Chily v. Milford Automatics, Inc., Memorandum of Decision
CHRO No. 9830459
Commission on Human Rights and Opportunities ex rel.
John Chilly, Complainant
Milford Automatics, Inc., Respondent
October 3, 2000
MEMORANDUM OF DECISION
I. PROCEDURAL BACKGROUND
- On March 16, 1998, John Chilly ("the complainant") filed a complaint with the Commission on Human Rights and Opportunities ("the commission"), alleging that his employer, Milford Automatics, Inc. ("the respondent"), terminated his employment in violation of General Statutes §46a-60(a)(1) and the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. §12101 et seq., as protected by General Statutes §46a-58(a). Specifically, the complainant alleged that he was terminated because of his disability, Bell’s palsy. (Exhibit ["Ex."] CHRO-1)1
- The commission investigated the charges of the complaint, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified to public hearing on February 1, 1999, in accordance with General Statutes §46a-84(a).
- Due notice of the public hearing was sent to all parties and attorneys of record on February 16, 1999, in accordance with General Statutes §46a-84(b) and §46a-54-90 of the Regulations of Connecticut State Agencies ("regulations").
- On April 7, 2000, the complainant filed a motion to amend his complaint, claiming that he was terminated because the respondent perceived him as disabled. On April 14, 2000, I granted the motion over the objection of the respondent.2 (Hereinafter, the complaint and the amended complaint are jointly referred to as "the complaint.")
- All statutory and procedural prerequisites to the holding of the public hearing have been satisfied, and the complaint is properly before the human rights referee for decision.3
II. FINDINGS OF FACT
- The complainant is a toolmaker with more than twenty-eight years of experience. (Transcript ["Tr."] 7, 103; Ex. CHRO-10)
- The respondent is a "screw machine shop" that manufactures small precision machine parts such as those used in guns, sprinklers, computers, telephones, automobiles, and medical equipment. (Tr. 237-38) The respondent has historically employed between seventy and ninety employees. (Tr. 198)
- The respondent hired the complainant as its sole full-time toolmaker on or about August 25, 1997. (Tr. 59, 73, 160; Ex. CHRO-10) His primary function was as a "cutter-grinder," making metal-cutting tools from written plans. (Tr. 7; Ex. CHRO-14) Among the tools made by the complainant were drills, counterbores, countersinks, forming tools, gauges, and taps. (Tr. 104-05, 111) These tools, in turn, would be used to craft the precision parts and products ordered by the respondent’s customers. (Tr. 104-05)
- The respondent also employed several part-time toolmakers who worked mostly as fixture makers or gauge makers, and did little work as cutter-grinders. (Tr. 139, 144-46, 153)
- Some of the respondent’s part-time employees were skilled at making counterbores, although this was not their typical work. (Tr. 156). The respondent also purchased counterbores and other tools from outside vendors. (Tr. 106-07, 123)
- The complainant worked forty-seven and one-half hours per week. He earned $17.50 per hour for the first forty hours, and $26.25 per hour for the seven and half hours of mandatory overtime. (Tr. 31-32, Ex. CHRO-12)
- The complainant reported to Bill Rose, the respondent’s chief engineer, although Rose did not formally bear a supervisory title. (Tr. 10, 101-02, 160) Among Rose’s primary duties were preparing job orders and blueprints for the tools that needed to be made, prioritizing the order in which they would be made, and ensuring that the toolmakers were provided with their assignments.
- Once a toolmaker finished making a tool, he or Rose would either give it to a foreman or set-up man for immediate use on a pending job or give it to the attendant in the tool room for storage until it was needed. (Tr. 16-17, 67-68, 102-04, 109-10, 162) The same was true for tools purchased from vendors—the tools would either go to the tool room storage area or directly to a waiting job. (Tr. 107)
- If tools were not made precisely according to specification, they would not cut the precision parts correctly. In those instances, the foreman of the department using a particular tool would return it to Rose or, on occasion, directly to the toolmaker to be "reworked." (Tr. 18, 105-06, 110, 116-17)
- Tools made by the part-time toolmakers were sometimes, albeit infrequently, returned to Rose’s department as defective. (Tr. 112-13) However, the complainant’s tools—mostly counterbores—were returned more often than tools made by other employees, and Rose had to give tools back to the complainant "a few times" for reworking. (Tr. 116, 132, 137-38) Rose usually knew which of the returned tools had been made by the complainant, because the foreman would tell Rose and because Rose kept track of which tools were made for particular jobs. (Tr. 117-18) Sometimes, to save time, Rose would rework the defective tools himself and return them directly to the department using them. (Tr. 119; Ex. R-1)
- All of the respondent’s employees are required to pass a ninety-day probationary period before becoming eligible for full benefits. New employees are evaluated during the probationary period and the respondent may terminate an employee "for any reason" during that time. (Tr. 113, 119; Ex. CHRO-17) During the complainant’s probationary period, Rose was, for the most part, satisfied with the complainant’s work. (Tr. 11-12; Ex. R-1) He found the complainant to be proficient in making most of the basic tools, although he recognized that the complainant sometimes had difficulty making the counterbores correctly. (Tr. 117-18; Ex. R-1) Jeffrey Salsman, the respondent’s operations manager, complimented the complainant’s work on at least one occasion. (Tr. 14-15, 65-66)
- The respondent does not have a formal evaluation process, but informally assesses an employee’s work by looking at attendance, tardiness, the time required to make tools, and "how many times the tools come back to be reworked." (Tr. 152)
- In early December 1997, the complainant successfully completed his probationary period. (Tr. 12, 18-19; Ex. R-1)
- Both before and after the completion of the complainant’s probationary period, Salsman received complaints about the complainant’s work from other employees, mostly from foremen in the departments using—and returning— the tools made by the complainant. (Tr. 180) Salsman, in his own words, "had a discussion with him about it, but [he] didn’t warn him about it." (Tr. 181, 248; Ex. R-2)
- Rick Morel, one of the respondent’s foremen, oversees the work in the machine shop, ensuring that the machines are set up and functioning properly. "Setting up" a machine means readying it for production; this includes installing tools (either made by the toolmakers or purchased elsewhere) into the machines. Morel often installed tools made by the complainant and sometimes found the tools not to be cutting properly. He would usually complain to Rose or Salsman, who would arrange for the tool to be reworked. A few times he would bring the tools directly to the complainant; sometimes, to save time, he would fix the tools himself. (Tr. 303-08, 313-17)
- In December 1997, Salsman discussed with Barbara Watts (the respondent’s controller for more than seven years) his dissatisfaction with the complainant’s work. Salsman informed her that he wanted to place an advertisement for another toolmaker. (Tr. 324; Exs. R-8, CHRO-15) In late December 1997, the respondent began to run an advertisement in a local newspaper seeking a full-time toolmaker.5 No other toolmaker was hired during the complainant’s tenure with the respondent. (Tr. 264)
- The respondent gives all of its employees a handbook that, among other
things, identifies various forms of misconduct that "will result in
disciplinary action or discharge." (Ex. CHRO-17) Poor quality of an
employee’s work is not identified as an act of misconduct, although the
There are, of course, actions which, while not satisfactorily covered in the above rules, are considered misconduct in an orderly conducted business. The fact that such an act is not specifically listed in the rules
will not excuse the offender from disciplinary action.
