8840227, Carter v. C. N. Flagg Power, Final Decision

CHRO 8840227

Commission on Human Rights and Opportunities ex. rel Joseph Carter, Complainant : 
v.
C.N. Flagg Power, Inc. : February 28, 2000

FINAL DECISION

On December 31, 1987, Joseph Carter ("complainant") filed a complaint with the Commission on Human Rights and Opportunities ("commission"). The complainant alleged that C.N. Flagg Power, Inc. ("respondent" or "Flagg") illegally discriminated against him in violation of the Connecticut Fair Employment Practices Act ("FEPA" or "CFEPA"), specifically, General Statutes §§ 46a-60(a)(1) and 46a-58(a). He alleged that the respondent terminated him from employment on the basis of his physical disability (leukemia).

On September 27, 1990, the complainant executed an amended complaint to include Northeast Utilities as a respondent. The complainant alleged that Flagg and Northeast Utilities illegally discriminated against him in violation of General Statutes §§ 46a-60(a)(1) and 46a-60(a)(5). He alleged that they aided and abetted each other to cause his discharge from Flagg on the basis of his physical disability (leukemia). Subsequently, Northeast Utilities was dismissed as a respondent.

For the reasons stated herein, the complainant has proven by a preponderance of the evidence that the respondent illegally discriminated against him in violation of §§ 46a-60(a)(1) and 46a-60(a)(5). Damages are awarded in the amount of $14,094.36, together with additional relief as set forth herein.

On December 31, 1987, the complaint was filed with the commission and assigned to an investigator. The complainant executed an amended complaint on September 27, 1990 to add Northeast Utilities as a respondent and to include a violation of General Statutes § 46a-60(a)(5). The investigator found reasonable cause to believe that a discriminatory employment practice was committed as alleged in the complaint. On October 21, 1991, he certified the complaint and the results of his investigation to the chairperson of the commission and the Attorney General.

Upon certification of the complaint, Herbert Scott was appointed as the presiding officer to hear the complaint. By motion dated April 8, 1993, Northeast Utilities moved to dismiss the complaint against it on the ground that the amended complaint had not been filed within the 180 day statute of limitations as required under General Statutes § 46a-82e. By motion dated May 4, 1993, Flagg moved to dismiss the complaint on the basis that the commission no longer had jurisdiction. Hearing Officer Scott held public hearings on the motions to dismiss and the merits of the complaint and on May 10, 1993; May 24, 1993; June 7, 1993; June 28, 1993; June 29, 1993; July 13, 1993; August 23, 1993; August 25, 1993; August 30, 1993; September 23, 1993; and November 8, 1993.

On August 22, 1996, Ruben Acosta was appointed as successor presiding officer to Hearing Officer Scott. On September 16, 1996, Hearing Officer Acosta held a status conference on the record. Hearing Officer Acosta held a public hearing on October 29, 1996, at which time the complainant rested and Flagg filed a motion to dismiss on the basis that the complainant had failed to establish his prima facie case. On December 26, 1996, Hearing Officer Acosta denied Flagg’s motion to dismiss dated May 4, 1993. On October 1, 1997, Hearing Officer Acosta granted Northeast Utilities’ motion to dismiss dated April 8, 1993. On May 5, 1999, Hearing Officer Acosta denied Flagg’s motion to dismiss dated October 29, 1996.

Pursuant to General Statutes § 46a-57(e), the undersigned Human Rights Referee was appointed on September 29, 1999 as presiding officer in substitution of Hearing Officer Acosta. A public hearing was held on October 13, 1999 at which the undersigned presided. At that public hearing, the respondent rested. At the request of the parties, dates were scheduled for the filing of briefs and rebuttal briefs. Briefs were filed on January 14, 2000 and reply briefs on February 4, 2000, at which time the record was closed.

The complainant died on January 4, 2000.

The complainant is Joseph R. Carter, of Route 1, Winthrope, Maine. The Commission on Human Rights and Opportunities is located at 21 Grand Street, Hartford, Connecticut. The respondent is C.N. Flagg Power, Inc. At the time of the complaint, the respondent’s address was 450 Murdock Avenue, Meriden, Connecticut.

The complainant and the commission allege that the complainant was terminated by the respondent because of his disability, leukemia, a cancer of the bone marrow, and that the respondent made no effort to reasonably accommodate him. They also allege that the respondent and Northeast Utilities aided and abetted each other to cause the complainant’s discharge.

The respondent claims, by way of defense, that once Northeast Utilities unilaterally withdrew the complainant’s dosimeter, a radiation detection device, the complainant could no longer work in radiation areas and, therefore, was disqualified from continuing to work for the respondent.

Based upon a review of the pleadings, exhibits, testimony, and transcript, the following facts relevant to this decision are found:

The complainant alleges that the respondent terminated his employment because of his physical disability in violation of General Statutes § 46a-60(a)(1).

A physically disabled person is "any individual who has any chronic physical handicap, infirmity or impairment, whether congenital, or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device". General Statues § 46a-51(15).

