In early April 1997, Healy sought permission from his supervisors and the personnel office to refill the foreman position. (Exs. Resp-29, -31, -32; Tr. 595-96) In particular, he recommended Kennison for the position, at least on a temporary basis. The respondent, however, did not assign Kennison or anyone else on a temporary basis, and it declined to post the vacancy because it did not plan on refilling the position. (Exs. Resp-15, -29, CHRO-20; Tr. 291-92, 319, 511-13, 592 –94, 727) Someone, possibly Travers, suggested that Healy or his immediate supervisor provide written justification for the request, which was ultimately done six months later. (See Finding of Fact [“FF”] 55.)
45. A week or two after Montanez’s retirement party, Healy gave Kennison the keys to the carpenter shop and the alarm code for the warehouse. (Tr. 75, 439, 524, 593) The foreman is the person normally given the alarm code for the warehouse. (Tr. 439)
46. After Montanez retired, Kennison gave the assignments to temporary carpenters. (Tr. 293-94, 507) He would stop by various work sites to see if the temporary carpenters needed any assistance. (Tr. 508) The complainant observed Kennison performing foreman duties such as opening the warehouse gates and taking the trucks out. (Tr. 75-77).
47. Correa heard Kennison assigning duties over the walkie-talkie to the other carpenters. (Tr. 333-34) In August 1997, when Kennison gave Correa a ride after work, he asked her if, in accordance with the collective bargaining agreement, he was entitled to additional compensation because he had been acting as foreman for more than thirty days. (Ex. Resp-3; Tr. 334-35)
48. At some point in 1997, Correa heard Kennison tell Healy that the complainant should never get the foreman position because he was disabled and could not climb a ladder, and that the position should be eliminated before it was given to the complainant. (Tr. 337-38) Thomas Eckel, heating mechanic employed by the respondent, overheard Kennison tell the complainant that the complainant physically could not handle the foreman position. (Tr. 382)
49. On April 8, 1997, the complainant, through his union, filed a grievance with the respondent’s human resources division, alleging that the respondent discriminated against him by failing to promote him to the carpenter foreman position. (Ex. CHRO-73, Resp-7; Tr. 79, 289-90, 659) Travers denied the grievance at its first step on April 18, 1997, asserting, among other reasons, that the grievance was premature because the respondent had not decided whether to fill the position. (Exs. CHRO-74, Resp-9; Tr. 664) The grievance was subsequently denied at the second step by the respondent’s executive director. (Exs. CHRO-79, Resp-10) At the final step of the grievance procedure—formal arbitration after failed mediation—the State Board of Mediation and Arbitration determined that the respondent did not violate the contract by failing to promote the complainant. (Ex. CHRO-89; Tr. 291, 665, 669)
50. On or about April 23, 1997, the complainant injured his back, neck and shoulder when he fell while moving a door. (Ex. CHRO-32; Tr. 14, 20-21) He returned to work, with no medical restrictions, on June 23, 1997. He asked Healy to provide a temporary carpenter to assist him, but his request was denied because all three of the temporary carpenters had been assigned to other skilled tradesmen. (Tr. 22, 85-86, 314-17)
51. On June 25, 1997 (the day after the instant complaint was filed), the complainant injured his back and shoulder while installing a heavy “L-shaped double-particle-board counter top” in one of the apartment units. (Ex. Resp-24; Tr. 23-26, 84-85) This type of job typically required more than one person. (Tr. 23-24, 455-56, 467; see FF 34)
52. Although Healy had denied the complainant’s request for assistance with the countertop that morning, two individuals who were working at or near the same job site helped the complainant bring the counter top up the stairs to the appropriate apartment. They then had to return to another job and left the complainant to install the counter top by himself. The complainant did not ask them to stay and help with the installation. (Tr. 23-26; 167-72, 315-17)
53. The complainant was unable to work at all from June 25, 1997 until September 15, 1997. (Ex. Resp-24).
54. On September 8, 1997, Paul Murray, the complainant’s treating physician, signed a disability certificate which stated that the complainant could return to work on September 15, 1997. The certificate did not indicate any restrictions. (Ex. Resp-37). The complainant, however, did not return to work at that time. (Tr. 90)
55. In October 1997, Healy renewed his request to fill the vacant foreman position, even though he believed the complainant would probably apply. In November 1997, upper level management, with the advice of Travers in personnel, decided to eliminate the carpenter foreman position. (Exs. CHRO-11, Resp-30, -33, -34; Tr. 101, 292, 596-97, 635, 711)
56. In a similar situation, when the painters’ foreman retired, the respondent did not post that vacancy or fill the position despite the fact that others were interested in becoming foreman. (Tr. 274) Some of the other skilled trades departments did not even have a foreman. Departments without foremen reported directly to Healy. (Tr. 602)
57. The primary reasons for eliminating the carpenter foreman position were the ongoing reduction in the number of units maintained by the respondent and the concomitant reduction and reorganization of the respondent’s personnel. Between 1995 and 1998, the respondent reduced the number of apartment units within its inventory from about 4,000 to 3,000. With the decrease in units, there was less need for the skilled tradesmen; various divisions were reorganized and consolidated, retirement incentives were offered, and vacant positions were not refilled. By 1997, only five carpenters remained. Consequently, the respondent determined that there was no need to fill the carpenter foreman position. Healy himself has handled the duties of carpenter foreman since the respondent formally determined not to fill the position. (Exs. Resp-33, -34, -35; Tr. 297, 464-65, 482-83, 597-99, 602-03, 711-15)
Travers articulated the foregoing justification in great detail in her memorandum to the respondent’s executive director, John Wardlaw, on October 27, 1997. (Ex. Resp-33) She also stated in that correspondence,
Exacerbating this issue is Mr. Secondo’s discrimination complaint against the Authority with the Commission on Human Rights and Opportunities relative to the adjunct matters surrounding the issue of Carpenter Foreman. Our position is largely based on the absence of a decision to fill this position since Mr. Montanez retired in April 1997. A change in that direction now might compromise the Authority’s case.
58. On November 26, 1997, the complainant obtained a written return-to-work authorization from Murray. The authorization restricted the complainant from lifting more than fifteen pounds, bending, and stooping. (Exs. CHRO-1, -43, Resp-37) Travers then informed the complainant that he could not return to work with restrictions. (Tr. 87-88) (See FF 65, infra.)
59. On December 8, 1997, Murray certified the complainant to return to work
the next day on “light duty status.” (Exs. CHRO-1, -41, Resp-37) Dr. W. Jay
Krompinger evaluated the complainant on December 9, 1997 and determined that the
it would be reasonable for the complainant to return to work with light duty
assignments and then slowly return to his regular duties with the assistance of
a helper. (Ex CHRO-55) The respondent still did not allow the complainant
to return to work, given its light duty policy. (See FF 65.)
60. On February 23, 1998, Murray again certified the complainant to return to work, with light duty and a lifting limit of fifteen pounds for two more months. (Exs. CHRO-1, -40, Resp-37) On April 23, 1998, Murray stated in another disability certificate that the complainant “will continue with light duty restrictions which include no lifting more than 15 pounds until evaluated on May 5, 1998.” (Exs. CHRO-1, -39, Resp-37) Following the May 5, 1998 evaluation, Murray again authorized the complainant to return to work with the same restrictions pending a follow-up evaluation in July. (Exs. CHRO-1, -38, Resp-37) At no time did Murray ever lift the restrictions. (Tr. 90)
61. In light of the fifteen-pound lifting restrictions following his June 25, 1997 accident, the complainant can no longer lift or move the requisite seventy-five pounds. (Tr. 178, 181, 623; see FF 41)
