9810371, Charette - Decision
Commission on Human Rights and Opportunities ex rel. Lisa Charette, Complainant
State of Connecticut, Department of Social Services et al., Respondents
CHRO Nos. 9810371 and 9810581
April 26, 2001
The complainant is Lisa Charette ("complainant"), of 15 Simone Drive, Broad Brook, Connecticut, 06106. The complainant appeared pro se. The Commission on Human Rights and Opportunities ("commission") is located at 21 Grand Street, Hartford, Connecticut and was represented by Attorney Raymond P. Pech of the Office of Commission Counsel. The State of Connecticut; Bureau of Rehabilitation Services/Social Security Disability Determination Services for the State of Connecticut, Department of Social Services; John F. Halliday; Mary D. Priestman; and Brian Merbaum (collectively "respondents"), located at 15 Sigourney Street, Hartford, Connecticut, were represented by Assistant Attorney General Hugh Barber of the Office of the Attorney General.
II. Summary of Complaint and Decision
On January 16, 1998, the complainant filed complaint number 9810371 with the commission. The complainant alleged that the State of Connecticut, Department of Social Services ("DSS") illegally discriminated against her in violation of General Statutes §§ 46a-58(a), 46a-60(a)(1), and 46a-60(a)(4) ("CFEPA"). She further alleged that DSS violated 42 U.S.C. 2000e et seq., as amended, ("Title VII") and the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ("ADA"). According to the complainant, DSS harassed and sexually harassed her since 1995. She also claimed that DSS retaliated against her on or about June 1997. She further claimed that DSS did not reasonably accommodate her disability on or about September 1996 through the present, and did not allow her to make up time for missed work from approximately November 1997 through the present. The complainant alleged that her color (white), sex (female), and physical disability (loss of colon, chronic staphylococcosis/tropical pyomyositis) were in part factors in these actions.
The complainant subsequently filed another complaint, number 9810581, dated May 19, 1998, with the commission. She named as respondents the State of Connecticut; Bureau of Rehabilitation Services/Social Security Disability Determination Services for the State of Connecticut, Department of Social Services; John F. Halliday, Director Department of Social Services Bureau of Rehabilitation Services, individually and in his official capacity; Mary D. Priestman, ADA Coordinator, Affirmative Action Division, individually and in her official capacity; and Brian Merbaum, Bureau Chief, Disability Determination Services, individually and in his official capacity. She alleged that they violated General Statutes § 46a-60(a)(1) and the ADA by not accommodating her on or about December 1997 and that her physical disability was in part a factor in this action. This complaint was amended on September 14, 1998 to allege that these respondents also violated General Statutes §46a-60(a)(4) by retaliating against the complainant for filing this complaint.
For the reasons stated herein, both complaints are dismissed.
III. Procedural History
The complaints were assigned to an investigator who found reasonable cause to believe that an unfair practice was committed as alleged in the complaints. On November 10, 1999, the investigator certified both complaints and the results of his investigations to the executive director of the commission and to the attorney general of the State of Connecticut.
Upon certification of the complaints, the Honorable Lisa B. Giliberto was assigned as presiding referee to hear the complaints. On December 23, 1999, a public hearing was scheduled to commence on November 29, 2000. Upon motion by the commission, the two complaints were consolidated by an order dated February 10, 2000. The matter was reassigned to the Honorable Donna Maria Wilkerson as presiding referee and thereafter, on October 4, 2000, reassigned to the undersigned as the presiding referee.
On November 27, 2000, the respondents filed a motion to dismiss the complaints. The respondents sought either to dismiss both complaints in their entirety due to the absence of jurisdiction/failure to state a claim upon which relief can be granted or, in the alternative, to dismiss each claim of discrimination that was not supported by a reasonable cause finding. On the record, the motion was denied to the allegations for which reasonable cause was found and was granted as to the allegations for which no reasonable cause was found. (FitzGerald, Presiding Human Rights Referee, Transcript pages ("Tr.") 39-45.)
The public hearing was held on November 29, November 30, December 1, December 4, December 5, December 6, December 7, December 11, December 12, December 13, December 18, December 19, December 20, and December 21, 2000. At the request of the parties, dates were scheduled for the filing of briefs and reply briefs. Briefs were filed on February 13, 2001 and reply briefs on March 1, 2001, at which time the record was closed.
IV. Issues and Parties’ Positions
As a result of the ruling on the respondents’ motion to dismiss, the remaining allegations, those for which reasonable cause was found, are the respondents’ alleged failure to provide reasonable accommodation contained in complaints 9810371 and 9810581 and the alleged sexual harassment by John Galiette contained in complaint 9810371.
The commission determined that it would not pursue the sexual harassment claim against Galiette. (Attorney Pech, Tr. 89). As the complainant wanted the allegation pursued (Complainant, Tr. 89), she proceeded on that allegation.
The complainant also alleges that the respondents failed to provide reasonable accommodations for her disability. She seeks flexible a flexible arrival time to work in the morning, a private office, job restructuring, and reimbursement for light bulbs she purchased. The commission argues that the issue in this case is the reasonableness of the complainant’s requests for accommodation and the respondents’ responses to those requests. (Commission’s Brief, p. 10.) The commission maintains that the respondents have not demonstrated that the accommodations requested by the complainant are unreasonable or would cause undue hardship. (Commission’s Brief, p. 19.) The respondent maintains that the dispositive issue is whether the accommodations requested by the complainant are reasonably required by her disability for the performance of the essential functions of her job without causing an undue burden on the respondents. (Respondents’ Post-Hearing Memorandum, p. 8, February 13, 2001.)
V. Findings of Fact
References to testimony are to the witness and the transcript page where the testimony is found. References to an exhibit are by party designation and number. The complainant’s exhibits are denoted as "Complainant Ex." followed by the exhibit number. The commission’s exhibits are denoted "Commission Ex." followed by the number, and the respondents’ exhibits are denoted by "Respondent Ex." followed by the number. For those exhibits proffered by more than one party, the numbers of both or all the parties is noted. Findings of fact are denoted as "FF" followed by the number.
Based upon a review of the pleadings, exhibits, testimony, and transcripts, and an assessment of the credibility of the witnesses, the following facts relevant to this decision are found:
- The complainant is a member of one or more protected classes based on sex (female) and physical disability (loss of colon, chronic staphylococcosis/tropical pyomyositis). (General Statutes § 46a-51(15).)
- Each of the respondents is an employer, agent, or person subject to CFEPA and Title VII. (General Statutes §§ 46a-51(10), 46a-51(14), 46a-60; 42 U.S.C. 2000e(b)).
- The complainant was, and is, diagnosed as having chronic staphylococcosis/tropical pyomyositis. (Dr. Kurtzman, Tr. 1344-45.) This disease is a chronic bacterial infection of the muscles of the colon. (Dr. Kurtzman, Tr. 1344.)
- As a consequence of the disease, the complainant had surgery in 1992 resulting in the removal of her colon. (Dr. Kurtzman, Tr. 1346-48.) Several months later she had a subsequent operation to attach her small intestine directly to her rectum. (Dr. Kurtzman, Tr. 1348.)
- As a result of the loss of colon and the chronic staphylococcosis/tropical pyomyositis, the complainant had and continues to have difficulties with eating, sleeping, digestion, and elimination of waste from her body. (Complainant, Tr. 167-68, 170-72; Respondent Ex. 21/Commission Ex. 10.) DSS acknowledged that the complainant is substantially limited in some major life functions. (Respondent Ex. 37/Commission Ex. 43.)
- The complainant began working for DSS’s Disability Determination Services unit ("DDS") on February 17, 1995. (Complainant, Tr. 103-4.)
- The complainant progressed from Intern I to Intern II to her present position of Vocational Rehabilitation Counselor. (Complainant, Tr. 104-107.)
- Her direct superiors have been Karen Seiler, Judith Beganski ("Beganski") and Ron Georgetti ("Georgetti"). Her current supervisor is Suzanne Denucci. (Complainant, Tr. 110 – 112, 238.)
- DSS annually distributes its sexual harassment policy to its employees. (Hipsley, Tr. 2125-26.)
- DSS annually distributes its sexual harassment complaint procedure to its employees. (Hispley, Tr. 2127.)
- The alleged sexual harasser, John Galiette ("Galiette"), has been employed by DSS’s Bureau of Rehabilitative Services ("BRS") for thirty-two years. (Galiette, Tr. 2412.) He is the bureau chief of the Division of Organizational Support. (Galiette, Tr. 2413-14.)
- Galiette’s division provides the support services for the bureau, including fiscal management, human resource development, staff development, in-service training, innovation and expansion grant proposals, coordination of an intern’s progress through a Master’s Degree program, and coordination of promotional exams. He sometimes serves on an interview panel. (Galiette, Tr. 2414-15, 2620.) Although Galiette is not in the complainant’s direct chain of command for supervision, evaluation, or discipline, he does have oversight of administrative functions involving the complainant, such as coordination of her progress through her Master’s Degree program (Galiette, Tr. 2417), as well as education, payroll, and personnel questions. (Galiette, Tr. 2418; Complainant Ex. 52.) Galiette’s interactions with the complainant were professional and businesslike. He did not socialize with her. (Galiette, Tr. 2420-21.)
- In the summer of 1996, the complainant, seeking a transfer, brought to Galiette’s attention problems she felt she was having with her supervisor. Galiette referred her back to her supervisor and to the case processing coordinator. (Galiette, Tr. 2423.)