General Statutes § 46a-60 (a) provides in part that "[i]t shall be a discriminatory practice in violation of this section: (1) [f]or 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 race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including but not limited to, blindness".

2. Applicable Case Law

The commission argues that the correct legal standard of proof is the direct evidence rule as set forth in Connecticut Institute for the Blind v. Connecticut Commission on Human Rights and Opportunities, 176 Conn. 88 (1978). The respondent argues that the correct legal standard is the inferential, burden shifting standard as set forth in Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209 (1996).

"[W]here the complainant introduces direct evidence of prohibited discrimination, the burden shifts to the respondent to prove by a preponderance of the evidence that a legitimate, non-discriminatory reason existed at the time of the disputed action and that that reason was the actual motivating cause." Commission on Human Rights and Opportunities v. The Metropolitan District Commission, 1995 WL 462375, *2 (Conn. Super., July 30, 1995) citing Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 205-207 (1991).

"Where a job qualification directly disqualifies an individual on a basis that is prohibited under FEPA, such disqualification must be justified by a bona fide occupational qualification ("BFOQ") in order to be lawful. Conn. Institute for the Blind v. Comm. On Human Rights and Opportunities, 176 Conn. 88, 94 (1978); Evening Sentinel v. National Organization for Women, 168 Conn. 26, 38 (1975)." Commission on Human Rights and Opportunities, ex. rel., Nathan C. Page, Jr., v. General Dynamics Corporation, Electric Boat Division, CHRO # 8540406, and Commission on Human Rights and Opportunities, ex. rel., Kenneth Poirier v. General Dynamics Corporation, Electric Boat Division, CHRO # 8240058, pp. 32-33 (March 1, 1991)(consolidated cases).

A bona fide occupational qualification "exists only if no member of the class excluded is physically capable of performing the tasks required by the job." Evening Sentinel v. National Organization for Women, 168 Conn. 26, 36 (1975). This is a "stringent and narrow test". Id., 38. "Blanket exclusions, no matter how well motivated, fly in the face of the command to individuate that is central to fair employment practices." Connecticut Institute for the Blind v. Connecticut Commission on Human Rights and Opportunities, 176 Conn. 88, 96 (1978). "[D]isqualifications are valid if, despite their admittedly adverse impact, they bear a significant relationship to successful job performance." Id., 93. A respondent’s burden of proving the existence of a bona fide occupational qualification "is a heavy one, since it is clear that the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination …." (Citations and internal quotation marks omitted.) Judith Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 56 (1982).

"A discriminating qualification that is not based on a current physical incapacity to perform a job, but rather is grounded on a concern about a risk of future injury to the employee or others, may be an adequate defense to a discrimination claim. If it is reasonably probable that the employee, as a result of his or her physical disability, will be substantially injured or will cause a substantial injury to others, a disqualification based upon a future risk of injury is lawful. …. This defense is known as the safety defense and the employer bears the burden of proving the safety defense." (Internal citations omitted.) Page and Poirier, supra, CHRO #8540406 and 8240058, pp. 36-37.

"In determining whether there is a reasonable probability of substantial injury the factors to be considered are (i) the likelihood that the employee will suffer a symptom of his or her physical disability, e.g. a seizure, (ii) the likelihood that such symptom will cause any injury (iii) the seriousness of the possible injury and (iv) the imminence of such injury. …. At least one court has held that the safety defense, by its nature, requires an individualized assessment of an employee’s ability to perform a job and that a policy which prohibits an employee from working based on a future risk of injury caused by such disability is per se unlawful." (Internal citations omitted.) Page and Poirier, supra, CHRO # 8540406 and 8240058, p. 37-38; CHRO ex rel. David Pribyson vs. City of Hartford Fire Department, CHRO # 8710346 (May 20, 1984). "But a possibility is not enough to deny the complainant the position … without a reasonable probability of substantial harm." (Citations omitted.) Pribyson, supra, CHRO # 8710346, p. 31.

Often, a complainant cannot prove directly the reason that motivates an employer’s decision. In such a case, the complainant "may establish a prima facie case of discrimination through inference". (Citations and internal quotation marks omitted.) Ann Howard’s Apricots Restaurant, Inc., supra, 237 Conn. 224. Once the complainant establishes a prima facie case, "the burden of production shifts to the respondent to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason" for its action. Id., 225. Once the respondent offers its legitimate, nondiscriminatory reason, the complainant has "an opportunity to prove by a preponderance of the evidence that the reason is pretextual." Id., 226.

"Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts that are sufficient to remove the most likely bona fide reasons for an employment action…." (Internal citations and quotation marks omitted.) Donald Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 107 (1996). "The plaintiff’s burden of establishing a prima facie case is not onerous under this model." Ann Howard’s Apricots Restaurant, supra, 237 Conn. 225. The plaintiff need prove only four elements by a preponderance of the evidence: "(1) he was physically disabled; (2) he was qualified for his former position …; (3) he was discharged from that position; and (4) his former position was available when he was discharged." Id., 227. "Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created." Id., 225.