62. A carpenter’s tool box alone weighs more than fifteen pounds.
63. The complainant believed—and repeatedly told the respondent—that he was willing and able to return to work and perform carpenter duties if he had assistance with heavy materials. (Tr. 91, 114, 166, 189) Alternatively, in light of his years of experience and his seniority with the respondent, the complainant believed he could function well as carpenter foreman, delegating the heavy work to other carpenters. (Tr. 189)
64. Notwithstanding Murray’s and Krompinger’s recommendations, the respondent did not allow the complainant to return to his position at any time after the June 25, 1997 incident. (Tr. 85, 114-15, 611-12)
65. Since the early 1990s, the respondent’s unwritten policy has been not to allow sick or injured employees to return to work with restrictions or on “light duty” while they are recuperating. A physician must first certify to the satisfaction of the respondent’s personnel department that a returning employee is fully able to perform his duties without medical restrictions. (Ex. CHRO-32; Tr. 257, 294, 379, 413-14, 607, 611-12, 674-75, 731) On the other hand, if an employee has a permanent restriction and will not recover further, the respondent—specifically Travers, in conjunction with Wardlaw—would consider possible accommodations. (Tr. 675-78)
66. On April 21, 1998, Dr. Peter Barnett, an orthopedic physician, wrote in his medical evaluation that the complainant’s “prognosis for return to normal unrestricted functional work activities is poor. Maximum recovery at this juncture has likely been achieved.” In Barnett’s opinion, “it is probable that the patient’s recommended functional restrictions will be permanent in nature.” (Ex. CHRO-54; Tr. 686)
67. In his report of July 13, 1998, Murray determined that the complainant had reached maximum medical improvement and he assigned permanent partial disability ratings. (Ex. CHRO-32; see FF 7)
68. After learning in mid-1998 that the complainant’s injuries were permanent, Travers discussed with the complainant the possibility of being retrained for a different position with the respondent. The complainant told Travers that he would “think about it” but he did not follow up with her because he wanted only to be a foreman. (Tr. 219-23, 225, 679-80, 687, 723) Since that time, the complainant has made no effort to find a carpentry foreman position—or any other position, for that matter—with another employer. (Tr. 215)
69. Although the complainant did not return to work after his June 1997 injury, he remained employed by the respondent, using accrued sick and vacation leave and receiving various disability benefits. He was willing to return to work at any time and would have done so had the respondent provided light duty assignments or other accommodations. He retired on December 31, 1998 when the respondent offered a retirement package that provided, among other things, a lump sum severance payment and free prescriptions and medical insurance for life. (Exs. CHRO-32, -33, -34, -35; Tr. 106-08, 113)
70. The carpenters and the carpenter foreman worked forty hours per week and
earned “time and a half” for overtime work. (Tr. 585-86)
71. The respondent assigned overtime on a rotating basis, beginning with the most senior employee. The foreman or the supervisors would offer an overtime job to one employee who could accept or reject the work. If the employee accepted the work he would work for one day, even if the job took more than one day to complete. The next available work would be offered to the person next on the list. If an employee refused the overtime assignment, he would have to wait until the cycle was completed before he was offered another overtime job. (Tr. 97, 98, 403-06, 586-87)
72. The carpenters frequently refused overtime work when they were reached in the rotation. (Tr. 587)
73. In the early 1990s, there were several years when the respondent offered no overtime work at all. Approximately 200 hours of overtime work were available in both 1994 and 1995, somewhat more in 1996. (Tr. 583-84) There was a significant increase in overtime work at the end of 1997 and into 1998 when the respondent’s skilled laborers, for reasons unexplained on this record, did a job at Mystic Aquarium. (Tr. 583-86)
74. In 1996, the complainant accrued 202.75 hours of overtime, more than twenty-two of the other twenty-six skilled tradesmen. (Ex. Resp-53)
75. The complainant rejected an overtime assignment for a Wednesday night in late April 1997. His name came to the top of the list two days later and he earned three hours of overtime work at that time. (Tr. 99, 102-03) In accordance with the rotation system, other carpenters were given overtime to complete the job on subsequent days. (Ex. CHRO-81; Tr. 102-05)
76. On April 25, 1997, the complainant, through his union, filed another grievance against the respondent, alleging that he had been denied equal opportunities to work overtime. Although the grievance alleges “harassment” and “partiality” as factors motivating the respondent, it contains no reference to the complainant’s alleged disabilities. Like the grievance filed earlier that month, this grievance was denied at all steps. (Exs. Resp-55, CHRO-84; Tr. 264, 300)
77. According to the respondent’s records for overtime assignments from January through July 1997, the complainant, who had been out of work for at least two months so far that year, had earned only three hours of overtime. Of the sixteen other skilled tradesmen, seven had earned fewer than ten hours of overtime to date. (Ex. Resp-54)
A. Does this tribunal have jurisdiction to adjudicate all of the claims set forth in the complaint, or only those for which the commission investigator found reasonable cause?
B. Did the respondent discriminate against the complainant by denying him a promotion to the position of carpenter foreman in 1997 because of his alleged disabilities?
C. Did the respondent harass the complainant from 1995 until June 24, 1997
because of his alleged disabilities?
D. Did the respondent discriminate against the complainant by denying him overtime opportunities because of his alleged disabilities?
E. Did the respondent deny the complainant reasonable accommodations for his alleged disabilities?
F. Did the respondent retaliate against the complainant because he opposed the respondent’s allegedly discriminatory conduct?
DISCUSSION AND CONCLUSIONS
1. A. Jurisdictional challenge
According to the respondent, the commission investigator assigned to investigate the allegations of the complaint in 1997 found no reasonable cause as to several of the issues raised by the complainant. Therefore, claims the respondent, this tribunal has no jurisdiction over those issues.
I disagree with the respondent.
On July 23, 1998, pursuant to General Statutes §46a-84(a) and §46a-54-77 of the regulations, the investigator certified the complaint for public hearing. In her certification she stated,
. . . after preliminary investigation, I determined that there was reasonable cause
for believing that an unfair practice was committed as alleged in this complaint.
The commission has endeavored to eliminate the unfair practice complained of by
conference, conciliation and persuasion. Such efforts have failed on or about July
23, 1998 to eliminate such practices. I, therefore, certify to you the complaint and
the results of my investigation, nunc pro tunc.
The certification, with its “boilerplate” language, makes no distinction among the various claims comprising the complaint; it merely certifies “the complaint.”
Connecticut statutes and regulations consistently and repeatedly refer to “the
complaint.” For example, General Statutes §46a-83 requires the aforementioned
investigation of “the complaint.” If the investigator finds reasonable cause
to believe a discriminatory practice has occurred, and conciliation has failed,
she would certify “the complaint” for formal adjudicatory proceedings under
§46a-84(a). As recently noted in a ruling on a similar claim, “[w]hen the
words of a statute are plain and unambiguous, one need look no further than the
words themselves, because one can assume the language expresses the legislature’s
intent. . . . The language does not become ambiguous merely because the parties
disagree as to its meaning.” (Citations omitted.) Commission on Human
Rights and Opportunities ex rel. Perry v. City of Ansonia, Ruling on Motion to
Dismiss, CHRO No. 9730481 (December 20, 1999), The repeated use of the term “the
complaint,” rather than any reference to portions of the complaint,
demonstrates that the legislature determined that the entire complaint is to be
certified and adjudicated as long as there is any finding of reasonable cause;
if the legislature intended otherwise, it would have spoken accordingly. There
is no legal basis for certifying or adjudicating only portions of the complaint,
and the investigator correctly certified the entire complaint.
As this tribunal has consistently recognized, General Statutes §46a-84(b) authorizes the hearing officer or human rights referee only to conduct a “de novo hearing on the merits of the complaint.” (Emphasis added.) The parties must raise issues and present facts anew to the human rights referee; the proceeding is not an appeal of what occurred prior to certification and the referee is not limited or bound by the investigator’s findings. See Commission ex rel. Perry v. City of Ansonia, supra, 4-7, and other hearing officer and human rights referee decisions cited therein, all of which find that the presiding officer has no authority to sever from the complaint allegations for which the investigator found no reasonable cause; see also Commission on Human Rights and Opportunities ex rel. Massa v. Electric Boat Corp., Ruling on Motion in Limine, CHRO No. 9840265 (March 6, 2000).
Accordingly, all of the discriminatory practices alleged in the complaint remain before this tribunal.
2. B. Failure to promote
The complainant alleges that the respondent’s refusal to promote him to
carpenter foreman in 1997 constitutes unlawful discrimination on the basis of
disability, in violation of the ADA and FEPA. The ADA prohibits covered
employers from discriminating against an otherwise qualified employee “because
of the disability of such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C.
§12112(a).According to FEPA, it is a discriminatory practice
. . . for an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or 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. General Statutes §46a-60(a)(1).
Federal courts generally analyze disability discrimination claims using the three-step, burden-shifting paradigm established for Title VII employment discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and its progeny. See, e.g., Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc., 198 F.3d 68 (2nd Cir. 1999); Borkowski v. Valley Central School District, 63 F.3d 131 (2nd Cir. 1995). Under this approach, the complainant bears the initial burden of proving a prima facie case, which gives rise to a presumption of discrimination. The complainant’s burden is not an onerous one and, in fact, has been described as “de minimis.” Dister v. Continental Group, 859 F.2d 1108, 1114 (2nd Cir. 1988); Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209, 225 (1996). If the complainant succeeds, the burden of production shifts to the respondent to articulate, but not prove, a legitimate, non-discriminatory reason for the employment decision. Should the respondent offer such reason, the presumption disappears and the burden shifts again to the complainant, who must prove by a preponderance of the evidence that the proffered reason is actually a pretext for prohibited discrimination. The complainant retains at all times the ultimate burden of persuasion on the critical issue—whether the employment decision was motivated, at least in part, by discriminatory intent. St. Mary’s Honor Center v. Hicks, 5509 U.S. 502, 507-08 (1993); Heyman v. Queens Village, supra, 198 F.3d 72.
In general terms, a prima facie case enables the factfinder to conclude, absent any further explanation, that it is more likely than not that the employment action was the result of unlawful discrimination. The elements of a prima facie case need not rigidly follow those set forth in McDonnell Douglas; they should be flexible, based on the factual scenario presented. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, n.6 (1981); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 108, n.20 (1996). To prove his prima facie case under both state and federal law, the complainant must demonstrate, by a preponderance of the evidence, that (1) he was disabled within the meaning of the applicable statute; (2) he was qualified to perform the essential functions of the position with or without reasonable accommodation; (3) he was subject to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination on the basis of disability. Ennis v. Nat’l Ass’n of Business & Educational Radio, Inc., 53 F.3d 55, 57-58 (4th Cir. 1995); Dister v. Continental Group, supra, 859 F.2d 1114; Fink v. Kitzman, 881 F.Supp. 1347, 1373-74 (N.D. Iowa 1995); Commission on Human Rights and Opportunities ex rel. Canfield-Knowles v. Gilman Bros., CHRO No. 9240221, p. 12 (August 8, 1995).