(Id.)Employees have, in fact, been subjected to disciplinary action for poor work quality. (Exs. CHRO-24, -27, and -36)
- The respondent’s disciplinary process generally consists of verbal warnings, written warnings, suspension, and, should a problem continue, termination. (Ex. CHRO-17; Tr. 165-66, 169-70)
- During his tenure with the respondent, the complainant never received any written or verbal warnings nor was he subjected to any disciplinary actions. He received no indication that his employment was in jeopardy. (Tr. 38, 58, 59, 65, 95, 169, 282; Exs. R-2, CHRO-9)6
- In April 1996, one employee received first a verbal and then a written warning for substandard work. According to the written warning, "employee is continuing to make excessive amount of scrap parts." (Ex. CHRO-24)
- In February 1998, another employee received a verbal and a written warning for substandard work. The written warning stated, "Too many rejects over 80%. Continue[d] violation will result in suspension." (Ex. CHRO-27)
- In February 1998, an employee received a notice of suspension after receiving two earlier written warnings for substandard work. The notice stated, "Employee continues to make 80% to 100% rejects. This employee is suspended for one day on 2-17-98. Continue[d] violation will result in employee’s dismissal." (Ex. CHRO-36)
- At least one other toolmaker (after the complainant’s termination) took as long as six months before he mastered his craft and only then were his tools not sent back as defective. (Tr. 130-32)
- For several weeks in late February and early March 1998, the complainant suffered from severe headaches. On March 4, 1998, the complainant awoke with the left side of his face paralyzed. His speech was impaired, his left eye lacked muscle reaction and was difficult to close, the left side of his face had a drooping appearance, and he found eating and drinking to be difficult. (Tr. 20, 23, 212; Ex. CHRO-4)
- Later that day, the complainant consulted his personal physician, Victor Sawicki, who diagnosed the complainant’s condition as Bell’s palsy. (Exs. CHRO-3, CHRO-5) On March 5, 1998, the complainant saw Thomas Byrne, a neurologist, who observed "a left peripheral facial palsy which is characterized by inability to close the left eye and move the left lower side of the face and wrinkle the left forehead." After evaluating the complainant, Byrne concurred with Sawicki’s diagnosis. (Tr. 211-14, 220; Ex. CHRO-4)
- Bell’s palsy is a partial or complete paralysis of the facial muscles, usually confined to one side of the face. (See Stedman’s Medical Dictionary, 1285 (26th ed., 1995)) It is considered an "idiopathic" disease, which means that the specific cause for the symptoms is undetermined. (Tr. 214) There are varying degrees of Bell’s palsy; the complainant suffered from a very obvious and severe case. (Tr. 214-15, 220-21, 224)
- The complainant, Sawicki, and Byrne all believed the Bell’s palsy would not interfere with the complainant’s return to work. (Tr. 42; Ex. CHRO-5) According to Sawicki’s memorandum of March 10, 1998, the complainant "ha[d] no work restrictions." (Ex. CHRO-5)
- The complainant had briefly suffered from Bell’s palsy about thirteen years earlier and made a full recovery within three months. The respondent was never aware of the earlier incident. (Tr. 43, 60; Ex. CHRO-4)
- The complainant returned to work on March 6, 1998, sought out Salsman, and explained that he did not feel well, wished to go home for the day, and would probably need to take a few days off for medical tests. (Tr. 21)7 Otherwise, the complainant was ready to resume work. The complainant gave Salsman notes from the two doctors explaining that he had been seeking medical treatment on March 4 and 5; the notes did not mention the name or nature of the complainant’s ailment. (Tr. 21, 70; Ex. CHRO-3) At the time of this meeting, the complainant’s speech was badly slurred, his left eye remained wide open, and the left side of his face bore the readily obvious symptoms of the palsy. (Tr. 25, 31, 92, 95, 213-15; Ex. CHRO-4) Salsman appeared surprised or shocked upon observing the complainant’s features. (Tr. 95)8
- Salsman and the complainant spent about five minutes together (Tr. 193), at the end of which time Salsman informed the complainant that he was terminated because he was "not suitable" to work for the respondent. (Tr. 21; Exs. CHRO-1, R-2) Within the next hour, Salsman gave the complainant a written notice of termination that indicated that the complainant was discharged because he was "not suitable." (Tr. 195; Ex. CHRO-16)9
- Rose was not aware that Salsman intended to discharge the complainant; in fact, Rose had prepared new assignments for the complainant in anticipation of his return from his two-day absence. (Tr. 126, 133; Ex. R-1)
- The respondent did not replace the complainant until mid-April 1998, when it hired Michael Perzanowski as a full-time toolmaker. (Tr. 267-68; Ex. CHRO-20) Perzanowski voluntarily left the respondent in September 1998 (Ex. CHRO-20), and in November 1998 the respondent hired George Marquis as a full-time toolmaker. (Tr. 266, 270; Ex. CHRO-19) Neither of these employees suffered from Bell’s palsy or other physical disability. (Tr. 273)
- The complainant saw Dr. Byrne again on April 29, 1998. (Tr. 44; Ex. CHRO-7) At that time he still suffered from "a moderately severe left facial palsy" but there was clear improvement in some of his motor functions. (Tr. 224; Ex. CHRO-7)