- The complainant also brought to Galiette’s attention problems she felt she was having with harassment issues. She was vague in her complaints and he referred her to the Affirmative Action unit. (Galiette, Tr. 2426.)
- Beginning in December 1996, Galiette became concerned about the voice mails he was receiving from the complainant. He was concerned over her continued vague, encompassing complaints of harassment and sexual harassment. (Galiette, Tr. 2427-29.) He also was concerned about her behavior at a meeting, and her attributing to him suggestions about her office space that he did not make. (Galiette, Tr. 2431-32.) In addition, he was concerned about the content and the time of night of her voice mails to him. He felt that the tone of her voice mails was seductive in nature. (Galiette, Tr. 2433, 2442, 2444.)
- On May 9, 1997, Galiette brought his concerns to Beth Hipsley ("Hipsley"). (Galiette, Tr. 2443-44.) Hipsley is employed by DSS as its Affirmative Action Administrator. (Hipsley, Tr. 2118.) She advised him to tell the complainant that he was uncomfortable with the tone and content of her voice mails and that she should not call him again. (Galiette, Tr. 2448.)
- On May 14, 1997, Galiette verbally told the complainant that he had brought her voice mail messages of May 8, 1997 to the attention of the Affirmative Action unit. He told her that if she had concerns she should go through the appropriate channels rather than come to him. (Galiette, Tr. 2449, 2452-53.) Galiette, by memo dated May 16, 1997, and Hipsley, by memo dated May 20, 1997, later advised the complainant to stop leaving inappropriate messages on Galiette’s voice mail. They also identified the appropriate people whom she should contact for various issues. (Complainant Ex. 8/Respondent Ex. 131; Respondent Ex. 132.)
- The complainant received Hipsley’s memo. (Respondent Ex. 133.)
- The complainant telephoned Galiette in May (Galiette, Tr. 2449-50), June, and July 1997. (Galiette, Tr. 2457-60.) After discussing the matter with Hipsley, Galiette reiterated to the complainant his comments from May on how she should effectively deal with issues and whom to call at Affirmative Action or Personnel. (Galiette, Tr. 2463.) The complainant continued to telephone Galiette in August and December 1997 and January 1998. (Galiette, Tr. 2470, 2482-84.)
- On May 18, 1997, the complainant sent a picture of her graduation to Galiette with a friendly note. (Complainant Ex. 1.)
- On July 23, 1997, the complainant sent a "thank you" note to Galiette for his help and support with her college master’s program. (Dalao, Tr. 867; Complainant, Tr. 1066; Complainant Ex. 1.)
- On August 26, 1997, Galiette filed a sexual harassment complaint against the complainant with DSS. (Complainant Ex. 1.)
- The complainant was interviewed by Hipsley on August 26, 1997 and September 24, 1997 regarding Galiette’s allegations. (Complainant Ex. 1.)
- On October 1, 1997, Hipsley notified Irene Mason ("Mason"), DSS’s Affirmative Action Division Director, that Hipsley had found reasonable cause to believe that the complainant had sexually harassed Galiette. (Complainant Ex. 2/Respondent Ex. 124.)
- On October 7, 1997, Mason notified the complainant of the sexual harassment finding against her. (Complainant Ex. 1.)
- On October 24, 1997, the complainant filed a sexual harassment complaint against Galiette. (Respondent Ex. 119.)
- On November 3, 1997, Hipsley asked the complainant for more information regarding her complaint. (Respondent Ex. 138.)
- On November 10, 1997, the complainant filed a complaint with Hipsley alleging two harassing telephone calls in May 1997 from Galiette, for which she claimed to have tapes of the conversations. (Respondent Ex. 140.) Also on November 10, 1997, the complainant advised Hipsley that she would be refraining from further communication regarding her sexual harassment complaint against Galiette. (Complainant Ex. 21/Respondent Ex. 141.)
- On November 12, 1997, Hipsley asked the complainant for more information and copies of all tapes in the complainant’s possession relating to the complainant’s harassment claim against Galiette. (Respondent Ex. 142.)
- On November 14, 1997, the complainant notified Hipsley that she did not have tapes of the harassing telephone calls and again wrote that she would not cooperate any further with Hipsley’s investigation. (Respondent Ex. 143.)
- Notwithstanding the complainant’s failure to cooperate, Hipsley interviewed Galiette regarding the complainant’s allegations against him. (Galiette, Tr. 2481-82; Respondent Ex. 146.) Hipsley ultimately concluded that she could not reasonably find any cause to believe that Galiette had harassed/sexually harassed the complainant. (Respondent Ex. 146.)
- The complainant never notified Hipsley or filed an internal complaint with DSS that on September 24, 1997 Galiette allegedly mouthed the words "I love you" to the complainant. Hipsley did not become aware of this allegation until months later at the commission’s investigatory fact finding of the complainant’s complaint. (Hipsley, Tr. 2156, 2220.)
- The complainant never notified Hipsley or filed an internal complaint with DSS that Galiette engaged in heavy breathing while on the telephone with the complainant. Hipsley did not become aware of this allegation until after the complainant had filed her complaint with the commission. (Hipsley, Tr. 2156.)
- The complainant never notified Hipsley or filed an internal complaint with DSS that Galiette asked her "What sex are you?" Hipsley did not become aware of this allegation until after the complainant had filed her complaint with the commission. (Hipsley, Tr. 2156-57.)
- The complainant never notified Hipsley or filed an internal complaint with DSS alleging that Galiette made a sexually harassing telephone call to her on January 10, 1998. Hipsley did not become aware of this allegation until after the complainant had filed her complaint with the commission. (Hipsley, Tr. 2176.)
- On December 24, 1997, the complainant left a message on Galiette’s voice mail wishing him a Merry Christmas. (Dalao, Tr. 878; Complainant, Tr. 1072, Galiette, Tr. 2482-83; Respondent Ex. 150.)
- On January 9, 1998, the complainant telephoned Galiette seeking assistance in obtaining a medical certificate for her doctor to complete so that the complainant could return to work following an illness. (Complainant, Tr. 1077; Complainant Ex. 14.)
- On February 25, 1998, the complainant was notified that a meeting was scheduled for March 3, 1998 at which she would receive a written warning for her sexual harassment of Galiette. (Complainant Ex. 16.)
- On February 27, 1998, the complainant filed a report with the Windsor police department alleging that she received a sexually harassing telephone call from Galiette on January 10, 1998. (Complainant Ex. 10; Complainant Ex. 16.)
- In her current position as a vocational rehabilitation counselor, the complainant processes disability claims for the Social Security Administration to determine a claimant’s eligibility. Her essential job functions are to gather and analyze medical and vocational records and to prepare disability determinations in accordance with pre-established disability criteria. She must be available during normal business hours for disability claimants, supervision, clerical and data systems support, quality assurance and medical consultants, and necessary contacts with medical and vocational sources and school systems. She must attend work with reasonable predictability. She must be able to handle work-related stress and to interact cooperatively and productively with coworkers, medical consultants, supervisors, clerical staff, and claimants. (Complainant, Tr. 107-10; Priestman, Tr. 1506; Merbaum, Tr. 1810 – 15, 1819; Georgetti, Tr. 2058 – 64, 2071; Priestman, Tr. 1715; Respondent Ex. 2.)
- DDS has bandwidth hours of work from 7:00AM through 5:30PM, Monday through Friday, during which an employee can establish his or her work schedule of a four or five-day workweek. (Complainant, Tr. 256; Jackson, Tr. 1568-69.) Within these bandwidth hours, DSS has core hours, from 9:30AM to 3:00PM, when all employees scheduled for that day are expected to be at work. (Merbaum, Tr. 1938 – 39; Commission Ex. 52/Respondent Ex. 43.) As employees are on a 35-hour workweek schedule, an employee working five days would work 7 hours per day. An employee working 35 hours in four days would work 8 ¾ hours per day, which includes two paid fifteen-minute breaks, and also receive an unpaid one-half hour lunch, for a total of 9 ¼ hours per day, within the bandwidth time period. (Complainant Tr. 259-60, 286.)
- On or about October 21, 1997, DSS notified its employees in DDS that they would no longer be able to work outside of the bandwidth hours. (Complainant, Tr. 154, Commission Ex. 52/Respondent Ex. 43.) This requirement was based on security reasons, including theft of property and equipment tampering; client confidentiality; and potential for injury to an employee. (Merbaum, Tr. 1858, 1863-65, 1872-73; Commission Ex. 52/Respondent Ex. 43; Respondent Ex. 193) This rule has been consistently enforced since it was issued. (Merbaum, Tr. 1874; Dalao, Tr. 832-33, 2790.) Since the relocation of the DDS unit to its present location in April 1999, the offices have been closed and the parking lot locked shortly after 5:30 PM. All staff, including managers and supervisors, is required to vacate the building. (Merbaum, Tr. 1874 – 75.)
- DDS makes disability determinations on behalf of the federal Social Security Administration pursuant to an interagency agreement for purposes of determining a claimant’s eligibility for federal disability programs. DDS is required to follow federal guidelines in making its disability determination and administering the program. (Merbaum, Tr. 1801-05; Respondents Exs. 80, 189, 190.) The Social Security Administration, under whose regulations DSS functions, requires that a supervisor be present during any overtime, flextime, or compensatory time. (Merbaum, Tr. 1868 - 70; Respondent Ex. 80.) DSS also has its own policy that a supervisor be present in the work area when people are working. (Priestman, Tr. 1730.)