(1) As a threshold requirement, the complainant must demonstrate that he has a disability that is protected by the applicable statutes. Reeves v. Johnson Controls World Services, Inc. 140 F.3d 144, 154 (2nd Cir. 1998); Worthington v. City of New Haven, 1999 WL 958627 (D.Conn.). This is true not only for the failure-to-promote claim, but for all of the disability-based claims addressed in this decision. According to the ADA and its implementing regulations, a person is disabled if he (1) has a physical impairment that substantially limits one or more of his major life activities, (2) has a record of such impairment, or (3) is regarded as having such impairment. 42 U.S.C. §12102(2); 29 CFR §1630.2(g)(1); Sutton v. United Air Lines, Inc. 527 U.S. 471, 119 S.Ct.2139, 2144 (1999); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2nd Cir. 1996). In assessing whether the complainant was disabled, one must look at his condition at the time of the alleged discriminatory action. Heyman v. Queens Village, supra, 198 F.3d 73.
A physical impairment, according to the federal regulations, is “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.” 29 C.F.R. §1630.2(h)(1). The respondent does not dispute that the complainant’s heart condition and diabetes are impairments under this definition. (Respondent’s post-hearing brief, pp. 23-24) The evidence also demonstrates that the complainant suffered permanent partial injuries to his left leg in March 1994 and to his left shoulder, cervical spine, and lumbar spine in June 1997. These, too, constitute physical impairments.
Not every impairment, however, qualifies as a disability protected by the ADA. Even though the complainant unquestionably suffers from various impairments, he must also demonstrate that one or more of his impairments substantially limits a major life activity. This involves a fact-specific, individualized inquiry, for a given impairment may be substantially limiting in one circumstance and not in another. Sutton v. United Air Lines, Inc., supra, 119 S.Ct. 2147. The term “major life activities” refers to functions “such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. §1630(2)(i); Heyman v. Queens Village, supra, 198 F. 3d 72-73. The words “such as” suggest that this list is illustrative, rather than exclusive, and thus courts have recognized standing, sitting, lifting, bending, and reaching as major life activities; see, e.g., Colwell v. Suffolk City Police Dept. 158 F.3d 635, 644 (2nd Cir. 1998). The commission alleges that the complainant is substantially limited in the major life activities of caring for himself, breathing, seeing, eating, sitting, standing, bending and reaching. The commission does not, as the respondent mistakenly believes, allege that the complainant is substantially limited in the major life activity of working. (Commission’s post-hearing brief, p. 16)
An individual is substantially limited in a major life activity other than working if he is
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. §1630.2(j)(1). The determination whether an individual is substantially limited in a major life activity must also be made with reference to measures that mitigate the person’s impairment. Sutton v. United Air Lines, Inc., supra, 119 S.Ct. 2149; Muller v. Costello, 187 F.3d 298, 312 (2nd Cir. 1999). The commission exhaustively chronicles the complainant’s impairments and identifies what it believes are the major life activities affected. There is no reason to doubt the complainant’s testimony that, due to his medical impairments, climbing stairs or ladders, especially while carrying materials, is a taxing activity. However, climbing stairs or ladders is not a major life activity. Piascyk v. City of New Haven, 64 F. Supp. 2d 19, 26 (D.Conn. 1999). The record also shows that the complainant, even with the assistance of medication, had—and continues to have—difficulty performing major life activities such as breathing, standing, bending, reaching, and caring for himself. But none of these activities has been so severely impaired so as to impede him either at work or outside of work, and the commission’s assertion that “[t]he totality of Complainant’s multiple impairments and the pain caused by them substantially limits his major life activities” (commission’s post-hearing brief, p. 16) is unsupported by evidence demonstrating the severity of the impairments or comparing the complainant to the average person in the general population. Accordingly, I find that under federal law the complainant was not disabled prior to June 25, 1997. On the other hand, in 1997, following two work-related injuries, the complainant was permanently restricted from lifting. Only then did he become substantially limited in that particular major life activity.
Although the complainant is not disabled under the ADA (at least not before June 25, 1997), I am not precluded from finding him disabled under state statutes. While this tribunal generally follows federal precedent in enforcing 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 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 9, 1995) (no need to resort to ADA analysis where complainant clearly met state standard). Here it is appropriate to look to the provisions of the more protective state law. Indeed, the broader definition of disability under state law yields a different result than the federal definition. 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 . . . .” Similarly, §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 of the state statutes defines the term “chronic,” nor is the term used in the federal statutes. When left undefined, the words of a statute are to 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.) 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 on Human Rights and Opportunities, 1997 WL 275578 *4 (Conn. Super.) The complainant has suffered from heart disease, hypertension, and diabetes for many years, beginning well before the relevant incidents at issue here. Although his symptoms are controlled by medication, they are not curable. In fact, he will need to take medication for the remainder of his life. As determined by several doctors, the complainant’s neck, shoulder, and back symptoms, resulting from his June 25, 1997 work-related injuries, likewise are permanent. In sum, the medical evidence supports a finding that the complainant suffers from chronic impairments resulting from bodily injuries, organic processes, or illnesses. Accordingly, he is disabled as a matter of state law. (2) Having demonstrated that he is disabled, at least as a matter of state law, the complainant next must demonstrate that he is qualified. 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 [he] 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. Under the federal regulations a person is “qualified” if he “satisfies the requisite skill, experience, education, and other job-related requirements of the position [he] . . . desires,” and “with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. §1630.2(m) (Emphasis added.) The determination of whether a person is qualified requires an individualized, fact-specific assessment focusing on the time of the alleged discriminatory action—or, in this case, several different actions. Worthington v. City of New Haven, supra, 1999 WL 958627 *9, citing Castellano v. City of New York, 142 F.3d 58, 67 (2nd Cir. 1998). 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). Identification of essential functions requires a fact-specific inquiry into, among other things, (1) the employer’s judgment as to what functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants; (3) the amount of time spent performing that function; (4) the consequences of the incumbent not performing those functions; (5) the terms of a collective bargaining agreement; (6) the work experience of past incumbents in the position; and (7) the present work experience of incumbents in similar jobs. 29 CFR §1630.2(n)(3); Borkowski v. Valley Central School District, supra, 63 F.3d 140; Motta v. Meachum, 969 F.Supp. 99, 114 (D.Conn. 1997). The carpenter foreman job is not merely an administrative position. It is a hands-on job, no less physically demanding than that of a carpenter. According to the written job description and the unchallenged testimony of several witnesses, the foreman is expected to help carpenters at their job sites, stay late to finish incomplete work, and perform an extensive amount of carpentry work on his own. Thus, the essential physical functions of the foreman position mirror those of a carpenter. In order to perform these functions, the foreman, like all carpenters, must be able to lift and move heavy materials. This requirement alone bears far more than a mere marginal relationship to the job; it is, rather, the critical underpinning of nearly all of the foreman’s physical tasks. At the time Montanez retired and until June 25, 1997, the complainant met the physical requirements of the foreman position, by virtue of his carpenter skills and as demonstrated by his passing score on the 1995 foreman examination. As an experienced, and by all accounts proficient, carpenter for almost three decades, he unquestionably had all of the knowledge and physical skills needed of a foreman. He was qualified—and was able—to perform all of the essential functions of his carpenter position without reasonable accommodation and, by inference, he would not have needed any accommodation for the physical demands of the foreman position. As discussed below, however, following his June 1997 injury, he was permanently restricted from lifting more than fifteen pounds and thus he could no longer satisfy the physical requirements of either position. Furthermore, there are certain subjective, intangible requirements for the foreman position. These, too, are essential functions of the job. In particular, the foreman must have proven interpersonal and communication skills and a demonstrated ability to train, motivate, and supervise employees. Such qualifications would not be affected one way or the other by the complainant’s physical condition.Even if the respondent had decided to refill the position in 1997, the evidence shows that the complainant lacked these critical attributes. Furthermore, the complainant has presented no evidence that he was more qualified in this fashion than Kennison, his purported competitor. The complainant’s seniority is the sole basis for his assertion that the position should rightfully have been given to him, an argument that is unsupported by the applicable collective bargaining agreement. Both Healy and Texidor found the complainant to be unreliable, argumentative, and lacking in supervisory and interpersonal skills—all qualities patently undesirable in a foreman. Various job evaluations similarly reveal that the complainant had weak interpersonal skills and did not always respond well to supervision. The complainant’s demeanor on the stand, his evasive responses, his apparently selective memory, and his argumentative propensities all lend credence to the respondent’s position. Both the respondent’s evidence and common sense underscore that reliability is an essential qualification for the foreman position. Much to the consternation of his superiors, the complainant was discovered away from the assigned job site on at least four occasions in 1996 and 1997, clearly warranting managerial oversight. Documented attendance problems and subsequent warnings (see FF 30) likewise justify the respondent’s concerns that the complainant could not satisfy this particular requirement of the foreman position. See Langner v. The Stop & Shop Supermarket Company, 2000 WL 158325 *5-6 (Conn. Super.) I find that the complainant satisfied the physical, but not the supervisory/interpersonal, criteria for the foreman position until June 25, 1997. After his debilitating injury and the subsequent medical limitations, the complainant ceased even to be physically qualified to perform many of the essential functions of the foreman position. Assuming, for the sake of argument, that the complainant had the supervisory/interpersonal skills for the position, the inquiry must shift to whether any reasonable accommodation was available after his injury.