- The complainant’s symptoms improved slowly between April and August 1998 (Tr. 93, 224-25; Ex. CHRO-7), although the visible effects on his face and some difficulty eating, drinking, speaking, and seeing lasted until September or October 1998. (Tr. 24, 93-94)
- After his discharge, the complainant looked for toolmaking and machinist positions with other companies. He found it difficult to talk on the phone and was uncomfortable with the possibility of a face-to-face interview because of his facial appearance and his slurred speech. He faxed or mailed resumes to potential employers and had one or two interviews at which he presented a note from Dr. Sawicki explaining his condition. (Tr. 38, 71-72, 78, 93; see Ex. CHRO-5)
- From March until late August 1998, the complainant received $8,073 in unemployment compensation ($351 per week for twenty-three weeks). (Tr. 39, 360-61; Ex. CHRO-41)
- On or about August 25, 1998, the complainant was hired by another company as a toolmaker. By then, most, but not all, of his facial functions had returned. (Tr. 73)
- Since being hired in his new position, the complainant has worked approximately fifty hours per week, receiving $15.00 per hour for the first forty hours, and "time-and-a-half" for overtime. (Tr. 37, 38-39)
- At the time of the public hearing, the complainant still had a little trouble focusing with his left eye, but this did not interfere with his ability to perform his new job. (Tr. 24, 41, 84)
- The complainant was not the only employee who was stricken with Bell’s palsy. A machine operator named Galo Acosta began to work for the respondent in July 1994. At one point in 1995 or 1996, Acosta was stricken with a mild Bell’s palsy that, but for a short time off upon a doctor’s recommendation, did not affect his ability to work.10 (Tr. 187-88, 256, 347-49) The symptoms were so mild that Acosta himself was not even aware of them until a co-worker pointed out that something appeared wrong with his face. (Tr. 349) Salsman did not find Acosta’s palsy to be particularly noticeable; he only was aware that Acosta’s eye drooped a little. (Tr. 187) Acosta’s symptoms lasted only five weeks. (Tr. 353)
- Acosta voluntarily left his employment with the respondent in September 1997 to take a higher paying job with another company. (Tr. 339, 346) The respondent rehired Acosta in March 2000. (Tr. 355; Ex. CHRO-24) Acosta did not suffer from Bell’s palsy when he was rehired.
III. DISCUSSION AND CONCLUSIONS
A. Liability under the ADA
The complainant alleges that his termination constitutes unlawful discrimination on the basis of his disability—or his perceived disability—in violation of both the ADA and the Connecticut Fair Employment Practices Act ("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).
Courts generally analyze disability discrimination claims using the three-step, burden shifting paradigm established for Title VII11 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); see Ann Howard’s Apricot’s Restaurant, Inc. v Commission on Human Rights and Opportunities, 237 Conn. 209, 225 (1996). If the complainant satisfies his burden, the burden of production shifts to the respondent to articulate (but not prove) a legitimate, nondiscriminatory reason for the employment decision. Should the respondent offer such reason, the presumption disappears and the burden returns 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. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. --, 120 S.Ct. 2097, 2106 (2000); St. Mary’s Honor Center v. Hicks, 509 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). In the present case, to prove his prima facie case under either state or 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; Commission on Human Rights and Opportunities ex rel. Canfield-Knowles v. Gilman Bros., CHRO No. 9240221, p. 12 (August 8, 1995); cf. Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 316 (2nd Cir. 1999) (age discrimination case).
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.). According to the ADA and its implementing regulations, a person is disabled if he (A) has a physical impairment that substantially limits one or more of his major life activities, (B) has a record of such impairment, or (C) 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, 478 (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 (or perceived 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 uncontroverted medical evidence demonstrates that the complainant suffered from Bell’s palsy, which impaired his nervous system, facial muscles, left eye, and speech organs. Thus, he has an impairment under the ADA. See Barnes v. The Goodyear Tire and Rubber Company, 1998 WL 345449 (Tenn. Ct. App.), rev’d on other grounds, 2000 WL 688864 (Tenn.) (temporary bout of Bell’s palsy deemed impairment under Tennessee statute whose language mirrored that of ADA).
Not every impairment, however, qualifies as a disability protected by the ADA. The complainant must also demonstrate that his impairment 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, supra, 527 U.S. 483. The term "major life activities" refers to functions "such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. §1630(2)(i); Heyman v. Queens Village, supra, 198 F. 3d 72-73. This list is not exhaustive and it has been augmented by numerous court decisions. The commission argues that the complainant was substantially limited "for at least six months" in the major life activities of seeing, speaking, caring for himself, eating, drinking, sleeping, coordinating his eye functions, controlling his facial muscles, and smiling. (See commission’s post-hearing brief, pp. 13-14.)