- DSS’s disability policy includes the procedures an employee is to follow in requesting an accommodation on the basis of a disability. The policy provides for the granting of an accommodation under appropriate circumstances when the request is documented. The policy requires that any request for an accommodation must be in writing, specifying why the proposed accommodation is necessary to perform the essential functions of the job, and accompanied by medical verification of the disability. The policy also provides that part-time employment is an available accommodation. (Priestman, Tr. 1465 – 67; Commission Ex. 29; Respondent Ex. 86/Commission Ex. 42.)
- Pursuant to DSS’s disability policy, the complainant had requested two prior accommodations in 1996: a change of supervisor and a change of workstation site. Both requests were granted by DSS. (Priestman, Tr. 1477, 1480 – 81; Respondent Ex. 36/Commission Ex. 70; Respondent Ex. 37/Commission Ex. 43; Respondent Exs. 38, 40; Commission Ex. 47.)
- DSS’s policies also provide for an unpaid one-half lunch and two paid fifteen- minute break periods. Employees may, but are not required to, work through their paid break periods. (Jackson, Tr. 1565 – 66; Priestman, Tr. 1532.) Although the complainant may not have utilized formal lunch and break periods, she did use time during the work day for personal activities associated with lunch and break periods such as going to the lunch truck, walking around the office site grounds, and using the bathroom. (Complainant, Tr. 417, 658; Galiette, Tr. 2428-29; Respondent Ex. 25/Commission Ex. 14; Respondent Ex. 65; Complainant Ex. 54.)
- Pursuant to DSS’s attendance and tardiness policy, whenever an employee becomes aware of her inability to report to work at her scheduled time, she must contact her immediate supervisor or designee. Upon her late arrival to work, the employee is required to report directly to her supervisor or designee so that the time can be noted and the reasons for the late arrival discussed and documented. (Respondent Exs. 89, 90.)
- From the beginning of her employment in February 1995 through October 1997, the complainant’s documented attendance was excellent. There were no issues noted or problems associated with tardiness. (Complainant, Tr. 390; Merbaum, Tr. 1828; Georgetti, Tr. 2067-69.) She kept her work hours as scheduled and adhered to work hours, including lunch and break periods. (Respondent Exs. 4, 5, 6, 7, 8.)
- From February 1995 to date, the complainant’s work schedule was as follows: from February 1995 to April 1995, the complainant was in classroom training and her mandatory work schedule was 8:30AM to 4:30PM, five days per week. From May 1995 to July 1995, her schedule was 8:30AM to 4:00PM, five days per week. From August 1995, when she became eligible to work a four day week, to May 1996, she worked 8:15AM to 5:30PM, four days per week. From June 1996 to August 1996, to accommodate her Master’s Degree program, the complainant worked 8:00AM to 5:15PM four days per week, and then from September 1996 to the present she returned to her schedule of 8:15AM to 5:30PM, four days per week. (Hyatt, Tr. 2638-2639.) The complainant also occasionally worked overtime on Fridays and Saturdays in 1997 (Respondent Ex. 179) and on Saturdays in 1999. (Respondent Ex. 181.)
- The complainant obtained her Master’s Degree in one and one-half years even though her union contract allowed her three years to complete the program. (Complainant, Tr. 727 – 28.)
- On October 2, 1997, the complainant received a service rating report giving her a "satisfactory" (rather than an excellent) rating in the area of "ability to deal with people." On October 7, 1997, Mason notified the complainant of the finding of sexual harassment against her. (See FF 25.) The complainant strongly objected to the satisfactory service rating and, on October 7, 1997, wrote a one-page interoffice memorandum complaining about the work environment and refusing to sign the service rating report until management addressed alleged problems in the work environment. (Complainant, Tr. 384; Respondent Ex. 8.)
- Because the complainant experiences the symptoms of her disability primarily in the morning, she often does not arrive by her scheduled start time of 8:15AM, although she rarely arrives later than 9:00AM. (Complainant, Tr. 260; Respondent Ex. 16.) A uniform, consistent arrival time to work is important for client contact, work assignments, and unit training. (Merbaum, Tr. 1827-28.)
- In the fall of 1997, the complainant was told that she could no longer work through her lunch and/or break times to make up for her morning tardiness. Also, DSS began to dock her pay because of her tardiness. (Complainant, Tr. 265 – 69; Respondent Ex. 46/Commission Ex. 73; Respondent Ex. 50/Commission Ex. 76; Respondent Exs. 11, 184.)
- The complainant told her supervisor that she could not be docked time for these instances of tardiness because an ADA accommodation had been granted allowing her late arrivals. In fact, no such accommodation had been granted. (Priestman, Tr. 1486; Merbaum, Tr. 1831-32; Complainant Ex. 53; Respondent Ex. 45/Commission Ex. 74; Respondent Ex. 48/Commission Ex. 77; Respondent Ex. 50/Commission Ex. 76.)
- By memorandum dated May 19, 2000, Linda Hyatt ("Hyatt"), case processing coordinator, advised the complainant that she had become aware that the complainant was frequently arriving late to work and not reporting to her supervisor upon arrival. In her memorandum, Hyatt referred the complainant to DSS’s guidelines for attendance and tardiness requiring an employee to report to her supervisor when arriving late to work. (Respondent Ex. 76.)
- The complainant has been given repeated verbal and written instructions to call in when she knows she is going to be late and to report to her supervisor upon her arrival. (Respondent Exs. 7, 57, 72, 74, 76.) Notwithstanding such directives, the complainant routinely does not call in and does not report to her supervisor upon her late arrival. (Georgetti, Tr. 2070, 2077; Respondent Exs. 71, 74, 76, 79.)
- The complainant’s loss of colon impacts her digestive process. In a normal digestive process, after food is ingested in the mouth, it proceeds to the stomach where some digestion occurs and then passes into the small intestine where it is mixed with other digestive juices, bile, and other chemicals. The nutrients are absorbed in the small intestine and the remainder, usually a considerable amount of liquid material, passes into the colon. The colon then reabsorbs the liquid and transports the remaining waste material, usually a fairly solid mass, to the rectum for excretion at a convenient time for the person. (Dr. Kurtzman, Tr. 1349.)
- Without a colon, the material passes directly from the small intestine to the rectum. Without the reabsorbtion and reservoir capabilities of the colon, the result is a large amount of fluid that generally causes people to have to eliminate it urgently. (Dr. Kurtzman, Tr. 1350.) These frequent watery bowel movements, especially after meals, are normal results of the complainant’s surgery. (Dr. Kurtzman, Tr. 1351.)
- In addition to experiencing frequent bowel movements after meals, the complainant will also experience frequent bowel movements over a two to three hour period upon waking in the morning. This is due to the accumulation of enzymes and bile secreted during the night. (Dr. Kurtzman, Tr. 1354, 1373.)
- While it may be possible for the complainant to anticipate this condition in the morning and adjust her morning schedule to get up earlier and arrive on time to work, the frequency of the bowel movements can be unpredictable and are influenced by a number of factors. (Complainant, Tr. 173, 399-400; Dr. Kurtzman, Tr. 1372-74.) These factors include: the amount of food and liquids the complainant consumes, the amount of sleep she had, the length of time during the night the material remained in her system before elimination, medications she took, exercise, travel in a car for more than an hour, and her emotional state. (Dr. Kurtzman, Tr. 1356 – 57.) Normal morning activity of getting up and moving around, getting out of the house, and getting to work can stimulate bowel movements. (Dr. Kurtzman, Tr. 1374, 1384.)
- If the complainant is anxious, her emotional state can increase secretions in the small intestine and cause her bowels to have to evacuate. (Dr. Kurtzman, Tr. 1359 – 60; Respondent Ex. 27/Commission Ex. 19.) While anxiety related to work will often exacerbate the problem, the anxiety can come from any stressor. (Dr. Kurtzman, Tr. 1358, 1360.) The effects of the condition, such as incontinence, can also produce anxiety and exacerbate the problem. (Dr. Kurtzman, Tr. 1359.) The condition produces a great deal of anxiety and is a stressor both at home and work. (Dr. Kurtzman, Tr. 1358.)
- Eating three meals a day would substantially increase the complainant’s need to use a bathroom. (Dr. Kurtzman, Tr. 1362.) Avoiding breakfast and lunch aid in decreasing the number of bowel movements the complainant would have during the day. (Dr. Kurtzman, Tr. 1360; Respondent Ex. 30/Commission Ex. 32.) However, skipping lunch and breakfast are stressful and not good for the complainant. (Dr. Kurtzman, Tr. 1361.) If the complainant proposed to skip lunch and breakfast, working longer hours four days per week would be better for her than working five days per week. (Dr. Kurtzman, Tr. 1361, 1371; Respondent Ex. 30/Commission Ex. 32.) However, the absence of a colon does not in itself, medically, preclude an individual from working five days. (Dr. Kurtzman, Tr. 1378.) The complainant has been on a four-day workweek since September 1996. (Hyatt, Tr. 2638-39.)
- Beganski supervised the complainant during the complainant’s first year of employment. The complainant informed Beganski that she had a hidden disability that may cause her to use the bathroom more often. No further details were provided. The complainant did not tell Beganski that her disability had any other impact on her job. (Beganski, Tr. 2016 – 17.)