When a disabled employee cannot perform the essential functions of a job without reasonable accommodation, this tribunal must then determine whether there exists a reasonable accommodation which would enable him to do so. The ADA defines “reasonable accommodations” as those modifications to the workplace which allow an individual with a disability to perform the essential functions of a job or to enjoy the same benefits and privileges as an employee without a disability. 29 C.F.R. §1630.(2)(o). Reasonable accommodations may include modifying the physical attributes of the workplace, job-restructuring, part-time or modified work schedules, or reassignment to a vacant position. 42 U.S.C. §12111(9); 29 C.F.R. §1630.2(o)(2)(ii). The complainant has the initial burden of production as to the existence of a reasonable accommodation. “It is enough for the [complainant] to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” If the complainant satisfies this burden, then the employer bears the burden of showing that the identified accommodation, in fact, is not reasonable 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 (1991). Whether a requested accommodation is reasonable is determined on a case by case basis. Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2nd Cir. 1999). At the outset, I must emphasize that prior to June 25, 1997 the complainant would not have needed any accommodations to perform the physical duties of a foreman, just as he did not need them to perform his carpenter job. Nevertheless, the complainant has identified two accommodations he believes are reasonable: the ability to delegate physically demanding responsibilities and the provision of a helper on a more-or-less full time basis. Because the complainant was able to perform his physical duties without accommodation prior to his debilitating injury, the proposed accommodations here must be considered only in the post-injury context, and then only assuming he was otherwise qualified.
The complainant appears to misconstrue the responsibilities of the carpenter foreman. Delegating the heavy work, as the complainant imagines he would do, is not an option. As stated above, the essential functions of the foreman’s job include assisting the carpenters, performing carpentry duties on his own, and, when necessary, staying late to complete jobs left unfinished by the end of a carpenter’s union-prescribed work day. Delegating these functions would significantly vitiate the foreman position; as a matter of law it is an unacceptable option because restructuring a job to eliminate or transfer its essential functions is inherently not reasonable. Gilbert v. Frank, supra, 949 F.2d 642-44 (individual whose physical condition precluded him from engaging in heavy lifting, where heavy lifting is an essential function, need not be accommodated by transferring the lifting duties, that is, the essential functions, to other individuals); see also Rochford v. Town of Cheshire, 979 F. Supp. 116, 121 (D.Conn 1997). For the same reasons, provision of a full-time helper is not a reasonable accommodation either if the helper assumes the job’s essential functions. Borkowski v. Valley Central School District, supra, 63 F.3d 140; Gilbert v. Frank, supra, 949 F.2d 644. As the federal district court stated in Hershey v. Praxair, “It is not reasonable to require an employer to have two people doing one person’s job in the name of accommodation. Assistance is one thing, but performing a significant portion of the essential functions or another person’s job is another thing altogether.” 969 F. Supp. 429, 435 (S.D. Texas 1997). See also Cochrum v. Old Ben Coal Co., 102 F.3d 908,. 912 (7th Cir. 1996) (hiring a helper to perform the essential functions of the plaintiff’s job is not a reasonable accommodation). In conclusion, the complainant was qualified, without the need for accommodation, to perform the essential physical duties of a carpenter foreman until June 25, 1997. After that date, no reasonable accommodations existed that would have allowed the complainant to perform those duties. Even before his debilitating injury, however, the complainant lacked the essential intangible requirements for the foreman position. Accordingly, when considering both the physical and supervisory requirements of the position, I conclude that at no time was the complainant qualified to become carpenter foreman. Nevertheless, even if he was qualified prior to June 1997, his claim must fail for other reasons. Therefore, I continue my analysis of the complainant’s prima facie case. (3) To satisfy the third prong of his prima facie case, the complainant must demonstrate that he suffered an adverse employment action. Here he has demonstrated that he was not promoted to an apparent vacancy. Failure to promote has been recognized as an adverse employment action and I conclude that the complainant has satisfied the third element of his prima facie case. Pomilio v. Wachtel Lipton Rosen & Katz, 1999 WL 9843 *8 (S.D.N.Y. 1999).
(4) To satisfy the final element of his prima facie case, the complainant must present evidence of circumstances that give rise to an inference of discrimination based on his disability. Such circumstances may include, but are not limited to, comments about others with disabilities, more favorable treatment of a non-disabled employee, or criticism of an employee’s performance in terms related to his disability. See Denault v. Connecticut General Life Ins. Co., 1999 WL 549454 *6 (Conn. Super.), quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (1994).The complainant has presented little evidence of comments directed toward the disabilities of others. The sole exception appears to be in the workplace banter, where the skilled tradesmen, including the complainant, would joke about others’ disabilities (e.g., Montanez’s deformed hand) and work habits. Such behavior does not support the fourth prong of the prima facie case.The complainant argues that Kennison’s appointment as temporary foreman likewise is evidence of discrimination against the complainant. The respondent is correct in its objections that no such appointment was made and the position was never filled. The evidence, however, reveals that, for all intents and purposes, Healy did have the able-bodied Kennison serve as ad hoc foreman (albeit without the foreman’s pay), at least for a brief time after Montanez retired. (I have little doubt that had the position been filled, it would have been by Kennison, not the complainant.) Nevertheless, there is little, if any, basis to link Healy’s choice with a discriminatory motive. Because there were no formal procedures or requirements for making a temporary assignment, the more logical reason—and one well supported on this record—is that Healy liked and had confidence in Kennison, while he had a strained and difficult relationship with the complainant.There is no question that the complainant encountered sporadic criticism of his performance couched in terms of his disability, although neither the complainant nor the commission were able to quantify the number of incidents. Certainly, Texidor’s bullying reminders that the complainant should retire if he was not “100 percent” suggest hostility toward disabled workers and lend support to the prima facie case. However, Texidor’s swagger aside, the fact of the matter is that his assertions are accurate reflections of the respondent’s policy. On the other hand, some of the crude and disdainful remarks made to or about the complainant simply were not related to his disability (e.g., Healy’s reference to the complainant as a “piece of shit,” Montanez’s and Kennison’s comments about his girth, Healy’s snide wish for the complainant’s demise). Statements by Montanez and Kennison that the complainant should never become foreman, because he was incapable of some of the harder jobs, likewise support the complainant’s argument. However, neither Montanez nor Kennison was responsible for the decision not to promote the complainant or the decision not to refill the vacant foreman position. Nor are their random comments the type of thoughtful assessment upon which personnel decisions are based. I would find it utterly unbelievable that they had any influence upon Travers’ recommendation not to fill the position or upon her superiors’ formal agreement with that recommendation. Even assuming that the workplace was rife with discriminatory animus toward the complainant because of his infirmities, on this record there is no logical reason to impute improper motives existing at the low- and mid-management levels to the ultimate decision makers. The individuals directly involved in the decision not to fill the foreman position, Travers and those above her in the hierarchy, were not identified as making any discriminatory remarks, nor is there any evidence that discriminatory remarks by others influenced their decision. Healy is the only supervisor who had any contact with Travers, but he could not have influenced her decision because he was advocating to fill the position, not to eliminate it.
Because the allegedly discriminatory comments were not made by the decision makers or those who influenced the decision makers, they do not rise to the level of overt discrimination as alleged by the commission in its post-hearing brief. Nevertheless, they may collectively suffice to satisfy the less demanding standards of the prima facie case.
In her testimony and in her October 27, 1997 memorandum to Wardlaw, the respondent’s executive director, Travers thoroughly and convincingly articulated sound business reasons for not filling the foreman position after Montanez retired. In response to that memorandum, Wardlaw agreed to close the position. However, the memorandum also states that filling the position at that time might compromise the case pending with the commission (and now before this tribunal). It is important to note that this memorandum was written at least six months after Montanez retired and after the respondent first articulated the imprudence of refilling the position. As such, it cannot, by itself, reflect her thinking at the time she first decided the position should not be refilled, and therefore it is not the “smoking gun” the complainant would have me believe. Nevertheless, the memorandum, like the cumulative offensive comments, will at least support an inference of discrimination for the purpose of the fourth element of the prima facie case.
Assuming for the sake of argument that the complainant has made out a prima facie case and thus raised a presumption of discrimination, the burden of production shifts to the respondent to rebut the presumption by articulating a legitimate, non-discriminatory reason for its decision. Ann Howard’s Apricots Restaurant v. Commission on Human Rights and Opportunities, supra, 237 Conn. 225. The respondent has proffered a logical and persuasive justification: at the time Montanez retired, the ongoing reduction in housing units and the concomitant reduction in staff did not warrant the hiring of a new foreman, and thus the respondent chose not to fill the position. Other jobs, including that of painting foreman, were similarly eliminated by attrition, and the foreman duties subsequently were handled by Healy himself. Six or seven months later, as confirmed in correspondence between Travers and Wardlaw, the rationale for the respondent’s decision remained unchanged.
Once the respondent has articulated a legitimate, non-discriminatory reason, the burden returns to the complainant to prove that the reasons offered by the respondent were not its true reasons but were a pretext for unlawful discrimination. Wroblewski v. Lexington Gardens, 188 Conn. 44, 61 (1982); Langner v. The Stop & Shop Company, supra, 2000 WL 158325 *7, 11.