An individual is substantially limited in a major life activity other than working if he is
- Unable to perform a major life activity that the average person in the general population can perform; or
- 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). Factors that should be considered in assessing whether one is substantially limited in a major life activity include
- The nature and severity of the impairment;
- The duration or expected duration of the impairment; and
- The permanent or long-term impact, or the expected permanent or long term impact of or resulting from the impairment.
29 C.F.R. §1630.2(j)(2). In addition, with respect to the major life activity of working,
The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
29 C.F.R. §1630.2(j)(3).
Potentially long-term impairments, if severe, may constitute disabilities, even if the impairments are not permanent. Generally, however, short-term impairments do not rise to the level of a disability under the ADA. Cousins v. Howell Corp., 52 F.Supp.2d 362, 364 (D.Conn. 1999), citing Katz v. City Metal Co., 87 F.3d 26, 31 (1st Cir. 1996). Indeed, the Second Circuit has found that short-term impairments of three and one-half months and seven months did not amount to disabilities under the ADA. See Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2nd Cir. 1999) (temporary impairment lasting three and one-half months too short to be considered substantially limiting); Colwell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2nd Cir. 1998) (seven month impairment not considered substantially limiting). In the present case, the effects of the complainant’s palsy were too short in duration for me to consider them as substantially limiting.
The complainant’s palsy not only was a temporary condition, but it had no impact on his ability to work and only a short-term effect on a few other major life activities. Within days of the onset of the disease, the complainant’s doctor wrote that the complainant’s condition required no work restrictions. Indeed, the complainant was ready to return to work almost immediately and ultimately found a new job less than six months after the onset of the palsy. By then, he bore few lingering effects, none substantially limiting any of the activities listed by the commission (some of which do not even rise to the level of major life activities). In fact, the complainant himself conceded that he lost no life activity as a result of his impairment. See Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884 (6th Cir. 1996) (employee’s admission that she lost no major life activity led court to determine that she was not disabled under ADA). At worst, only the minor effects on the complainant’s vision may have lasted until the public hearing. Accordingly, I conclude that the complainant was not physically disabled under the first ADA definition.
According to the ADA, however, the definition of "disability" also includes the state of "being regarded as having such an impairment." 42 U.S.C.§12102(2)(C); see also 29 CFR §1630.2(l). The term "such" refers to an impairment described in §12102(2)(A)—that is, one that substantially limits a major life activity. The commission posits that, even if the complainant is not disabled, the respondent regarded and treated him as disabled, thus entitling him to the protection of the ADA.
The EEOC regulations elaborate upon §12102(C) by stating that a person regarded as having a disability:
- Has a physical or mental impairment that does not substantially limit a major life activity but is treated by a covered entity as constituting such limitation;
- Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
- Has none of the impairments defined [by the EEOC regulations] but is treated by a covered entity as having a substantially limiting impairment.
29 C.F.R. §1630.2(l); Heyman v. Queens Village, supra, 198 F.3d 73 (2nd Cir. 1999); Francis v. City of Meriden, 129 F.3d 281, 284-85 (2nd Cir. 1997). In the present case, the complainant asserts that he falls under the first category.
The cause of action for perceived disabilities, or for actual disabilities perceived as substantially limiting, is designed to challenge the "myths, fears and stereotypes" associated with disabled persons. 29 C.F.R. §1630.2(1); Sutton v. United Air Lines, supra, 527 U.S. 489-90. As the United States Supreme Court emphasized in School Board of Nassau County v. Arline, a case brought under the Federal Rehabilitation Act of 1973, 29 U.S.C. §§701 et seq., by defining "handicapped individual" to include individuals regarded as handicapped, "Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." 480 U.S. 272, 284 (1987).12 Similarly, the Second Circuit Court of Appeals has recognized that the third prong of the ADA definition of "disability" (and its counterpart in the Rehabilitation Act) aids those who are stigmatized by what appears to be, but is not, a disabling condition:
By subjecting to liability employers who discriminate on the mistaken belief that an individual has a disability . . . the acts deter discrimination against those who actually have such disabilities. Also, by outlawing such discrimination, the acts address the problem of the employer who, based on nothing more than superstition or irrational fear, regards an individual as having a substantially limiting impairment when the individual is either capable of working or has no impairment at all.
Francis v. City of Meriden, 129 F.3d 281, 287 (2nd Cir. 1997).
To succeed under §12102(C), the complainant must prove that the respondent regarded him as impaired and believed the impairment substantially limited a major life activity, even if the impairment did not do so. Sutton v. United Air Lines, supra, 527 U.S. 489-90; Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 153-54 (2nd Cir. 1998); Equal Employment Opportunity Commission v. Blue Cross Blue Shield of Connecticut, 30 F.Supp.2d 296, 305 (D.Conn. 1998). The first issue, then, is whether the respondent knew or believed that the complainant had an impairment. After being absent for two days, the complainant returned to work, his face bearing obvious indicia of the palsy, and he spoke almost immediately with Salsman. The complainant explained that he did not feel well, intended to go home for the day, and needed some medical tests. The complainant also provided doctors’ notes explaining his absence the two previous days. The notes do not reveal the name or nature of the complainant’s affliction and the parties disagree whether the complainant actually identified the malady from which he suffered. However, even assuming that the respondent was not aware that the complainant had Bell’s palsy, the complainant’s features and speech difficulty were obvious—indeed, much more revealing than a medical term—to the apparently surprised Salsman,13 who in turn promptly fired the complainant, telling him that he was "not suitable" to work for the respondent. Thus, it is reasonable to conclude that the respondent, even if unaware of the exact diagnosis of the complainant’s condition, perceived the complainant as suffering from some sort of impairment. See Zale v. Sikorsky Aircraft Corp., 2000 WL 306943 *2 (D.Conn); Equal Opportunity Employment Commission v. Blue Cross Blue Shield of Connecticut, supra, 30 F.Supp.2d 307.