- The nature of the complainant’s requests for accommodations evolved over time. Initially, she requested a private office and job modification or restructuring. After the incidents of tardiness in late October 1997, the complainant requested flexibility in arrival time and the ability to stay late, past bandwidth hours, to compensate for missed time. In subsequent conversation with Priestman, the complainant requested permission to work through breaks and to move her lunch period to the start of her day. This combination would effectively allow her to start her workday at 9:15AM. (Complainant, Tr. 262-276.)
- The complainant’s requested accommodation is for total flexibility in her work schedule. (Complainant, Tr. 257-58, 516-23; Priestman, Tr. 1525; Respondent Ex. 25/Commission Ex. 14; Respondent Ex. 28/Commission Ex. 9; Respondent Ex. 26/Commission Ex. 17; Respondent Ex. 27/Commission Ex. 19; Commission Exs. 40, 81.) The complainant testified that the pain level and bowel frequency are increasing. (Complainant, Tr. 357.) She has not been consistent in her arrival time to work. (Complainant, Tr. 260, 643; Respondent Ex. 16.)
- The complainant and her health care providers made written requests to DSS for accommodations due to the complainant’s disability. The requests included flexible work hours; an exception to the bandwidth hours; an adjustment that would permit the complainant to put both of her fifteen-minute breaks at the beginning of the day, which would allow her day to begin officially at 8:15AM but not require her to be present until 9:15AM.; and a private office. (Complainant, Tr. 516 – 18, 362 – 64; Respondent Ex. 24/Commission Ex. 13; Respondent Ex. 25/Commission Ex. 14; Respondent Ex. 28/Commission Ex. 9; Respondent Ex. 41/Commission Ex. 72; Commission Ex. 33.)
- DSS proposed two alternatives to the complainant: a full-time, five day flexible schedule (7 hours per week; 35 hours per week); or, a part-time, four day work schedule, 9:30AM – 5:30PM (28 – 30 hours per week). (Respondent Ex. 63.) As a part-time employee, the complainant would still have health benefits as well as maintain the accrual of vacation and sick leave. Her vacation and sick leave accruals and her salary would be pro-rated in accordance with her actual hours worked. This part-time schedule is in place throughout DSS for a number of employees who are unable to work full-time, including employees with chronic fatigue, MS, and gastrointestinal disorders. (Priestman, Tr. 1534 – 35.)
- The complainant rejected both alternatives. Because she does not eat breakfast or lunch, she believes she cannot maintain a five day work schedule. She rejected the part-time proposal because she accepted the job based on full-time employment. (Complainant, Tr. 648.)
- The complainant and her medical providers requested a private office for the complainant as an accommodation under the ADA. (Respondent Ex. 41/Commission Ex. 72; Respondent Ex. 24/Commission Ex. 13; Respondent Ex. 25/Commission Ex. 14; Respondent Ex. 26/Commission Ex. 17; Respondent Ex. 28/Commission Exs. 9, 40.) The requests for a private office were denied. (Respondent Ex. 51, Respondent Ex. 54/Commission Ex. 18.)
- A private office is not necessary for the complainant to perform the essential functions of her job. (Priestman, Tr. 1496.) Additionally, relocating the complainant would insulate her from administrative case flow, support systems, and supervision. Also, she would not have had ready interaction with other counselors and medical consultants. Special arrangements for computer support and the transportation of files would have to be made. (Merbaum, Tr. 1843-46, 1848; Georgetti, Tr. 2065-67.)
- Although she had had the same fluorescent lighting in DRS’s Windsor office, the complainant requested a change in her work site lighting as an ADA accommodation when DRS relocated to Hartford. Prior to providing medical justification for the request and while DRS was investigating the matter, the complainant purchased special light bulbs on her own. She did not follow state purchasing procedures. (Merbaum, Tr. 1909 – 14; Complainant Ex. 33; Respondent Ex. 182; Commission Ex. 82.)
- The complainant and her health care providers requested job restructuring. (Respondent Ex. 41/Commission Ex. 72; Respondent Ex. 26/Commission Ex. 17; Respondent Ex. 24/Commission Ex. 13). Neither the complainant nor her health care providers ever specified the details of what kind of job restructuring was sought or how the restructuring was necessary to enable the complainant to perform the essential functions of her job. The request was denied. (Priestman, Tr. 1484; Respondent Ex. 54/Commission Ex. 18; Respondent Exs. 42, 51.)
- The complainant and her health care providers requested that the complainant be granted an exception to the bandwidth hours to enable her to work past 5:30PM. (Commission Exs. 33, 40, 60.) The request was denied. (Commission Exs. 57, 59.) Granting the complainant an exception to the bandwidth hours would constitute an undue hardship for the respondents. (See FF 42, 43.)
Hostile work environment/sexual harassment
1. Applicable federal statutes, regulations, and case law
Sexual harassment is prohibited under federal law. Federal law provides: "It shall be an unlawful employment practice for an employer … to fail or to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin …." Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a). Although Title VII does not explicitly prohibit sexual harassment, the U.S. Supreme Court has said that sexual harassment is a form of unlawful discrimination that violates Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
However, not all allegations of sexual harassment are actionable. Clark County School District v. Breeden, 532 U.S. _____ (2001), 2001 WL 402573 (U.S.) To determine whether the alleged conduct is sexual harassment, one must determine whether the conduct is unwelcome (Meritor, supra, 477 U.S. 68) and hostile (Meritor, supra, 477 U.S. 66). One must also weigh the credibility of the witnesses, alleged victim, and alleged harasser.
The "conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive." Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). "The correct inquiry is whether [the employee] by her conduct indicated that the alleged sexual advances were unwelcome …." Meritor, supra, 477 U.S. 68. "[T]he question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact …." Meritor, 477 U.S. 68. Further, "in a case of alleged sexual harassment which involves close questions of credibility and subjective interpretation, the existence of corroborative evidence or lack thereof is likely to be crucial." Henson, supra, 682 F.2d 897, 912 n. 25.
In addition to determining whether the conduct was unwelcome, the conduct must also be found to have created a hostile work environment. "Thus, in Meritor we held that sexual harassment so severe or pervasive as to alter the conditions of [the victim’s] employment and create an abusive working environment violates Title VII." (Internal citations omitted; internal quotation marks omitted.) Faragher, supra, 524 U.S. 786. "So, in Harris, we explained that in order to be objectionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. We directed courts to determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance." (Internal quotation marks omitted; internal citations omitted.) Faragher, supra, 524 U. S. 787-88; Breeden, supra, 532 U.S. _____.
In a claim for an actionable hostile environment created by a supervisor where no tangible employment action is taken, an employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense." Faragher, supra, 524 U.S. 775-76.
"In determining whether alleged conduct constitutes sexual harassment, the [Equal Employment Opportunity] Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis. " 29 C.F.R. § 1604.11(b).
2. Applicable state statutes and case law
Sexual harassment is also prohibited under state law. General Statutes § 46a-60(a)(8) provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section: For an employer, by himself or his agent … to harass any employee, person seeking employment or member on the basis of sex. ‘Sexual harassment’ shall, for purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose of or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment."
"To prove a work environment sexual harassment claim, a claimant must establish that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual/harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition or privilege of employment (i.e., that the harassment was sufficiently pervasive or severe to create an abusive work environment); and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action." Britell v. State of Connecticut, Department of Correction, 1997 WL 583840 *13 (Conn. Super., September 9, 1997) aff’d, 247 Conn. 148 (1998).
"To satisfy the fourth element or requirement, the sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Mere utterances of sexual epithets which perhaps give rise to offensive feelings on the part of an employee are not sufficient. … [T]he standard of pervasiveness or severity has both objective and subjective implications. The conduct at issue must create an objectively hostile or abusive work environment, one that a reasonable person, in the plaintiff’s situation, would find to be hostile or abusive. Similarly, if a victim does not subjectively view the environment to be abusive, the conduct cannot be found to have altered the conditions of the victim’s employment." Britell, supra, 1997 WL 583840 *14 (Conn. Super., September 9, 1997).
However, "not all allegations of harassment are actionable. … The abuse must be severe and pervasive; the incidents must be persistent, not isolated." (Internal citations omitted; quotation marks omitted.) Massey v. Connecticut Mental Health Center, 1998 WL 4705590 *3 (Conn Super., July 31, 1998). "To establish a claim of hostile work environment, the workplace (must be) permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment." (Internal quotation marks omitted; citations omitted.) Britell v. Department of Correction, 247 Conn. 148, 166-167 (1998).
"The fifth element is where proof of the agency relationship … is needed. The plaintiff must show that a specific basis exists for imputing the conduct that created the hostile work environment to the employer. … [I]t is apparent that the fifth element has two parts, the employer’s actual or constructive knowledge of the harassment and the employer’s inaction or lack of adequate action after learning of it. A somewhat more refined statement of essentially the same criterion is that the plaintiff must prove that the defendant either provided no reasonable avenue for complaint or that the defendant knew of the harassment but did little or nothing about it." (Internal citations omitted.) Britell, supra, 1997 WL 583840 *15 (Conn. Sup., September 9, 1997).
3. Application to pertinent federal and state law
Testimony and evidence were offered supporting the complainant’s allegation that Galiette’s conduct was subjectively and objectively unwelcome and hostile, was based on her sex, affected a term or condition of her employment, and was known or should have been known by her employer.