The complainant cites to Travers’ October 27, 1997 memorandum as evidence that the business decision not to refill the foreman position was merely a pretext for its desire not to promote the complainant. According to the complainant, Travers’ concern that filling the position would somehow compromise the respondent’s position in the instant claim reveals that the respondent was really motivated by other reasons—to wit, precluding the complainant from applying for and possibly obtaining the foreman job. Accepting this argument would require me to find that there was a need, after all, to fill the position. Worse, I would have to find that the respondent was willing to compromise its own business responsibilities merely to spite the complainant. The record does not allow me to agree with the complainant.In determining whether a proffered reason is pretext, a tribunal may consider whether the decision maker was engaged in the discriminatory comments or activity or was tainted in the decision making process by those who were. Denault v. Connecticut General Life Insurance Company, supra, 1999 WL 549454 *12. Here the record shows that Travers herself made no discriminatory remarks and there is no indication that those who did had any influence on her recommendation not to fill the position. Texidor, whose motivation is never clear on this record, testified that he, too, believed there was no need to refill the position, but there is no evidence that his opinion or his motives were ever shared with Travers. Healy, of all people, might have been in the most influential position as the complainant’s direct supervisor, but his goal—making Kennison foreman—was directly at odds with that of Travers.The main purpose of Travers’ memorandum was simply to advise her superiors how to approach a business decision in an informed and sensible manner. It is precisely the type of communication one would expect from a personnel officer to her superior. The fact that she also offers, almost as an aside, an additional justification for not refilling the foreman job does not detract from the principal message, which is overwhelmingly legitimate and non-discriminatory.A critical issue is whether a discriminatory motive was a factor at the time the employment decision was made. Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 205 (1991). Here, it is important to keep in mind that Travers initially made the determination not to fill the position in April 1997. Her memorandum to Wardlaw was written more than six months later, and four months after this complaint was initiated. Any discriminatory motive one might glean from her cryptic reference to the case before the commission would, therefore, deserve little if any weight vis-à-vis the far-earlier events.
The complainant has failed to carry his burden to demonstrate that the proffered reason was pretext. The record contains no persuasive evidence to belie the respondent’s explanation. It is both true and indisputably prudent from a business standpoint. Nevertheless, assuming that the decision not to refill the position was fabricated merely to thwart the complainant’s professional advancement, the complainant still must show that the pretext is designed to veil unlawful discrimination. Merely demonstrating that the proffered reason is false is insufficient to prove that the true motive is the one argued by the complainant. As explained by the Second Circuit Court of Appeals, [d]iscrimination does not lurk behind every inaccurate statement. Individual 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), cert. denied, 522 U.S. 1075 (1998), quoted in Langner v. The Stop & Shop Supermarket Company, supra, 2000 WL 158325 *8. Even if the respondent’s articulated reason were not a valid one, the words of Fisher echo loudly throughout the facts of this case. If there were any inappropriate motives hiding behind the challenged decision, they would be linked not to the complainant’s disabilities but to the “unbecoming or small-minded” reasons arising from the complainant’s difficult relations with his peers and his supervisors. The complainant has failed to present sufficient evidence to permit me to disbelieve the respondent’s articulated reason, or to conclude that unlawful discrimination was the true motive behind the respondent’s decision not to refill the foreman position. Accordingly, the complainant has not carried his ultimate burden and his claim that he was wrongfully denied promotion to the foreman position must fail.
3. C. Harassment
The complainant alleges that the respondent harassed him because of his disabilities, in violation of both the ADA and FEPA. Specifically, he alleges that he was assigned more difficult tasks than other carpenters, overzealously scrutinized by his superiors, and verbally maligned by his superiors and co-workers. In short, the complainant describes what purports to be a hostile work environment.
Analysis of a hostile work environment claim under the ADA—and thus under FEPA—mirrors the approach used in Title VII cases. See, e.g., Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999); Hendler v. Intelcom USA, Inc., 963 F. Supp. 200, 207-08 (E.D.N.Y 1997). To establish a prima facie case for harassment based upon disability, the complainant must demonstrate that (1) he is disabled under the applicable statutes; (2) he was the subject of harassment; (3) the harassment was based on his disability; and (4) the harassment affected a term, condition, or privilege of his employment. Cosgrove v. Sears Roebuck & Co., 9 F.3d 1033, 1042 (2nd Cir. 1993); Zale v. Sikorsky Aircraft, No. 3:97CV00125, Conn. L. Trib., Vol. 25, No. 47, p. 1388 (D. Conn., Nov. 29, 1999); Pomilio v. Wachtell Lipton Rosen & Katz, 1999 WL 9843 *5 (S.D.N.Y.). As determined in Conclusion B above, the complainant is, in fact, disabled under state law. Furthermore, he appears to have been the subject of some sort of offensive conduct by others in the workplace. Determining whether that behavior gives rise to an actionable claim of harassment requires scrutiny of the third and fourth prongs of the prima facie case. To succeed in his harassment claim, the complainant must not only show that the offensive behavior is based on his disability, but he must demonstrate that the behavior creates an objectively hostile or abusive work environment and that he subjectively perceived the work environment to be abusive. The harassment must be “so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); Hendler, supra, 963 F. Supp. 208; see Harris v. Forklift Systems, Inc. 510 U.S. 17, 21-22 (1993). Thus, isolated remarks or occasional episodes of harassment will not merit relief; the incidents must “occur in concert or with a regularity that can reasonably be termed pervasive.” Tomka v. Seiler Corp. 66 F.3d 1295, 1305 n.5 (2nd. Cir. 1995); Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2nd Cir. 1989). The alleged comments, at least those of which he was aware, neither separately nor together are of sufficient severity or regularity to sustain the claim. The complainant has failed to offer evidence that his assignments were more difficult than those given to the other carpenters. On the contrary, the respondent’s witnesses testified that on any given day, one carpenter might have an easier or more difficult assignment than other carpenters, but overall, the complainant’s assignments were no different than those given to others. The complainant’s own witness, Sonia Correa, corroborated the respondent’s testimony. The complainant argues that Healy’s and Texidor’s spot-checks at his work sites and frequent calls on the walkie-talkie to ascertain his whereabouts constitute harassment. I disagree. First, as supervisors, this was their prerogative, one which they also exercised with regard to other employees and not only the complainant. Second, although the testimony is sketchy and occasionally contradictory, one can conclude that the complainant was called no more frequently than any other worker. In either event, there certainly is no evidence that the respondent’s vigilance was related to the complainant’s disabilities. Even if the complainant were scrutinized more frequently than his peers, increased oversight seems reasonable in light of his attendance problems and absence from the job sites.Most significantly, the complainant contends that he was scorned and ridiculed by his peers and immediate supervisors, and that their comments were motivated by his disabilities. (He also claims that they were made in retaliation for his complaints about Montanez’s promotion, a claim discussed below in Conclusion G.) The evidence undercuts this argument for several reasons. The complainant himself perceived at least some of the comments as jokes, and he responded with jokes of his own, including comments about Montanez’s deformed hand. The record also reveals that some of the offensive comments were related not to the complainant’s disabilities, but to his weight, his work habits and, most of all, his persistent complaining and nagging. He did not appear to command the respect of some of his peers and his superiors, and it is more than obvious that frustration and annoyance prompted much of the disparagement.Furthermore, he has failed to demonstrate that the offensive conduct was so severe or pervasive that it adversely affected his work environment. To establish the severity or pervasiveness of the offensive conduct, the complainant must address factors such as the frequency, severity and threatening or humiliating nature of the conduct and whether it unreasonably interferes with his work performance. The abusiveness of the working environment must qualify both objectively (that is, to a reasonable person) and subjectively (that is, to the complainant himself). Harris v. Forklift Systems, Inc., supra, 510 U.S.23; Silk v. City of Chicago, supra, 194 F.3d 804.
Although some of the comments might make a reasonable person feel abused or humiliated, the point of the subjective assessment is that the complainant must demonstrate his own subjective response; he has failed to do so here. See Ragusa v. Teachers Insurance and Annuity Assn., 1998 WL 483461 *6 (S.D.N.Y.) The complainant has produced no evidence demonstrating how the ostensibly offensive comments made him feel—in fact, he was not even aware of some of the comments described on the record. There is no evidence that the comments made him feel uncomfortable, humiliated, or intimidated or, perhaps even more important, that they adversely affected his work. At least some of the comments comprised typical workplace banter, in which he, too, participated. In short, the evidence is entirely insufficient to allow me to characterize the conduct as subjectively abusive.The complainant has failed to prove that the allegedly hostile actions and comments, even when viewed cumulatively, were so severe or so pervasive as to permeate the workplace and adversely affect his ability to perform his job. In fact, they appeared to have little or no impact at all. The allegation of harassment is simply a convenient tool for the complainant to seize in protest of the respondent’s daily and long-term decisions that do not favor him. However, the complainant has failed to demonstrate that he was harassed because of his disabilities and, accordingly, he cannot sustain his harassment claim.