The inquiry does not end here, however, because the complainant must also demonstrate that the respondent perceived his impairment as substantially limiting his ability to perform a major life activity. Whether the impairment actually affected the complainant in this way is irrelevant to the question; all that matters is the employer’s perception and belief. Reeves v. Johnson Controls, supra, 140 F.3d 153; Francis v. City of Meriden, supra, 129 F.3d 284. The complainant has offered no persuasive evidence (and the commission has made no convincing argument based on the record) that the respondent regarded his palsy as a condition substantially affecting the major life activity of work; nor is there any evidence (or even argument) that the respondent concerned itself one iota with any of the complainant’s other major life activities.14 Certainly nothing in the doctors’ notes that the complainant gave to Salsman suggests such impacts on the complainant. At most, one can infer that Salsman believed that the complainant’s palsy compromised the complainant’s ability to perform his own particular job. Even assuming that Salsman fired the complainant for this reason, the complainant still has not met his burden, because "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. §1630.2(j)(3); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523 (1999); Reeves v. Johnson Controls, supra, 140 F.3d 154. Instead, the complainant must show that the respondent perceived him as substantially limited in his ability "to perform a class of jobs or a broad range of jobs . . ." 29 C.F.R. §1630(2)(j)(3)(i); Reeves v. Johnson Controls, supra, 140 F.3d 154. The complainant has presented no evidence on this point and, accordingly, I conclude that he has failed to demonstrate that, at the time of his discharge, the respondent regarded him as disabled under 42 U.S.C. §12102(2)(C).
B. Liability under FEPA
Although the complainant is neither disabled nor regarded as disabled under the ADA, I am not precluded from finding otherwise under state law. 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 for 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 could lead to a different result than the federal definition. The complainant, for one thing, need not delve into the issue of limitations to his major life activities. 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." Gilman Brothers Co. v. Commission on Human Rights and Opportunities, 1997 WL 275578 *4 (Conn. Super.)
In light of the dictionary definitions, I do not find that the complainant’s impairment was chronic. Bell’s palsy, by its very nature, is not a progressive disease. And while the length and severity of the palsy may vary among those stricken, the complainant was generally asymptomatic by the time he obtained a new job in August 1998, and he certainly appeared to be almost entirely symptom-free at the public hearing. Thus, I conclude that the complainant was not disabled under FEPA.
The threshold issue, therefore, is narrowed to whether the respondent perceived the complainant as disabled under FEPA. Just as the state definition of disabled is different than and construed more broadly than the federal definition, so too is the determination of a perceived disability, which is not predicated upon the federal interpretation of either "disabled" or "regarded as disabled." Although FEPA does not explicitly offer protection to employees who are perceived as disabled, case law has consistently found such protection implicit within §46a-60. See Bauman v. Commission on Human Rights and Opportunities, 1996 WL 92240 *2-3 (Conn. Super.) (recognizing, without discussion, cause of action for ‘perceived disability’); Commission on Human Rights and Opportunities ex rel. Tucker v. General Dynamics Corporation, Electric Boat Division, 1991 WL 258041 *6 (Conn. Super.) (employee perceived as suffering from a particular handicap falls within the protection of Gen. Stat. §46a-60(a)(1)); Commission on Human Rights and Opportunities ex rel. Scarfo v. Hamilton Sundstrand Corporation, CHRO No. 9610577, pp. 62-65 (September 27, 2000) (a comprehensive survey of the pertinent cases); Commission on Human Rights and Opportunities ex rel. Walsh v. Soundview Nursing Center, CHRO No. 9430024, pp. 12, 13 n.13 (January 28, 2000) (citing to Tucker); Commission ex rel. Knowles v. Gilman Brothers, CHRO No. 9240221, supra, 18-21 (following Tucker and citing to several decisions by other commission hearing officers); Commission on Human Rights and Opportunities ex rel. Diaz v. Greater Bridgeport Transit District, CHRO No. 8320481 (April 20, 1990). As Hearing Officer Schoenhorn stated in Knowles,
Denying claims because the victim of discrimination was not actually disabled is as offensive as denying a race-based claim solely because the wrong-doer mistakenly thought that the victim was of a particular ethnic or racial group. It is the act of discrimination that these laws are intended to prohibit, regardless of whether the animus was improperly directed.
Commission ex rel. Knowles v. Gilman Brothers, supra, 19-20.
As discussed above, Salsman’s shocked reaction to the complainant’s appearance and his swift determination to discharge the complainant on March 6, 1998 support an inference that the respondent perceived the complainant as seriously impaired and, more likely than not, unable to perform his particular job. (FEPA, unlike the ADA, does not concern itself with the an employee’s inability—or perceived inability—to perform a class of jobs or broad range of jobs.) The close resemblance of the symptoms of Bell’s palsy to those of a stroke, for example, make it easy to understand why one might perceive the complainant as suffering from a major, long-term malady.
The absence of any disciplinary actions or negative performance evaluations prior to the onset of the complainant’s palsy also supports an inference that as of March 6, 1998 the respondent perceived the complainant as disabled and thus no longer able to work. Heyman v. Queens Village, supra, 198 F.3d 73.