The complainant established the first prong of her claim; she is a member of a protected class in that she is a female. Assuming that Galiette made the comments she attributes to him, she also established through the comments "I love you" and "what sex are you?" that the harassment was based on her female sex.
The complainant offered evidence that she found the conduct unwelcome. She testified that she was upset, concerned, and confused by Galiette’s alleged telephone calls of May 9, 1997 (Complainant, Tr. 1253) and that she told Galiette his comments were not appreciated or appropriate for an employment relationship. (Respondent Ex. 140.) She was very upset and disturbed by his January 10, 1998 telephone call (Bachand, Tr. 977) and the other unwanted telephone calls she received from him. (Complainant Ex. 10.) For months she told her union steward, Susan Dalao ("Dalao") about the harassment. (Dalao, Tr. 883.) On September 24, 1997, when Galiette passed her in the hallway on her way to a meeting and mouthed the words "I love you", she was upset by the remark. She testified she told Hipsley, Dalao, and union steward Howard Bloomfield ("Bloomfield"), about this incident when she walked into the meeting. (Complainant, Tr. 1068, 1306.)
The complainant also offered evidence that Galiette’s alleged conduct was hostile. The complainant describes the harassment as an ongoing situation. (Complainant, Tr. 1222-23; Dalao, Tr. 883; Bachand, Tr. 977; Respondent Ex. 157.) She relates five specific incidents: telephone calls on May 9, 1997 (Respondent Ex. 140) and January 10, 1998 (Complainant, Tr. 1077); Galiette’s sexual harassment complaint against her (Complainant Ex. 1); Galiette mouthing the words "I love you" to her on September 24, 1997 (Complainant, Tr. 1068); and his heavy breathing in the middle of telephone conversations (Complainant, Tr. 1067). The complainant testified that in his telephone conversations Galiette made remarks about "love is in the air", "I’m your ice cream man" (M. Charette, Tr. 953; Bachand, Tr. 976; Complainant, Tr. 1058, 1077, 1168); "No one is asking you to stay, but I am, Lisa"; "How about ll:00" (Complainant, Tr. 1168); and asking her what sex she was. (Complainant, Tr. 1067.) He also offered to help her obtain a transfer. (Bachand, Tr. 976-77; Complainant, Tr. 1077.) The complainant and her husband ("M. Charette") considered these comments sexually harassing. (Complainant, Tr. 1058-59; M. Charette, Tr. 1017.)
As a result of Galiette’s alleged conduct, the complainant claims to have experienced stress and trauma, weight loss, and sleeping problems. (M. Charette, Tr. 967-68; Complainant, Tr. 1046-47.)
In support of the credibility of her claim, the complainant cites for corroboration her husband, who claims to have heard part of the second telephone call on May 9, 1997 and also a tape recording of the January 10, 1998 telephone call. (M. Charette, Tr. 952, 973.) Her father ("Bachand"), who claims to have heard part of the telephone call on January 10, 1998, also purports to corroborate that portion of the story. (Bachand, Tr. 976.) The complainant testified that a Windsor police officer listened to the January 10, 1998 telephone call. (Complainant, Tr. 1289, 1299; Complainant Ex. 10.)
Responding to the respondents’ criticism of her delay in reporting Galiette’s alleged harassment of her, the complainant testified that she was afraid to report his conduct sooner because she believed he was in her chain of command and feared being found insubordinate. (Complainant, Tr. 1067, 1224, 1255-56.) Her union steward also believed Galiette was in the complainant’s chain of command. (Dalao, Tr. 880.) The complainant does not recall receiving Galiette’s memo of May 16, 1997 (Complainant Ex. 8/Respondent Ex. 131) in which he objected to the style, tone, and content of the voice mail messages being left by the complainant. (Complainant, Tr. 1214.) She also disputes the accuracy of the transcripts the respondents made of her voice mails. (Complainant, Tr. 1201.)
However, the testimony and exhibits supporting the complainant’s allegation of sexual harassment are outweighed by the substantial and credible countervailing evidence that Galiette’s alleged conduct did not occur or, if it did occur, the conduct was not unwelcome, hostile, or severe enough to constitute actionable harassment.
Notwithstanding the complainant’s belief that Galiette was in her chain of command, her conduct was inconsistent with her assertion that his allegedly harassing behavior was uninvited, unwelcome, and offensive. Both Hipsley and Galiette had advised the complainant to cease leaving messages on Galiette’s voice mail because Galiette found them to be both unwelcome and unacceptable. They also gave her a list of whom to contact about various personnel issues. (Complainant Ex. 1; Respondent Ex. 132.) Nevertheless, the complainant conceded that she would still be friendly to Galiette and sent him friendly messages. (Complainant, Tr. 1072, 1254, 1253-54.) She would continually call him at strange times of the night. (Hipsley, Tr. 2155.) Although the complainant disputed the accuracy of the respondents’ transcriptions of her voice mails to Galiette and does not recall how many messages she left on his voice mail, when they were made, or at what time, she conceded that she continued to leave him messages in May, July, and August 1997. (Complainant, Tr. 1201, 1248; 1250; Complainant Ex. 34; Respondent Ex. 123; Respondent Ex. 135.) She also sent Galiette voice mails in December, including one on December 24, 1997 wishing him a Merry Christmas. (Dalao, Tr. 877-78; Complainant, Tr. 1072; Complainant Ex. 50; Respondent Ex. 150; Respondent Ex. 201.) When she needed a medical certificate for her doctor to complete so that she could return to work, she, at the suggestion of her union steward, again called Galiette on January 9, 1998 for information on how to obtain the certificate. (Complainant, Tr. 1076-77; Dalao, Tr. 880; Complainant Ex. 14.) Apparently, and most telling, despite the reciprocal allegations of sexual harassment between the complainant and Galiette, her union representative as well as the complainant herself continued to feel comfortable in having the complainant contact Galiette.
In addition to the telephone calls to Galiette, the complainant continued to contact him by mail. On May 12, 1997, she sent him a handwritten note to reschedule a meeting he had missed with her. (Complainant Ex. 9.) On May 18, 1997 (less than two weeks after his allegedly upsetting sexually harassing telephone calls to her on May 9, 1997), she sent him a graduation picture of herself with a note: "Dear John, Trust is a beautiful thing … Live [or love] always, Lisa." (Complainant Ex. 1.) Regardless of whether the word is "live" as claimed by complainant or "love" as read by Galiette and other employees of DSS, the note is still a friendly one. On July 23, 1997, the complainant sent a "thank you" note to Galiette for assisting her with college. (Dalao, Tr. 867; Complainant, Tr. 1066; Complainant Ex. 1.) These friendly notes, like the telephone calls, are inconsistent with the complainant’s allegations of unwelcome and hostile sexual harassment occurring regularly for a long period of time.
The complainant’s conduct in documenting Galiette’s alleged harassment is also inconsistent with her assertion. For instance, although the complainant provided her own verbatim transcription of the admittedly non-sexually harassing telephone calls between her and Galiette on May 8, 1997 (Complainant Ex. 7/Respondent Ex. 127), she did not provide a transcription of the alleged harassing telephone conversations of May 9, 1997. Rather, she produced a few quotes in a narrative prepared six months after those calls. (Respondent Ex. 140.) Nor did the complainant ever produce the tapes of those alleged calls. She also alleged that she was unable to document Galiette’s alleged telephone call of January 10, 1998 until February 25, 1998 (Complainant Ex. 14) because of her illness (Complainant, Tr. 1301); however, she was able to document her January 9, 1997 telephone call to him on January 9, 1997. (Complainant Ex. 14.) Although she reported the allegedly harassing telephone call of January 10, 1998 to the Windsor police, she did not do so until approximately six weeks after the alleged call. (Complainant Ex. 10.) Her sexual harassment complaint, dated November 10, 1997, against Galiette (Respondent Ex. 140) cited only the May 9, 1997 telephone conversations. This complaint inexplicably made no mention of the allegations she would later raise that on September 24, 1997 Galiette mouthed the words "I love you" while passing her in the hallway; that Galiette would breathe heavily into the telephone while having conversations with her; or of any other incidents of the daily, on-going harassment to which she claims she was subjected.
Because the complainant’s verbal and written conduct is inconsistent with her assertion that Galiette’s allegedly harassing behavior was uninvited, unwelcome, and offensive, she did not establish this element of her sexual harassment claim.
In addition to failing to establish the unwelcome element of her sexual harassment claim, the complainant also fails to establish the hostile environment element of her claim. Although the complainant makes general claims of on-going, daily harassment by Galiette, her specific claims against him are few and isolated: two telephone calls on May 9, 1997; heavy breathing during unspecified telephone conversations on unspecified dates; the sexual harassment complaint he filed against her with the respondents; his mouthing the words "I love you" while passing in the hallway on September 24, 1997; and his telephone call of January 10, 1998. The infrequency and isolation of these acts, assuming they occurred, are insufficient to alter her working conditions and constitute actionable harassment.
Further, the complainant did not proffer detailed testimony as to how the alleged conduct by Galiette made it more difficult for her to do her job. Indeed, her employee service rating report for September 7, 1996 to September 11, 1997 (corresponding to the time period of the alleged harassment) rated the quality of her work, quantity of her work, dependability, and attendance as all "very good." (Respondent Ex. 8.)