4. D. Denial of overtime
5. The complainant believes he was given fewer overtime assignments than his co-workers because of his disabilities. The complainant’s allegations focus on a single incident in April 1997 when, after rejecting an overtime assignment on a Wednesday, the complainant came up in the overtime rotation two days later for a three-hour assignment. He performed his assigned work that Friday and the job was finished during the weekend by other carpenters who accrued more time than did the complainant. 6. The record provides no convincing support for this claim. First of all, the overtime assignments in 1997, as in other years, were made on a rotational basis established by the collective bargaining agreement between the respondent and the complainant’s union. The respondent maintains a list of the carpenters and simply follows the list in order. If a carpenter accepts an assignment, the next assignment is offered to the next person on the list. If he declines, his name goes to the end of the list and the next carpenter is offered the assignment. The respondent correctly followed this procedure in the April situation. Once the complainant rejected the Wednesday night assignment, his name went to the bottom of the list, only to return to the top two days later. Had he accepted the Wednesday assignment, his name might have resurfaced on a different day, with the opportunity to work more hours. 7. This strict procedure is designed to prevent the respondent from making any arbitrary decisions, and there is no evidence in this record even to suggest that the procedure was somehow applied in a manner that would adversely affect the complainant. Nevertheless, the distribution of assignments can vary over time, not due to choices the respondent makes, but depending on how often each carpenter accepts or rejects an assignment and how long it takes to complete the work. Clearly, in some years, the complainant received far more hours than most of the other carpenters. Even in 1997, the complainant was not alone in his limited overtime; eight out of the remaining seventeen carpenters earned less than ten hours of overtime in the first seven months of the year. The latter situation is even less surprising when one bears in mind that the complainant was out of work for almost two months, from April 29 until June 23.
The single isolated incident in April does not support the complainant’s
allegation that overtime was assigned in a discriminatory fashion. The bigger
picture, over a period of years, further vitiates his claim. I find that the
respondent distributed overtime in a fair and non-discriminatory fashion.
Accordingly, I find in favor of the respondent on this issue.
8. E. Denial of reasonable accommodation
In addition to the inquiry into accommodations posed in the prima facie case discussed above in Conclusion B, the ADA allows a separate cause of action for failure to provide reasonable accommodation. According to the ADA, unlawful discrimination includes
. . . (A) 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 the covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.
42 U.S.C. §12112(a)(5).
Although FEPA does not explicitly set forth a duty by the employer to provide reasonable accommodation, I find such a requirement to be implicit within the state statutes. The Connecticut anti-discrimination statutes are intended to be at least 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 (1973). Thus, failure to impose upon state actions so prominent a federal requirement as the duty to reasonably accommodate would vitiate the remedial purposes of our anti-discrimination statutes. Commission ex rel. Grant v. Yale-New Haven Hospital, supra, 25. For example, in Silhouette Optical Ltd. v. Commission, Conn. Super., judicial district of Hartford-New Britain at Hartford, Docket No. CV-92-520590 (January 27, 1994)(10 Conn. L. Rptr., p. 599), 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 accommodations. See also Ezikovich v. Commission on Human Rights and Opportunities, 1998 WL 57767 (Conn. Super.). Other decisions by this tribunal also conclude 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 ex rel. Grant v. Yale-New Haven, supra; 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).
The complainant identifies two distinct situations where the respondent allegedly failed to provide reasonable accommodations. First, the respondent had a pervasive history of resisting or failing to accommodate the complainant’s requests for part-time or full-time assistance—particularly with moving and lifting heavy materials—up until late June 1997. Second, the respondent failed to provide accommodations that would allow the complainant to return to work after his June 1997 injuries and his ensuing medical restrictions. An employer’s obligation to provide reasonable accommodation means that the employer must implement changes to its procedures, facilities, or performance requirements that will permit an individual to perform his job’s essential functions. Burch v. Coca-Cola Co., 119 F.3d 305, 314 (5th Cir. 1997); Commission ex rel. Grant v. Yale-New Haven Hospital, supra, 26. Whether something constitutes a reasonable accommodation is necessarily fact-specific and must be decided on a case-by-case basis. Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2nd Cir. 1999). Typical accommodations include modification of the physical attributes of the workplace, shifting of non-essential or marginal duties, adjusted work schedules, or reassignment to an appropriate vacant position. 42 U.S.C. §12111(9)(A); C.F.R. §1630(o)(2)(ii); see Wernick v. Federal Reserve Bank, 91 F.3d 379, 384-85 (2nd Cir. 1996). The list set forth in the ADA and the federal regulations is non-exclusive and other reasonable accommodations could be appropriate for specific situations. Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2nd Cir. 1997). According to decisions of the Second Circuit Court of Appeals, the employee bears the burden of proving the existence of an accommodation that permits him to perform the job’s essential functions. Initially, he need only identify plausible accommodations, the costs of which, facially, do not clearly exceed their benefits. If the employee satisfies this burden, then the employer bears the burden of showing that the identified accommodation is not reasonable or would cause undue hardship. Borkowski v. Valley Central School District, supra, 63 F.3d 138-39; Gilbert v. Frank, supra, 949 F.2d 642. The complainant may establish a prima facie case by showing that (1) he was disabled within the meaning of the applicable statute; (2) the respondent had notice of his disabilities; (3) with reasonable accommodations he could have performed the essential functions of the position held or sought; and (4) the respondent refused to make such accommodations. Mitchell v. Washingtonville Central School District, supra, 190 F.3d 6; Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2nd Cir. 1997). The first two prongs of the prima facie case have been thoroughly addressed above and no reiteration is warranted here. I will address the third and fourth prongs both in the pre-June 1997 context and in the post-June context.
(1) The complainant testified at length that, prior to his injuries in late June 1997, he was able to perform the essential functions of his job despite his infirmities. (Tr. 137, 151-52) The commission likewise asserts that the complainant was “qualified to perform his duties as a carpenter and did so satisfactorily for 22 years.” (Commission’s post-hearing brief, p. 32) The complainant does not appear to need accommodation for any non-essential aspect of his job, either. (For example, he does not need modified physical facilities to provide access to a lavatory, office, or work area.) The only logical conclusion one can draw is that the complainant had no need for accommodations prior to his June 1997 injuries, and thus the respondent had no obligation to provide accommodations.This is not to say that the complainant could perform all of his tasks easily. Nevertheless, he was able to complete all assignments designed for one person, albeit more slowly than other carpenters. What he was unable to do was a two-person job, but that was not necessarily due to his disabilities. On approximately ten to twenty percent of the assignments, any carpenter, able-bodied or not, would need the assistance of another individual, whether a temporary carpenter, an unskilled laborer, or another skilled worker nearby or on the same job. Sometimes another person simply was not available.
Unquestionably, there were instances when the complainant’s supervisors refused to assign an assistant to him. The complainant has not established with any certainty how often this occurred or what percentage of his requests were rejected, and the record shows only that the complainant asked for help far more than any other carpenter. A host of reasons, some more palatable than others, explain the respondent’s decisions. Although there were enough temporary carpenters to assign to the carpenters in the early 1990s, by 1996 and 1997 there were only three. Thus, at times there were no temporary carpenters available to pair with the complainant; the respondent’s refusal in June 1997 is a notable example of this. On the other hand, not all of the complainant’s requests were denied and he frequently was assisted by others at the job site. In any event, provision of assistance on an ad hoc basis is not the type of accommodation envisioned by the statute and it is not related to or designed to compensate for the effects of a disability. It is merely an as-needed benefit provided, when possible, to all of the carpenters, able-bodied or not.
Even assuming, for the sake of discussion, that the complainant required accommodation, the provision of a full-time helper is per se not reasonable. The purpose of reasonable accommodation is to enable one to perform the essential job functions. As discussed above (see Conclusion B), an employer is not required to provide an accommodation that involves eliminating the essential functions or transferring them to another person. Thus, provision of a helper is not reasonable when the helper takes over the essential functions of the position. Gilbert v. Frank, supra, 949 F.2d 642-44; Borkowski v. Valley Central School District, supra, 63 F.3d 140; Cochrum v. Old Ben Coal Co., supra, 102 F.3d 912; Hershey v. Praxair, supra, 969 F.Supp. 435.