Salsman claims that he did not know that the complainant had Bell’s palsy and that, even if he did, he would not have regarded him as disabled, given the respondent’s prior experience with Galo Acosta. As to the first point, even if Salsman is to be believed, as long as he was aware of the complainant’s condition, his ignorance of the name or exact nature of the disease would not shield him from liability. See Zale v. Sikorsky Aircraft Corp., supra, 2000 WL 306943 *2; Equal Opportunity Employment Commission v. Blue Cross Blue Shield of Connecticut, supra, 30 F.Supp.2d 307. Furthermore, the respondent’s experience with Acosta in the mid-1990s is readily distinguishable from the present situation. There is no evidence that the respondent knew then that Acosta suffered specifically from Bell’s palsy, so Salsman’s boast of his sensitivity to those with the specific disease rings hollow. In fact, if, as Salsman claims, the respondent did not perceive Acosta as disabled, it is because Acosta bore little indication of the disease; Salsman saw, at most, a drooping eye. Moreover, the fact that the respondent readily rehired Acosta in March 2000 is utterly meaningless, because Acosta’s bout with Bell’s palsy was at least four years in the past and he suffered no residual effects. In all likelihood, the person rehiring him had little or no recollection of Acosta’s long-past condition.
For the foregoing reasons, I conclude that the respondent perceived the complainant as disabled under FEPA.
Having satisfied the first element of his prima facie case, 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 functions15 of such position." 29 C.F.R. §1630.2(m). The determination of whether a person is qualified requires an individualized, fact-specific assessment focusing on the time of the alleged discriminatory action. Worthington v. City of New Haven, 1999 WL 958627 *9 (D.Conn.), citing Castellano v. City of New York, 142 F.3d 58, 67 (2nd Cir. 1998).
The record amply demonstrates that the complainant was qualified to work as a toolmaker for the respondent. At the very minimum, his twenty-eight years of toolmaking experience qualify him for the position from which he was discharged. Moreover, he successfully passed his ninety day probationary period and his supervisor was generally satisfied with his work. It is true that he had difficulty making one particular tool (the counterbore), but, unlike several other employees, he was never disciplined for inadequacies in his work and his personnel file contains no mention of his shortcoming. Accordingly, I find that the complainant was sufficiently qualified, without any need for accommodation, to satisfy the second prong of his prima facie case.
To satisfy the third prong of his prima facie case, the complainant must demonstrate that he suffered an adverse employment action. His termination of employment indisputably qualifies as such; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2nd Cir. 1998); and I conclude that the complainant has satisfied the third element of his prima facie case.
To meet 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. Several circumstances allow me to draw such an inference, one of the most telling being the proximity of the complainant’s termination to his encounter with Salsman. (As explained above, Salsman’s claim that he never even noticed the complainant’s slurred speech or distorted features is not credible.)
The complainant’s termination was preceded by a personnel history devoid of any warnings or other discipline under the respondent’s written policy. Others with performance problems were subjected to progressive discipline, allowing them an opportunity to improve. The suddenness of the discharge, when coupled with this track record, suggests that Salsman was moved to action because of the complainant’s perceived disability.
Salsman testified that the respondent did not want to terminate the complainant in December 1997 and then be left with no full-time toolmaker. Accepting this as true for the sake of discussion, the respondent’s motivation becomes all the more apparent when Salsman discharged the complainant on sight, with no concern whatsoever about replacing him, once he perceived the complainant’s condition.
Furthermore, when the respondent finally employed a toolmaker to take the complainant’s place, it hired an individual with no physical disabilities. This, too, satisfies the fourth prong of the prima facie case, either by itself or in combination with the other factors already noted. See Reeves v. Sanderson Plumbing, supra, 120 S.Ct. 2106 (case brought under the Age Discrimination in Employment Act); Holt-KMI-Continental, Inc., 95 F.3d 123, 129 (2nd Cir. 1996) (race discrimination claim under Title VII); Ennis v. Nat’l Ass’n of Business & Educational Radio, supra, 53 F.3d 57-59 (4th Cir. 1995) (ADA claim); Roush v. KFC Management Company, 10 F.3d 392, 396 (6th Cir. 1993) (age discrimination claim under ADEA); Commission ex rel. Knowles v. Gilman Brothers, supra, 21 (disability claim under FEPA). As noted above, the complainant’s burden is a relatively simple one at this point, as it is one of production, not persuasion. Accordingly, I find that the complainant has provided sufficient evidence to satisfy the final element of his prima facie case.
Once the complainant has made out a prima facie case, thus raising 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 action. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507-08 (1993); Ann Howard’s Apricots Restaurant v. Commission on Human Rights and Opportunities, supra, 237 Conn. 225. The respondent has met its burden by proffering what appears to be a typical, rote justification: the complainant’s work was not meeting company standards. Thus, the inference of discrimination created by the prima facie case disappears and the burden must return to the complainant to prove, with either direct or circumstantial evidence, 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, 2000 WL 158325 *7, 11 (Conn. Super.).
The United States Supreme Court recently clarified what an employee needs to prove in order to satisfy his ultimate burden of persuasion. Reeves v. Sanderson Plumbing, supra. According to the court,
‘The factfinder’s disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.’
Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. . . . In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. . . .
(Citations omitted; emphasis in original.) Id. at 2108. Thus "a prima facie case and sufficient evidence to reject the employer’s explanation may permit a finding of liability . . ." Id. at 2109. The complainant has satisfied his burden on both counts, with the strong evidence supporting the second and fourth criteria of the prima facie case likewise demonstrating that the respondent’s proffered justification masks a discriminatory intent.
The preponderance of the evidence belies the respondent’s assertion that the complainant’s termination was due to the poor quality of his work throughout his six month tenure. First, although the complainant unquestionably had problems with his work, it was limited to the construction of only one particular tool, the counterbore; otherwise he was clearly proficient in making all of the other tools, as both Rose and Salsman acknowledged. Rose, the complainant’s immediate supervisor, was in fact surprised to learn of Salsman’s unilateral decision. Moreover, the complainant was not the only one making counterbores, and not all of the defective counterbores—especially the ones stored in the tool crib—could or should be attributed to him. Second, the complainant unconditionally passed his ninety day probationary period, a time when the quality of his work would have been closely scrutinized. Third, Salsman’s claim that he could ill-afford terminating the complainant in December 1997 without someone to replace him appears disingenuous in light of his abrupt turnaround in March 1998 when the complainant returned to work bearing the obvious impacts of his palsy.