Also, reasonable people have viewed the incidents alleged by the complainant as non-sexual and non-hostile. DSS substantiated Galiette’s complaint of harassment against the complainant (Complainant Ex. 1) while dismissing the complainant’s complaint of sexual harassment against Galiette. (Respondent Ex. 146.) The police officer, having listened to a tape, reports that he found the message from Galiette "to be extremely informal in nature and did not seem to be from a person with whom the victim [complainant] has an adversarial relationship with." (Complainant Ex. 10.) The officer apparently took no further action and did not contact Galiette. (Galiette, Tr. 2490.)
Also, the context of the incidents is important. For instance, Galiette’s alleged telephone call to her on January 10, 1998, inquiring into her health and offering to help her, must be considered in light of her call of January 9, 1998 to him asking for help in obtaining a medical certificate she needed because of her illness. Galiette’s forwarding to her a memo on transfer requests (Complainant Ex. 15) is not suspect given the complainant’s on-going complaints about her supervisors, co-workers, work station, and hours.
Given the infrequency of the specific acts and the context of the remarks, the complainant failed to establish that Galiette’s conduct created a hostile or offensive working environment.
The complainant also failed to establish the fifth prong in her harassment claim. Even if these incidents occurred, she failed to establish that the employer either provided no reasonable avenue for complaint or that the employer knew or should have known of the harassment and failed to take remedial action. DSS annually distributes its sexual harassment policy and its complaint procedure to its employees. (FF 9, 10.) In addition, both Hipsley and Galiette specifically advised the complainant of whom to contact regarding various workplace issues. (Complainant Ex. 8/Respondent Ex. 131; Respondent Ex. 132.) The complainant acknowledged receipt of Hipsley’s memo. (Respondent Ex. 133.) The complainant, however, did not notify the Affirmative Action unit, or other management personnel, of the alleged May 9, 1997 telephone calls until October 1997 (Respondent Ex. 119) and November 1997. (Respondent Ex. 140.) She also never notified the Affirmative Action unit, or other management personnel, of her allegation that Galiette mouthed the words "I love you" as they passed in the hallway, that Galiette would engage in heavy breathing during telephone conversations with her, that Galiette asked her "What sex are you?", or that Galiette made an allegedly harassing telephone call to her on January 10, 1998. (FF 32, 33, 34, 35.)
Further, shortly after filing her sexual harassment complaint with DSS, the complainant notified Hipsley that she did not have tapes of the alleged sexually harassing telephone calls of May 9, 1997 and that she would not cooperate any further with Hipsley’s investigation. (FF 28, 30.) Given her unreasonable failure to utilize the employer’s reporting procedure, to timely report some allegations, to report other allegations at all, and to cooperate in the investigation, the complainant failed to establish any basis for imputing Galiette’s conduct, assuming it occurred, to the employer.
Finally, in evaluating whether the alleged conduct occurred, and if so, whether it constitutes sexual harassment requires making credibility determinations of witnesses and parties. In evaluating the plausibility and consistency of the stories, corroborative evidence and the lack thereof, motivation, historical behavior, timeliness and completeness of complaints, and observations of third parties, the complainant’s allegation against Galiette lacks credibility.
First, the complainant’s allegation lacks plausibility and consistency. She concedes that she and Galiette were on friendly terms through May 8, 1997. (M. Charette, Tr. 1010; Complainant, Tr. 1187, 1192; Complainant Ex. 7/Respondent Ex. 127.) But, she offers no plausible or credible explanation for his alleged change of behavior with regard to the sexually harassing calls to her on the following day, May 9, 1997. She attempts to tie this change of behavior with a report she received from Douglas Smith ("Smith") that Galiette was angry with her because of the severity of her disability; however, Smith denies having that conversation with either the complainant or Galiette. (Smith, Tr. 1778.)
There are several other inconsistencies. For example, the complainant described the harassment as an on-going situation, occurring almost daily over a long period of time (Complainant, Tr. 1222-23); yet, she offered only a few isolated examples and gave a non-responsive answer to the respondents’ attorney’s questions about what other telephone calls were sexually harassing. (Complainant, Tr. 1223.) Another inconsistency is that after Hipsley found no reasonable cause to believe the complainant’s sexual harassment claim against Galiette (Respondent Ex. 146), the complainant requested that the investigation continue. However, she refused to cooperate in that investigation. (Complainant Ex. 21/Respondent Ex. 141; Respondent Ex. 143.) In yet another inconsistency, the complainant testified that the Windsor police officer listened to the tape of the January 10, 1998 telephone call; but in her handwritten timeline for January 10, 1998, she wrote only that the "police have listened to the 5/97 answ. machine tapes." (Respondent Ex. 157.)
Second, the complainant’s allegation of sexual harassment lacks credibility due to the absence of corroborative evidence and contemporaneous complaints where one would naturally expect to find them. The complainant claimed to have tapes of the alleged harassing telephone calls (Respondent Ex. 119); however, when Hipsley requested them for her investigation (Respondent Ex. 142), the complainant denied having any. (Respondent Ex. 143.) In her complaint about the two May 9, 1997 telephone calls, the complainant alleged that "my husband witnessed these conversations"; however, he admitted to only hearing part of one of the calls. (M. Charette, Tr. 952.) The complainant alleged a tape existed of the January 10, 1998 telephone call (Complainant, Tr. 1289); however, that tape apparently no longer exists and the complainant does not know what happened to it. (Complainant, Tr. 1302-1304.) As mentioned previously, the complainant testified that the Windsor police officer listened to the tape of the January 10, 1998 telephone call; but in her handwritten timeline for January 10, 1998, she wrote only that the "police have listened to the 5/97 answ. machine tapes." (Respondent Ex. 157.)
The complainant’s alleged conversation with Smith is another example of inexplicably missing corroborative evidence. As previously discussed, the complainant attempted to tie Galiette’s change of behavior between May 8 and May 9, 1997 to a report she received from Smith that Galiette was angry with her because of the severity of her disability. However, Smith denied having that conversation with either the complainant or Galiette. (Smith, Tr. 1778.) Smith is a retired counselor of DSS, BRS. The complainant was a client of his and he has known Galiette for 30-33 years. (Smith, Tr. 1775-76.) According to Smith, the comments that the complainant said Smith attributed to Galiette "would be entirely - - entirely out of character for Mr. Galiette to make a statement like that, knowing [Galiette] as long as I have. He’s [been] a pro-active proponent of people with disabilities all his life." (Smith, Tr. 1778.) Smith would recall such a statement if it had been made, and does not recall such a statement by Galiette because it was not made. (Smith, Tr. 1778.)
In another example of the absence of corroborative evidence where one could naturally expect to find it, Galiette’s telephone log shows the two, concededly non-harassing, telephone calls made by him to the complainant on May 8, 1997. However, his log shows no telephone calls on May 9, 1997 to the complainant, although it does show outgoing calls to other numbers and incoming calls for that day. (Complainant Ex. 5/Respondent Ex. 158.)
Further, Hipsley’s investigation of the complainant’s sexual harassment complaint against Galiette did not corroborate the complainant’s allegation. Hipsley concluded that the harassment did not occur. (Complainant Ex. 13/Respondent Ex. 149.)
In addition to lack of expected corroborative evidence, there is a lack of contemporaneous complaints. For instance, The complainant did not memorialize her May 9, 1997 telephone conversations with Galiette until November 11, 1997, six months after the alleged calls. (Respondent Ex 140.) Significantly, this November 11, 1997 report fails to mention the alleged September 24, 1997 incident or any incident other than the two telephone calls. She also claims that she delayed documenting the January 10, 1998 telephone call and reporting it to the police until February because she was ill with pneumonia that entire time. (Complainant, Tr. 1301.) However, she was able to document her January 9, 1998 call to Galiette on January 9, 1998 (Complainant Ex. 15), and she was at work on January 20, 21, 27, 28, 29, February 10, and February 11, 1998. (Respondent Ex. 184.)
The complainant also made no contemporaneous complaints to the respondents about Galiette’s alleged heavy breathing on the telephone, asking her "What sex are you?", or the telephone call of January 10, 1998. The respondents did not become aware of these alleged incidents until after the complainant filed her complaint with the commission. (FF 33, 34, 35.)
The alleged incident on September 24, 1997 also illustrates both the absence of corroborative evidence where one would naturally expect to find it as well as the absence of a contemporaneous complaint. As previously mentioned, the complainant alleged that on her way to a meeting with Hipsley, Dalao, and Bloomfield on September 24, 1997 she passed Galiette in the hallway and he mouthed to her the words "I love you." The complainant further testified that she was upset by this remark, entered the meeting crying, and told Hipsley, Dalao, and Bloomfield about Galiette’s remark. (Complainant, Tr. 1306.)
However, Hipsley testified that the complainant did not discuss this incident at that September 24th meeting nor did Hipsley remember the complainant crying at the meeting. (Hipsley, Tr. 2219-20.) Rather, according to Hipsley, she first heard about this allegation after the complainant filed her complaint with the commission. (Hipsley, Tr. 2156, 2219-20) The alleged incident is not mentioned in Hipsley’s memo discussing the meeting. (Complainant Ex. 2/Respondent Ex. 124.) Dalao recalled that the complainant did not begin crying until she was shown documentation that DSS had interpreted as evidence of complainant’s sexual harassment of Galiette. (Dalao, Tr. 2818) Dalao also recalled that complainant did not mention the incident at the meeting but rather sometime afterward. (Dalao, Tr. 2820-21.) The complainant did not mention the incident in her written complaints to Hipsley of sexual harassment (Respondent Ex. 119; Respondent Ex. 140) nor did she apparently mention it to the Windsor police. (Complainant Ex. 10.)