(2) Although the complainant was generally able to perform the essential functions of the carpenter position prior to June 25, 1997, after his injury he was unable to work at all until the fall of that year. At that time, his doctors released him to return to work, provided he lift no more than fifteen pounds. Because both the carpenter and foreman positions required lifting far more than fifteen pounds—a carpenter’s toolbox alone weighed more—the complainant was no longer able to perform his essential job functions. At least one doctor offered his medical—not legal—opinion that the complainant should initially be given light duty assignments. Nonetheless, the respondent would not allow the complainant to return to work with restrictions. Throughout the course of follow-up visits, the restriction was never removed. For that reason, the complainant could not return to work and he eventually retired, but not before requesting permission to return with accommodations to compensate for his disability. Specifically, he sought accommodation of his disabilities by asking for light duty; the assignment of a permanent helper; promotion to foreman; and job reassignment. None of these proposed accommodations is reasonable. Reasonable accommodation may involve the assignment of an employee to a light duty position, if one exists. However, an employer has no duty to create a light-duty position where none previously existed. Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 680 (7th Cir. 1998). Here, the complainant did not identify any specific, existing light duty position other than to suggest, implicitly, that his carpenter job could be restructured into a less-demanding position. In this instance, the record clearly demonstrates that the respondent had a policy eschewing any form of “light duty” for a convalescing employee. Such a stance is particularly apt here, where any light duty work would, of necessity, eliminate the essential functions of the carpenter (and foreman) position. The complainant also believed that he could return to work if the respondent provided him with a full-time helper to perform those tasks precluded by his medical restrictions. Were the respondent to yield to this request, it would mean that the helper—and not the complainant—would be performing the essential functions of the job. As discussed in greater detail above, an employer has no duty to eliminate or transfer essential functions to other employees or to hire an additional employee to assume those functions. The complainant has failed to identify any reasonable accommodation that would allow him to perform the essential functions of either the carpenter job or the foreman job. In such case, under certain circumstances, a reasonable accommodation may be reassignment to a vacant position for which an employee is qualified. 42 U.S.C. §12111(9)(B); 29 C.F.R. §1630.2(o)(2)(ii); Stone v. City of Mount Vernon, supra, 118 F.3d 100; Commission ex rel Grant v. Yale-New Haven Hospital, supra, 26. Like any other accommodation, reassignment must be reasonable and not impose an undue burden on the employer. Smith v. Midland Brake, Inc. 180 F.3d 1154, 1169 (10th Cir. 1999). At no time here did the complainant ask for reassignment, except in the sense that he believed—unjustifiably—that promotion to foreman would allow him to delegate the more physically-demanding tasks. There is no requirement that an employer promote a disabled employee in the name of reassignment. White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995). Furthermore, as the record clearly establishes, the foreman position would not be an appropriate reassignment as long as the complainant could not perform the essential functions and lacked the critical qualities needed by a supervisor. The respondent is not required to retrain and reassign the complainant to an entirely different position when the complainant has identified no vacant or available positions; nor is the respondent required to create a new position. Mitchell v. Washingtonville Central School District, supra, 190 F.3d 9; Dalton v. Subaru-Isuzu Automotive, Inc., supra, 141 F.3d 680. Nevertheless, Travers did ultimately offer to retrain the complainant for a different position, one not specifically identified on this record, once she was informed that the complainant had reached maximum medical improvement. However, the complainant declined to pursue this option and he has identified no other position to which he might be transferred.
In conclusion, I find that the respondent has not abrogated its duty under either the ADA or FEPA to provide reasonable accommodation to the complainant.
9. F. Retaliation
The complainant’s remaining allegation is that the respondent retaliated against him because he challenged the appointment of Montanez as foreman in 1995 and because he complained about other allegedly discriminatory activities thereafter. Specifically he posits that after he complained about not getting the foreman job in 1995, his work environment changed and his superiors began to demean him verbally, deny him accommodations, deny him overtime opportunities, and give him more difficult assignments. Ultimately, he was denied the foreman position when Montanez retired in 1997, a decision he believes was motivated not only by his disability (see discussion above in Conclusion B) but in retaliation for his prior complaints. Both federal and state statutes prohibit employers from discriminating against an employee because he opposed a discriminatory practice or filed a complaint alleging that the employer has discriminated against him. 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). Pursuant to §46a-60(a)(4), it is unlawful “[f]or any . . . employer . . . to discharge, expel or otherwise discriminate against any person because he has opposed any discriminatory employment practice, or because he has filed a complaint. . .” Analysis of a retaliation claim in the context of disability discrimination follows the three-step burden-shifting paradigm established in McDonnell Douglas and its progeny. Muller v. Costello, supra, 187 F.3d 311; Sarno v. Douglas-Elliman, Gibbons & Ives, Inc., 183 F.3d 155, 159 (2nd Cir. 1999). To establish a prima facie case of retaliation under the ADA or FEPA, the complainant must show that (1) he engaged in statutorily protected activity; (2) the respondent was aware of complainant’s activity; (3) the complainant suffered an adverse employment action; and (4) there existed a causal link between the complainant’s activity and the adverse action. The complainant “need not establish that the conduct he opposed was actually a violation of the statute so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Muller v. Costello, supra, 187 F.3d 311, quoting Sarno v. Douglas-Elliman, supra, 183 F.3d. 159; see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2nd Cir. 1998) (retaliation case under Title VII). If the complainant establishes his prima facie case, the burden shifts to the respondent to articulate a legitimate, non-discriminatory reason for the adverse action. Should the respondent carry this burden, the burden then shifts back to the complainant to prove that the articulated reason was a pretext for impermissible retaliation. Galagher v. Delaney, 139 F.3d 338, 349 (2nd Cir. 1999); Hendler v. Intelcom USA, Inc., supra, 963 F. Supp. 212, citing Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 253. To satisfy the first element of the prima facie case, the complainant must establish that it engaged in a protected activity. Both the state and federal statutes contemplate two types of protected activities: filing a charge (or complaint) with a civil rights enforcement agency or, less formally, opposing a discriminatory employment practice. Publicly criticizing an allegedly discriminatory promotion or attempting to utilize a contractually-determined grievance procedure are two examples of the protected activities contemplated by the statutes. According to the Second Circuit Court of Appeals, “Under some circumstances, . . . pursuit of internal remedies constitutes a protected activity.” Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64-65 (2nd Cir. 1992) The complainant alleges that repercussions arose after he took the following protected activities: he opposed the appointment of Montanez as carpenter foreman in 1995; he filed grievances in 1997 regarding the foreman vacancy and the distribution of overtime; and he complained on an ongoing basis about his workload, harassment on the job, difficult assignments, and lack of assistance. Given the particular circumstances of this case, I conclude that only the first two constitute protected expression under the applicable statutes.
From 1995 through 1997, the complainant complained internally—and informally—that his supervisors harassed him, gave him overly difficult assignments, and refused to provide him with assistance. The “complaints,” in this context, were little more than continuous griping and wheedling, the main accomplishment of which was to alienate others and further inflame the personality conflicts. I find that the incessant daily complaining does not rise to the level of “opposition” in this context. To establish the second element of his prima facie case, the complainant must show that the respondent was aware of his protected expression. The complainant contends that the 1995 “grievance” was brought to the respondent’s attention when the union president gave it to Travers. Travers denies seeing this document, and, contrary to the complainant’s argument, the union president agrees with Travers. I believe Travers’ testimony on this matter. Nevertheless, Travers (as well as Doane, Healy, O’Connor and others) was well aware of the complainant’s concerns from other conversations. Similarly, most people in the respondent’s hierarchy, from Healy up, were aware of the complainant’s 1997 grievances. The complainant has satisfied the second element. To satisfy the third element of his prima facie case, the complainant must show that he suffered adverse employment actions. For this, he identifies many of the allegations discussed in prior sections of these conclusions: unequal distribution of overtime, failure to accommodate, difficult assignments, harassment, and denial of a promotion.
Denial of accommodation, verbal harassment, and disparate treatment may, under some circumstances, be considered retaliatory; see Muller v. Costello, supra, 187 F.3d 315; Pomilio v. Wachtell Lipton Rosen & Katz, supra, 1999 WL 9843 *8. However, in Conclusion C above I have already determined that the allegations of harassment here do not rise to the level of actionable discrimination. Similarly, I have concluded that the respondent did not give the complainant more difficult assignments (see Conclusion C), nor did it deny the complainant equal opportunity to earn overtime (see Conclusion D). The complainant has also failed to demonstrate that the respondent denied him reasonable accommodations (Conclusion E), so he cannot sustain a retaliation claim on that basis either.
Failure to promote is recognized as an adverse action for purposes of a retaliation complaint. Silk v. City of Chicago, supra, 194 F.3d 800; Pomilio v. Wachtell Lipton Rosen & Katz, supra, 1999 WL 9843 *8. To satisfy the fourth prong of his prima facie case, the complainant must demonstrate a causal connection between the protected expression and the respondent’s decision not to promote him and leave the vacancy unfilled. Temporal proximity between the protected expression and the adverse action is the typical way of raising an inference of causality. Tomka v. Seiler Corp. 66 F.3d 1295, 1308 (2nd Cir. 1995); see also Figgous v. Allied/Bendix Corp., 906 F.2d 360, 362 (8th Cir. 1990) (discharge two years after charges were filed was not close enough in time to infer a retaliatory motive); Oliver v. Digital Equipment Corp., 846 F.2d 103, 110 (1st Cir. 1988) (discharge soon after protected activity is indirect proof of causal connection; conversely, where two years have elapsed, the connection is far more tenuous); Clark v. Chrysler Corp., 673 F.2d 921, 930 (7th Cir. 1982) (two year time lapse negated any inference of causal connection); Newtown v. Shell Oil Co., 52 F. Supp. 2d 366, 374 (D.Conn. 1999)(one month between plaintiff’s complaint of sexual harassment and a poor performance rating established causal connection); EEOC v. MCI Telecommunications Corp., 820 F. Supp. 300, 310 (S.D. Texas 1993) (no causal connection where challenged conduct occurred six months before the plaintiff’s discharge); Maldonado v. Metra, 743 F. Supp. 563, 568 (N.D. Ill. 1990)( five month gap between protected activity and discharge too lengthy to establish causal connection). The decision not to refill the foreman position was initially made two years after the complainant challenged Montanez’s appointment and it was not finalized for another six months or so. Such two year period is far too great to support a causal connection between the 1995 complaints and the decision not to fill the foreman job. The complainant has failed to establish a prima facie case. Finally, I turn to the question of whether Travers’ October 1997 recommendation to Wardlaw and the respondent’s final and formal determination not to refill the foreman position were in retaliation for the complainant’s April 1997 grievances and the filing of this complaint in June 1997. The complainant did not amend his complaint to include this allegation, and for that reason alone this specific inquiry should fail. Nonetheless, the respondent did not object to this pursuit, so I will address it here, albeit briefly so as to avoid repeating what has been discussed above. Filing a grievance and filing a complaint with this commission are protected activities contemplated by the applicable statutes. But even assuming that Travers’ recommendation and Wardlaw’s ultimate decision not to refill the position constitute an adverse employment action under the statute, there is no clear nexus between the complainant’s actions and the respondent’s for the simple reason that Travers’ memorandum reflects a business decision already formulated in April 1997, prior to the grievance and prior to this claim. The complainant cannot, therefore, complete his prima facie case on this particular allegation. Even if the complainant had proven his prima facie case, the respondent’s decision not to promote the complainant in 1997 is legitimate and not motivated by retaliation. The same non-discriminatory reasons that rebutted the prima facie case of disability discrimination rebut any prima facie case of retaliation. In short, under the circumstances of this case, internal reorganization and personnel reduction justify not refilling the position. See, e.g., Burrows v. Chemed Corp., 743 F.2d 612, 617 (8th Cir. 1984) (departmental reorganization has been recognized as a legitimate, nonretaliatory reason for a challenged action). Moreover, as explained previously, the complainant has made many conclusory allegations but has not presented sufficient evidence to convince me either that the respondent’s proffered reason is false or that the respondent’s actions were motivated by unlawful retaliation. Thus, the complainant’s retaliation claim must fail.