The complainant never received any written or verbal warnings in accordance with the respondent’s discipline policy, and his personnel file reveals no documentation of problems with his work. Although both Salsman and Rose explained that the disciplinary steps were used for employee misconduct and not applied to situations involving poor work quality, evidence to the contrary undercuts their explanation. Between April 1996 and February 1998, at least three other employees were subjected to progressive discipline for poor quality work. Based on the record before me, none was ever fired; for all intents and purposes, each step in the disciplinary process afforded the offending employee a chance to address his own deficiencies and improve his work. That, in fact, is the purpose of progressive discipline. The complainant’s work was not so deficient as to warrant discipline, nor was it as bad as that of others who were warned but not terminated. His relatively unblemished work record stands in stark contrast with respondent’s depiction of an unqualified employee. Ironically, the complainant, who did not receive any warnings for his work quality, and who did not warrant discipline for what the respondent considered typical misconduct, was never given such a chance to improve (assuming such improvement was even needed). Instead, he was summarily terminated the moment he showed up for work with speech difficulties, severe facial distortions, and notes from his doctors.
Such timing strongly suggests that the respondent was not motivated by the complainant’s work history. Nevertheless, Salsman argued that he had already been planning to terminate the complainant when he returned from his two days’ sick leave and, in fact, had requested that the controller prepare a termination notice several days earlier. The respondent’s explanation requires one to put great stock in a difficult-to-fathom coincidence. I cannot do so, especially when Salsman’s credibility has been undermined on other issues such as his denial that disciplinary measures were taken for substandard work and, more important, his implausible claim that he did not notice the complainant’s impairments the morning of March 6, 1998.
The complainant has not only firmly proven his prima facie case, in doing so he has adduced ample and persuasive evidence to reject the respondent’s proffered explanation and to demonstrate that unlawful discrimination was the true motive behind the respondent’s decision to terminate the complainant. Nothing in the complainant’s work experience reasonably supports the respondent’s explanation for suddenly discharging him in a manner so inconsistent with the way other employees were disciplined. While this record affords no direct window into Salsman’s thoughts, it is far more likely that, in the mere minutes after Salsman observed the complainant’s visage, he was focused on the complainant’s impairment rather than the complainant’s work performance. Salsman’s shock and hasty reaction represent precisely those stereotyped behaviors the legislature has sought to eradicate. Accordingly, I conclude that the complainant has carried his ultimate burden and his claim that he was wrongfully terminated must be sustained.
When the presiding human rights referee determines that unlawful discrimination has occurred, he or she is authorized to award relief, the goal of which is to make the complainant whole and to place him in the position he would have been in absent the respondent’s discriminatory action. General Statutes §46a-86; Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 144 (2nd Cir. 1993), cert. denied, 510 U.S. 1164 (1994); Worthington v. City of New Haven, supra, 1999 WL 958627 *14.
Back pay relief is specifically authorized by General Statutes §46a-86(b). The complainant claims back pay from the date of his termination, March 6, 1998, through August 25, 1998. His claim is unembellished by demands for the value of insurance, bonuses, or other perquisites of the job, or even the small difference between his present salary and his salary with the respondent. As the commission readily acknowledges, the claim for back pay must be offset by any interim earnings, here limited to unemployment compensation of $8,073. I find that the complainant is entitled to recover the following:
Hours/week Hourly rate OT rate No. of weeks Total
7.5 x $26.25 x 23 = $ 4,528.13
Offset (unemployment compensation) - 8,073.00
TOTAL BACK PAY AWARD $12,555.13
An award of pre-judgment interest is within the discretion of this tribunal; it is an appropriate means of fully restoring the complainant to the economic position he would have been in but for his discharge. Frank’s Supermarket v. Michaud, Docket No. CV95-549356S, Superior Court, judicial district of Hartford/New Britain at Hartford, pp. 17-18 (April 22, 1996); Commission on Human Rights and Opportunities ex rel. Myles v. Ice Cream Delight and Bakery, Inc., CHRO No. 9310191, pp. 9-10 (September 1, 1999). In fact, according to the Second Circuit Court of Appeals, it is "ordinarily an abuse of discretion not to include pre-judgment interest on a back pay award." Saulpaugh v. Monroe Community Hospital, supra, 4 F.3d 145.
This tribunal, like state and federal courts, has the discretion to choose a pre-judgment interest calculation designed to make the complainant whole. Silhouette Optical Ltd. v. Commission on Human Rights and Opportunities, Docket No. CV95-520590S, Superior Court, judicial district of Hartford/New Britain at Hartford, p. 21 (January 27, 1994). An appropriate rate of interest, used in other decisions, is 10%. See General Statutes §37-3a; Frank’s Supermarket v. Michaud, supra, 18-19; Silhouette Optical Ltd. v. Commission, supra, 11; Commission on Human Rights and Opportunities ex rel. Rose v. Payless Shoesource, Inc. CHRO No. 9920353 (November 1, 1999). Furthermore, the interest should be compounded, with interest accruing one in year bearing annual interest thereafter. Saulpaugh v. Monroe Community Hospital, supra, 4 F.3d 145; Frank’s Supermarket v. Michaud, supra, 18-19; Silhouette Optical Ltd. v. Commission, supra, 21-22; Commission ex rel. Myles v. Ice Cream Delight, supra, 10.