Third, the complainant’s allegation of sexual harassment also lacks credibility due to the suspect nature of her motivation. The complainant filed her October 24, 1997 complaint, of Galiette’s alleged May 9, 1997 telephone calls, in response to DSS’s decision of October 1, 1997 finding the complainant guilty of harassing Galiette. (Complainant, Tr. 913.) According to the complainant, "due to the situation of the sexual harassment complaint filed against me by John Galiette and having received a reasonable cause finding against me, I find no other choice at this point in time to file a harassment/sexual harassment complaint against Mr. Galiette." (Respondent Ex. 119.) Further, the complainant waited until February 27, 1998 to contact the police regarding Galiette’s alleged January 10, 1998 call. February 27, 1998 is, coincidentally, two days after the complainant was notified that she would receive a written warning as a result of DSS’s decision finding that she harassed Galiette. (Complainant Ex. 16.)
Fourth, the complainant’s allegation of sexual harassment lacks credibility due to a comparison of the past record of the alleged harasser with that of the complainant. Galiette had been an employee of DSS for over thirty-two years. He had an outstanding record and had never been alleged to have sexually harassed anyone. (Galiette, Tr. 2498.)
The complainant, however, complains about everybody: supervisor Beganski; clerks Leoni Peters and Jennifer Brown; Doctors Hill, Schumacker, and Maloney; and Jeff McLusky (Complainant, Tr. 1034, 1039, 1042, 1071; Complainant Ex. 30; Respondent Ex. 36/Commission Ex. 70.) She described working at DSS as "like working in a zoo." (Complainant, Tr. 1043.) She complained about harassment from doctors within the building and from people in other buildings whom she would pass while taking walks. (Galiette, Tr. 2428.) Also, the complainant claims that working for one of her supervisors, Beganski, was not a pleasant experience and that Beganski obstructed the complainant’s work. (Complainant, Tr. 1034.) However, Beganski’s personnel evaluations of the complainant are favorable. (Respondent Ex. 3; Respondent Ex. 4, Respondent Ex. 5, Respondent Ex. 6, Respondent Ex. 7, Respondent Ex. 195.)
Although the complainant alleged that she did not file a complaint against Galiette because she believed he was in her chain of command, she had no compunction against complaining about her supervisor, Beganski.
In summary, an evaluation of the plausibility and consistency of the stories, the corroborating evidence and the lack thereof, motivation, historical behavior, timeliness and completeness of complaints, and observations of third parties results in the conclusion that the complainant’s allegations of Galiette’s conduct lack credibility.
Sexually harassing incidents may often not have corroborating witnesses or other evidence. A victim may delay reporting or documenting these incidents for reasonable fears. The absence of corroboration or a delay in reporting does not mean the harassment did not occur and is not necessarily fatal to a complaint. However, as previously discussed, the facts and circumstances presented in this case do not rise to the level of actionable harassment.
B. Reasonable accommodation
1. Applicable federal statutes, case law, and application
The complainant’s federal claim of discrimination based upon disability, brought under the ADA, is dismissed pursuant to Board of Trustees of the University of Alabama v. Patricia Garrett, et al, 531 U.S. ____, 121 S. Ct. 955 (2001). In Garrett, the court held that, under the Eleventh Amendment to the U.S. Constitution, Congress exceeded its authority when it made Title 1 of the ADA applicable to the states. Therefore, state employees cannot bring a Title 1 ADA claim against the state. As the commission notes "[t]his federal claim, however, may be largely moot, given the intervening decision in Board of Trustees of the University of Alabama, et al, v. Garrett, et al., _____ U.S. _____, 2001 LW (sic) 167628 (U.S. Supreme Court 2/21/01)." (Commission’s reply brief, p. 10.)
2. Applicable state statutes and case law
Applicable state law provides that "[i]t shall be a discriminatory practice in violation of this section: (1) 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).
"We note that although her claim is based largely on alleged violations of state statutes, ‘we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.’ Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996)." Ezikovich v. Commission on Human Rights and Opportunities, 57 Conn. App. 767, 774 (2000), cert denied, 253 Conn. 925, 754 A.2d 796 (2000). Notwithstanding that under Garrett the ADA does not apply in this case because the complainant is a state employee and the state and its agents are the respondents, the ADA’s analytical framework remains useful in resolving the pending state claim.
"Under the ADA, a plaintiff can state a claim for discrimination based upon her employer’s failure to accommodate her handicap by alleging facts showing (1) that the employer is subject to the statute under which the claim is brought, (2) that she is an individual with a disability within the meaning of the statute in question, (3) that, with or without reasonable accommodation, she could perform the essential functions of the job, and (4) that the employer had notice of the plaintiff’s disability and failed to provide such accommodation." (Internal quotation marks omitted; citations omitted.) Ezikovich, supra, 57 Conn. App. 774.
"The ADA does not provide a closed-end definition of what constitutes a reasonable accommodation. Instead, the ADA sets out a nonexclusive list of different methods of satisfying the requirement of reasonable accommodation, including ‘job restructuring, part-time or modified work schedules ….’ 42 U.S.C. § 12111 (9)(B)." Ezikovich, supra, 57 Conn. App. 775. "While the plaintiff would prefer a flexible, open-ended work schedule, an employer is not obligated to provide an employee the accommodation [s]he requests or prefers, the employer need only provide some reasonable accommodation." (Internal quotation marks omitted; citations omitted.) Ezikovich, supra, 57 Conn. App. 775. Further, a ‘no fixed time to start work’ proposal would be per se unreasonable. To establish a successful disability claim, a complainant must still be able to perform the essential functions of her job, and regular, reliable attendance is an essential job function. Ezikovich, supra, 57 Conn. App. 775 –76, n. 5.
3. Application of applicable state law
In applying this standard, the complainant satisfies the first, second, and third criteria. First, the respondents are subject to CFEPA. (FF 2.) In their brief, the respondents move to dismiss the complaints on the newly raised basis of lack of jurisdiction. They allege that "a purported failure to offer reasonable accommodations does not constitute a ‘discriminatory employment practice’ that this hearing officer is authorized to adjudicate by state law." (Respondents’ Post-Hearing Memorandum, pp. 6-7, February 13, 2001.) The motion to dismiss is denied because employers do have a legal duty under CFEPA, independent of the ADA, to provide a reasonable accommodation. Trimachi v. Connecticut Workers Compensation Commission, 27 Conn. L. Rptr. 469, 473 (2000); Ezikovich v. Commission on Human Rights and Opportunities, 57 Conn. App. 767, 774 (2000); Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. No. 19, 599 (February 28, 1994); Commission on Human Rights and Opportunities ex rel. Carter v. C.N. Flagg, CHRO No. 8840227, p. 23 (February 28, 2000); Commission on Human Rights and Opportunities ex rel. Grant v. Yale-New Haven Hospital, CHRO No. 9530477, pp. 25-26 (October 13, 1999); Commission on Human Rights and Opportunities ex rel. Duarte v. Hamilton Standard Division, CHRO No. 9610553, Ruling on Motion to Dismiss, pp. 6-8 (September 30, 1999); Commission on Human Rights and Opportunities ex rel. LaRoche v. United Technologies, FEP-PD-60-1 (August 28, 1978).
The complainant meets the second criteria as she is physically disabled within the meaning of CFEPA. (FF 1, 4, 5.) The complainant also satisfies the third criteria since she can perform the essential functions of her job with a reasonable accommodation to her arrival time at work. (Priestman, Tr. 1531; Respondent Exs. 3, 4, 5, 6, 7, 8, 208.)
The issue in dispute is the fourth criteria: whether the respondents had notice of the complainant’s disability and failed to provide her with a reasonable work accommodation. I find that the respondents offered the complainant a reasonable accommodation relative to her arrival time at work. I further find that the respondents lacked sufficient information why, as a result of her documented gastrointestinal disability, the complainant needed a private office. Alternatively, I find that a private office was not necessary to enable the complainant to perform the essential functions of her job. The respondents also lacked information and notice why, as a result of her documented gastrointestinal disability, the complainant needed job restructuring and different types of light bulbs.
The fact situation in this case is remarkably similar to that in Ezikovich and, therefore, will be resolved accordingly.
a. Flexible start time
The complainant alleges that because of her gastrointestinal disability she is unable to work a five-day week. She also alleges that because of this disability she is unable to consistently arrive at work by 8:15AM and leave by 5:30PM, as would be necessary to work a four-day week. To accommodate her needs, DSS proposes to allow her to work a part-time four-day week schedule, from 9:15AM to 5:30PM which would include an unpaid half-hour lunch period and two fifteen-minute breaks. An accommodation is reasonable if it allows the employee to perform the essential functions of her job. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Part-time work constitutes a reasonable accommodation if the employee can perform the essential functions of her job while working part-time. Parker v. Columbia Pictures Industries, 204 F.3d 326, 336 n. 5 (2nd Cir. 2000); Ezikovich, supra, 57 Conn. App. 775. DSS’s proposal reasonably accommodates the complainant’s medical condition by delaying her arrival time. The proposal also allows her sufficient time to perform the essential functions of her job. (Priestman, Tr. 1531.)