FINAL DECISION AND ORDER
In light of the foregoing, in accordance with the provisions of General Statutes §46a-86, it is hereby ordered that the complaint be, and hereby is, DISMISSED.
Dated at Hartford, CT this ____ day of June, 2000.
Hon. David S. Knishkowy
Human Rights Referee
c: K. O’Leary, F. Secondo, C. Sharp, R. Pech APPENDIX A
130 Indian Spring Rd.
Woodstock, CT 06281
The Housing Authority of the City of Hartford
475 Flatbush Avenue
Hartford, CT 06106
Kevin D. O'Leary, Esq.
Cummings & Lockwood
Hartford, CT 06103
Commission on Human Rights and Opportunities
21 Grand Street
Hartford, CT 06106
Cheryl A. Sharp, Esq.
Assistant Commission Counsel II
 According to allegations in the complaint, Healy also told the
complainant’s wife that the complainant would have a chance to become foreman.
(Ex. Resp-1, par. 11) However, Mrs. Secondo, who attended each day of the public
hearing and who could have corroborated the complainant’s testimony, did not
 The memorandum is self-described as a “grievance,” although it does not comport with the requirements of a formal grievance and was not ever pursued as such. (Tr. 142) In fact, nothing in the collective bargaining agreement would support grieving a temporary appointment. (Tr. 300-01)
 The record reveals only that O’Connor discussed posting the position. There is no evidence that he specifically identified the complainant as the source of his concern. (See Tr. 288, 660, 699)
 At least one member of the promotion review panel was unimpressed with the complainant’s responses to questions regarding his working relationship with co-workers, giving him five points on a scale of one to ten. (Ex. Resp-49) (Other evaluators’ opinions on this subject are not in the record, as several pages are inexplicably missing from this exhibit.) According to the collective bargaining agreement, a ranking of five or six is considered “below normal standard.” (Ex. Resp-25, p. A-8)
 See FFs 31 and 32 for discussion of temporary carpenters and unskilled laborers.
 In 1996, Healy and Lenny Texidor would indeed check on the complainant’s
whereabouts, because he was not always where he was assigned to be. (Tr. 476,
628) However, Healy routinely called other carpenters as well (Tr. 324-26) and
no evidence shows that the complainant was unduly singled out because of his
 While Texidor appeared to articulate his position in an antagonistic manner, undoubtedly reflective of his obvious disdain for the complainant or anyone with infirmities, the fact remains that the respondent did require its skilled tradesmen to be fully able to perform their duties without restrictions. (Tr. 86-89, 294, 607, 731)
 The record is far from clear how often the complainant was denied
assistance. For example, Thomas Eckel heard the complainant ask for help about
ten times; when asked if the respondent honored the requests, he responded under
oath, “I don’t think all the time.” (Tr. 374) Sonia Correa believed the
complainant’s requests were denied “most of the time” (Tr. 317) but, with
one exception (see FF 37), she offered no comparison to the treatment of other
carpenters’ requests. Healy testified that the complainant asked
him for help “quite often” (Tr. 564), certainly more than anyone else, and
the complainant himself acknowledged that Healy accommodated this request “sometimes.”
 Correa worked for Healy and Texidor from June 1996 to the beginning of 1998. The proximity of her office to theirs often allowed her to hear and see much of what went on in their offices and in the common area outside her office. (Tr. 304-06)
 The carpenter foreman position requires a full panoply of carpentry skills. According to the formal job description in effect at that time, the foreman:
Oversees and performs skilled carpentry work. . . . Performs rough
and finish carpentry. Constructs, erects, installs and repairs structures
and fixtures of wood, plywood, and wallboard, and conforming to
building code. Fabricates sheet metal for rodent control. Applies
shock-absorbing, sound deadening and decorative paneling to ceilings
and walls. Fits and installs pre-fabricated window frames, doors, door
frames, weather stripping, interior and exterior trim and finish hardware,
such as locks and kick plates. Builds and repairs park benches, play-
ground equipment and related facilities. Uses hand tools of trade and
related power equipment, including drills and welding machine. Erects
scaffolding and ladders for assembling structures above ground level
and roof repairs.
(Ex. CHRO-7; see also Tr. 427-28, 621)
 Kennison has worked at the Housing Authority since January 1987. His main duties include repairing roofs and preparing vacant units for rental. (Tr. 486-87)
 Such criticisms were apparently not new. For example, in the complainant’s
annual service rating for six months in 1990, the respondent noted that his “acceptance
of supervision is fair” and his “initiative is average.” (Ex. Comm-4) In a
service rating for September 1990 through September 1991, the respondent rated
the complainant “good or better” in all categories except for his “average”
rating in a category described as “Attitude and cooperation: towards job,
co-workers, and team relations. Acceptance and utilization of supervision.”
 Despite the speculation of Correa and the complainant, the record is never clear what these particular keys were for.
 According to the collective bargaining agreement, “When an employee in the bargaining unit is temporarily assigned by the employer to work in a higher classification for longer than thirty (30) days when a vacancy of a temporary nature occurs, said assignment shall be made in writing . . .” (Ex. 25, p. 7)This record contains no such written assignment.
 Kennison’s recollection of this incident is, at best, vague. He
conceded that he might have said something to this effect, but if he did it was
merely in jest. His demeanor while testifying, however, suggests that he is not
the jocular type. In any event, there is no evidence that Kennison did actually
receive additional pay. Kennison also claimed that he had little interest in the
foreman position and would not have applied if it were posted, but he would have
accepted it if it were offered to him. (Tr. 512-13) This stance was contradicted
by Thomas Eckel, who testified that Kennison had actually circulated a petition
asserting that the foreman position should be filled on the basis of merit
rather than seniority. (Tr. 378-79)
 The respondent’s prior policy allowing recuperating individuals to return to work with restrictions led to numerous complaints by employees. The respondent ultimately decided the benefits of the policy were outweighed by the problems it generated. (Tr. 725-26, 729-31)
 In March 1997, ten of the twenty-seven skilled tradesmen retired under the respondent’s retirement incentive program. (Ex. Resp-28)
 The fact that carpenters often relied upon the assistance of others at the job site—whether laborers, temporary workers, or other skilled tradesmen—does not negate the importance of these functions or of the underlying necessity to lift and move large, heavy materials.
 Passing the 1995 examination allowed the complainant to be put on an eligibility list for only six months. After the six months elapsed, vacancies would have to be posted and the complainant would have to go through the entire application process once more. (Ex. Comm-74)
 As discussed elsewhere, receiving help on the more difficult tasks is not the type of accommodation contemplated by the statutes. All of the carpenters, disabled or not, needed help at times, especially on jobs that required two people.
 In any event, further analysis is necessary for the other claims discussed later in this decision.
 See Commission ex rel. Grant v. Yale-New Haven Hospital, supra, 24 (“evidence
that does not support a direct evidence approach may still satisfy an indirect
evidence prima facie case”).
 The commission and complainant do not claim that his obesity constitutes a disability.
 The abusive or vulgar comments of which the complainant was completely unaware cannot provide a basis for a harassment claim, as the complainant would have no subjective response to them.
 The complainant also claims that the respondent failed to offer accommodations to allow him to perform the sought-after foreman job. That claim was discussed in detail in Conclusion B.
 The essential functions of the carpenter position are discussed above in Conclusion B; see also n. 11.
 Reasonable accommodation may also include job restructuring to eliminate or transfer some of the non-essential or marginal duties of the position. The duties the complainant could no longer perform, however, were essential in nature and an employer has no duty to eliminate or transfer essential functions. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13 (8th Cir. 1998); Gilbert v. Frank, supra, 949 F. 2d 642, 644.