The complainant must make reasonable efforts to mitigate his damages by seeking alternative employment after his discharge. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1182. The respondent, however, bears the burden of proving, as an affirmative defense, that the complainant did not do so. Dailey v. Societe Generale, 108 F.3d 451,456 (2nd Cir. 1997) Under the circumstances of this case, I find that the complainant did use reasonable diligence to find a new position. The respondent, on the other hand, did not even assert such affirmative defense, much less present persuasive evidence on this matter.
IV. FINAL DECISION AND ORDER
- The respondent shall pay to the complainant the sum of $12, 553.13 for back pay, along with interest compounded annually at the rate of 10% from August 26, 1998 until the date of this decision.
- Pursuant to General Statutes §37-3a, the respondent shall pay post-judgment simple interest on the award of damages. Said interest shall accrue daily on the unpaid balance, from the date of this decision at the rate of 10% per year.
- The respondent shall cease and desist from all acts of discrimination prohibited by state or federal law, and shall provide a non-discriminatory work environment pursuant to all state and federal law.
- The respondent shall post in prominent and accessible locations, visible to all employees and applicants for employment, such notices regarding statutory anti-discrimination provisions as the commission shall provide. The respondent shall post the notices within three working days of their receipt.
- Should prospective employers seek references concerning the complainant, the respondent shall provide only the dates of said employment, the last position held, and the rate of pay. In the event additional information is requested in connection with any inquiry regarding the complainant, the respondent shall require written authorization from the complainant before such information is provided, unless it is required by law to provide such information.
- The respondent shall not engage in any retaliation against the complainant or against any other party to or participant in this proceeding in violation of General Statutes §46a-60(a)(4).
- Pursuant to General Statutes §46a-86(b), the respondent shall pay to the commission $8,073, which represents the amount of unemployment compensation received by the complainant. The commission shall then transfer said amount to the appropriate state or municipal agency.
So ordered, this 3rd day of October, 2000.
David S. Knishkowy
Human Rights Referee
c: J. Chilly
1Exhibits submitted by the commission bear the prefix "CHRO." The respondent’s exhibits bear the prefix "R."
2My April 14, 2000 ruling contains an error that is hereby corrected. In the second paragraph, the word "Similarly" should be followed by a comma and the words "cases interpreting Connecticut law have recognized a cause of action for being regarded as disabled." These words were inadvertently omitted.
3The documents referred to in paragraphs 2 through 5 were not offered as exhibits. Nevertheless, they are part of the file maintained in the Office of Public Hearings and are part of the record of this case. See General Statutes §4-177(d).
4On this record, I can, at most, infer that Rose and the foremen could readily tell which tools were made by the complainant if the complainant’s tools, when completed, were sent directly to a particular pending job. However, if the foremen obtained the tools from the storage area, there would be no way of identifying which toolmaker made that particular tool. See Tr. 16, 68, 201.
5The parties differ significantly on their explanation for this. The complainant was aware of the advertisement, but claimed that both Salsman and Rose told him it was for additional help on the first shift. (Tr. 28, 58, 80-81, 141) Salsman asserted that his intention was to find a replacement for the complainant. (Tr. 141, 250-51) Rose believed that Salsman was seeking a replacement not because of the complainant’s performance, but because the complainant was looking for another job. (Ex. R-1)
6According to Salsman’s affidavit, "I didn’t write him up because the problem was not a deliberate type of thing. I have given verbal [and] written warnings and days off for things such as safety violations, horseplay, once for someone sleeping on the job, fighting and tardiness, but have never written anyone up for breaking tools or not grinding them properly." (Ex. R-2) This assertion is clearly inconsistent with Findings of Fact 25-27, which reveal that Salsman did, in fact, discipline employees for substandard work.
7The complainant claimed that he told Salsman that he was suffering from Bell’s palsy. (Tr. 70, 92). Salsman denied hearing any mention of Bell’s palsy. (Tr. 253-54)
8Salsman denied noticing anything different about the complainant’s appearance. (Tr. 192) As discussed in greater detail below, I find his assertion to lack credibility.
9Salsman claimed that the termination notice had actually been prepared prior to the complainant’s return. (Tr. 252-53)
10Acosta’s personnel file shows that he was absent from work for several days in 1995 due to a peritonsil abscess and subsequent tonsillectomy, and for several days in 1996 due to kidney stones. The file reveals no other medical absences and contains no mention of Acosta’s bout with Bell’s palsy. (Ex. CHRO-42)
1Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.
12The Rehabilitation Act forbids discrimination "by reason of handicap." Judicial interpretation of the Rehabilitation Act (including the meaning of "handicapped" or perceived as such) is applicable to cases under the ADA, and vice versa. Francis v. City of Meriden, supra, 129 F.3d 285 n.4.
13Although Salsman alleged that he noticed nothing unusual about the complainant’s speech or physical appearance (Tr. 192), the credible descriptions from both Dr. Byrne and the complainant himself render Salsman’s contention implausible. This, in turn, casts doubt on the credibility of Salsman’s other testimony.
14After reciting the complainant’s impairments, the commission simply says, "Additionally, the respondent regarded the complainant as having such an impairment." (Post-hearing brief, p. 13) The commission identifies no factual support for this statement. Later in its brief (p. 15), the commission reiterates the litany of impairments, but again offers nothing more than the bald assertion that "[a]dditionally, the complainant contends that the respondent regarded him as disabled."
15Essential 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).
5 Walnut Lane
Northford, CT 06472
Represented by Self
Commission on Human Rights and Opportunities
21 Grand Street
Hartford, CT 06106
Represented by Cheryl Sharp, Esq., Assistant Commission Counsel II
Milford Automatics, Inc.
1553 Boston Post Road
Milford, CT 06460
Represented by Robert J. Uskevich, Esq.
One Pomperaug Office Park
Southbury, CT 06488