Although the complainant prefers a more flexible, open-ended work schedule, DSS’s proposal satisfies its legal obligation to "provide some reasonable accommodation." (Internal quotation marks omitted; citations omitted.) Ezikovich, supra, 57 Conn. App. 775.
Further, although both the complainant and the commission offer alternative accommodations, "[i]f more than one accommodation would allow the individual to perform the essential functions of the position, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." (Internal quotation marks omitted; citing 29 C.F.R. § 1630.9 (Appendix)(1998)) Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999) cert. denied 528 U.S. 818 (1999); See also 29 C.F.R. § 1630.9 (Appendix) (Rev. July 1, 2000).
While the respondents’ proposal is a reasonable accommodation, the alternatives proposed by the complainant and the commission are not. The complainant would prefer to "clock in" whenever time she arrives, without reprimand, and be permitted to make up the time at the end of the day. (FF 64, 65, 66.) The complainant objects to the respondents’ proposed part-time schedule "[b]ecause I’m a full time employee and I need full-time work. That’s why I accepted a full-time job." (Complainant, Tr. 649.) Her alternative, essentially a "no fixed start to work schedule", is per se unreasonable. Ezikovich, supra, 57 Conn. App. 775 n. 5; Earl, supra, 207 F.3d 1367. Further, allowing her to remain past 5:30PM is an undue hardship to the respondents in terms of building security and the federal requirement that a supervisor be present. (FF 42, 43, 73.)
The commission proposes that the complainant’s day officially begin at 8:15AM, but that her lunch and break periods be stacked from 8:15AM – 9:15AM, thereby giving the complainant an effective arrival time of 9:15AM. This alternative is also unreasonable. It would require DSS to pay the complainant for using her break periods before she actually arrived at work. This "stacking" alternative also ignores the fact that the complainant does use time during the workday for personal matters. (FF 45.)
The commission argues that the respondents must accept alternatives proposed by it and the complainant unless the respondents can demonstrate that the alternatives impose an undue hardship. However, a respondent need only show undue hardship when it is rejecting all accommodations. "A request to arrive at work at any time, without reprimand, would in essence require [the employer] to change the essential function of [the employee’s] job, and thus is not a request for a reasonable accommodation. [The employer] was therefore under no duty to engage in an ‘interactive process’ or to show undue hardship." Earl, supra, 207 F.3d 1367.
Here, however, the respondents themselves propose an accommodation that reasonably satisfies the complainant’s disability.
b. Requests for a private office
As a result of her disability, the complainant may have sudden, immediate needs to use the bathroom. (Complainant, Tr. 244, 634; Respondent Ex. 28/Commission Ex. 9.) Her current cubicle is located approximately 20 feet from a bathroom and, within her unit, is the closest cubicle to the bathroom. (Complainant, Tr. 629; Respondent Ex. 186.) Likewise, the complainant’s cubicle at DRS’s previous building was also located close to the bathroom. (Hyatt, Tr. 2713, 2718-19; Respondent Ex. 204.)
In addition to proximity to a bathroom, the complainant has sought a private office. Her current cubicle consists of one floor to ceiling wall, 6-7 foot high walls on two sides, and a 4-5 foot tall file cabinet she placed to partially obstruct the otherwise open fourth side. (Complainant, Tr. 425-27; Hyatt, Tr. 2645.)
Her reasons for the private office appear, however, unrelated to her documented gastrointestinal disability. The complainant seeks a private office to avoid harassment and intentional stress, as protection from a loud and obstructive work environment, and to perform her job undistracted and with greater concentration. (Complainant, Tr. 244-45, 417-18, 755.) The complainant claims that reducing this environmental stress would decrease the exacerbation to her system, thereby decreasing her incontinence. (Complainant, Tr. 1331.) In support of her request, the complainant submitted a report from her ob-gyn doctor that reducing her work schedule stress would be beneficial and that "[s]he would also benefit from a quiet work environment which will require a private office." (Respondent Ex. 28/Commission Ex. 9.) She also submitted a report from Elmcrest Behavioral Health Network advocating a private office to avoid "irrevocable and irreparable medical and psychological damages …." (Commission Ex. 40.)
These reports and testimony are an inadequate basis for obtaining a private office as a reasonable accommodation for a gastrointestinal disability for at least two reasons. First, even if a private office would be palliative, the reports do not indicate that the complainant cannot currently perform the essential functions of the job without an office or why a private office is necessary for the complainant to perform the essential functions of her job. (Priestman, Tr. 1501, 1533-34.)
Second, the reports and testimony do not adequately explain why a private office is a reasonable accommodation for a documented gastrointestinal disability. There is no psychiatric diagnosis of an identifiable stress disorder or depression. Rather, it appears that the complainant may suffer from general stress arising from interaction with her co-workers or from personal life pressures. "We do not believe, however, that the obligation to make reasonable accommodation extends to providing an aggravation-free environment." Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 728 (8th Cir. 1999) cert. denied 529 U.S. 1019 (2000).
c. Requests for job restructuring and light bulbs
The complainant and her health care providers made several requests for job restructuring as a reasonable accommodation for her gastrointestinal disability. (Respondent Ex. 41/Commission Ex. 72; Respondent Ex. 26/Commission Ex. 17; Respondent Ex. 24/Commission Ex. 13) The assertion of a disability claim requires a good faith interactive, cooperative effort between the employer and the employee to determine an appropriate accommodation. DeMello v. Connecticut Commission on Human Rights and Opportunities, 2000 WL 38477, *3 (Conn. Super., January 10, 2000); Colter v. Yale University, 2000 WL 559023, *3, n. 3 (D. Conn., March 24, 2000); Cannice, supra, 189 F.3d 727; Commission on Human Rights and Opportunities ex rel. Grant v. Yale-New Haven Hospital, CHRO No. 9530477, p. 26 (October 13, 1999).
Because these requests gave no specifics on the type of restructuring sought or why the restructuring was necessary, Priestman asked for more information. However, neither the complainant nor her health care providers ever specified the details or offered suggestions of what kind of job restructuring was sought to accommodate the disability. The complainant and her health care providers also never explained how this undefined restructuring was necessary to enable the complainant to perform the essential functions of her job. (Priestman, Tr. 1484, 1496, 1501, 1698-99; Respondent Ex. 54/Commission Ex. 18; Respondent Exs. 42, 51.)(FF 72.) Because the complainant did not participate in the requisite good faith dialogue, this claim is dismissed.
Likewise, the complainant sought reimbursement for expenses she incurred in replacing light bulbs at her desk as reasonable accommodation for her gastrointestinal disability. At the time of her request, the complainant provided no medical information on how the light bulbs were related to her gastrointestinal disability or were necessary for her to perform the essential functions of her job. Prior to providing the information and while DSS was investigating her request, the complainant purchased the light bulbs herself. The medical information that the complainant subsequently provided was from a psychiatric nurse. The respondents are entitled to documentation from an appropriate health care provider. The respondents’ questions regarding the appropriateness of a psychiatric nurse treating a gastrointestinal disability are reasonable and have never been adequately addressed by the complainant. (Priestman, Tr. 1758-63; Merbaum, Tr. 1909 – 14; Complainant Ex. 33; Respondent Ex. 182; Commission Ex. 82.)(FF 71.) Again, because the complainant did not participate in the requisite good faith dialogue, this claim is dismissed.
VII. Conclusions of Law1. The complainant is a member of one or more protected classes based on sex, female, and disability, loss of colon and chronic staphylococcosis/tropical pyomyositis.
2. No evidence was proffered that the complainant was discriminated against on the basis of her color, white.
3. The complainant’s claim of a hostile work environment arising from sexual harassment is not supported by a preponderance of the evidence. There is no credible evidence that the statements allegedly made to the complainant by Galiette were in fact made.
4. Even if Galiette made the statements that the complainant attributes to him, they do not, given the totality of the circumstances, rise to the level of a hostile work environment for one or more of the following reasons:
a. The harassing conduct did not culminate in any tangible employment actions;
b. The alleged conduct was infrequent, isolated, and not physically threatening;
c. the complainant’s conduct is inconsistent with her claim that she communicated to Galiette that his conduct was not welcome;d. the context of the remarks, from the viewpoint of a reasonable person and considering the gender and circumstances of the complainant, were not objectively hostile or of a sexual nature;
e. the conduct did not constitute a change in the complainant’s terms and conditions of employment;
f. the conduct did not create an abusive working environment;
g. the conduct did not make it more difficult for the complainant to do her job;
h. the complainant did not timely pursue a reasonable avenue provided by the respondents for her complaint; and/or
i. after the complainant filed her internal sexual harassment complaint with the respondents, she unreasonably failed to cooperate with the investigation.
5. The responents’ proposal of a part-time schedule affords the complainant a reasonable work accommodation. The proposal effectively accommodates the complainant’s medical condition, allows the complainant to perform the essential functions of her job, and permits DSS to satisfy its own management needs of having the complainant work a regular and predictable schedule.
6. Relative to her claims for job restructuring and reimbursement for costs incurred in purchasing light bulbs, the complainant failed to engage in the requisite interactive good faith dialogue with her employer to determine the appropriateness of the requested accommodation.
CHRO complaint number 9810371 and complaint number 9810581 are dismissed.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Ms. L. Charette
Atty. R. Pech
Atty. H. Barber
Commissioner P. Wilson-Coker
Mr. J. Halliday
Ms. M. Priestman
Mr. B. Merbaum