Cancer is a physical disability under § 46a-60(a)(1). Commission on Human Rights and Opportunities, ex rel. Dorothy Damiano, Docket Nos. 292263 and 292265, Judicial District of Danbury at Danbury (August 15, 1989).

Despite having a disability, a complainant may still be qualified for his former position if the employer provides a reasonable accommodation. An employer’s duty under Connecticut law to provide a reasonable accommodation has been recognized by Connecticut courts and by the commission’s human rights referees and hearing officers. Ezikovich v. Commission on Human Rights and Opportunities, 1998 WL 258182 (Conn. Super., May 11, 1998); Kalanquin v. Commission on Human Rights and Opportunities, 1998 WL 57767 (Conn. Super., February 3, 1998); Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rprt. No. 19, 599 (February 28, 1994)(Superior Court, Judicial District of Hartford/New Britain at Hartford, CV 92-520590, January 27, 1994); Commission on Human Rights and Opportunities ex rel., James Duarte v. Hamilton Standard Division, CHRO # 9610553, p. 6-8 (September 30, 1999)(Ruling on Respondent’s Motion to Dismiss); Commission on Human Rights and Opportunities ex rel., Sharyn L. Grant v. Yale-New Haven Hospital, CHRO # 9530477, p. 25-27 (October 13, 1999); Joseph D. LaRoche v. United Technologies, FEP-PD-60-1 (August 28, 1978); CHRO ex rel. David Pribyson v. City of Hartford Fire Department, CHRO # 8710346 (May 20, 1994); and CHRO ex rel. Samuel Tucker v. General Dynamics, Electric Boat Division, CHRO # 8640252 (November 1993).

"Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff’s rejection." Ann Howard’s Apricots Restaurant Inc., supra, 237 Conn. 225. "The defendant need not persuade the court that it was actually motivated by the proffered reasons. …. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." (Internal citations and quotation marks omitted.) Id., 226. However, the proffered explanation "must be clear and fairly specific." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981); Lloyd v. WABC-TV, 879 F. Sup. 394, 402 (1995); Commission on Human Rights and Opportunities, ex rel., Martin Maier v. City of Norwalk, CHRO # 9320026 p. 12 (September 29, 1999).

If the respondent carries this burden of production, the presumption raised by the prima facie case is rebutted. The complainant, because he retains the burden of persuasion, must have the opportunity to demonstrate by a preponderance of the evidence that the proffered reason was not the true reason for the employment decision but a pretext for impermissible discrimination. Ann Howard’s Apricots Restaurant, Inc, supra, 237 Conn. 226-227. The complainant "may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence." Burdine, supra, 450 U.S. 256. "From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons." Ann Howard’s Apricots Restaurant, Inc., supra, 237 Conn. 224-225.

The complainant has proven a discriminatory employment practice by a preponderance of the evidence under both standards.

The complainant has established overt discrimination by direct evidence as even the respondent’s vice-president concedes that the complainant’s dosimeter was withdrawn because of his cancer under blanket regulations that disqualified persons with a history of cancer (FF 36). Following the loss of the dosimeter, the respondent discharged the complainant (FF 37). The discharge was not mandated by NNEC/NU (FF 39) and there was work available outside radiological areas that did not require a dosimeter (FF 34). The causal connection between the complainant’s cancer and subsequent discharge is direct and unarguable.

Once the complainant demonstrates direct evidence of overt discrimination, the respondent must establish a bona fide occupational qualification (BFOQ) for the exclusion. The respondent has provided no evidence that being cancer-free is a BFOQ for obtaining a dosimeter or for working at Millstone in non-radiological areas. The respondent offered no evidence that every member of the class of people with cancer would be unable to perform work either in a radiological area with a dosimeter or in a non-radiological area without one. The respondent failed to individuate the complainant’s condition by contacting the complainant’s treating physician (FF 48) or conducting an individual assessment of his condition through its own medical examination. The respondent offered no evidence that the complainant was incapable of physically performing his job. Indeed, the only medical evidence proffered was that of the complainant’s treating physician who determined that the complainant was well enough to work (FF 20, 21, 23, 24, 43, 44, 45, 46).

Even if the respondent is able to demonstrate a BFOQ, it nevertheless failed to provide a reasonable accommodation to the complainant. The respondent failed to appeal the revocation of the dosimeter either to NNEC/NU under its Millstone Administrative Policy or to the NRC under 10 C.F.R. Part 26, § 26.6 (FF 38). The respondent also failed to permit the complainant to work in non-radiological areas despite the fact there was always work outside the radiation areas (FF 49).

The respondent argues that its employees must have a dosimeter to enter radiological areas in order to respond to emergencies, to avoid delay in the completion of the project, and to avoid the risk to other employees of increased exposure to radiation to compensate for those employees who could not enter radiological areas (Clark, Tr. 1144, 1176-1178).

This is essentially a safety defense. It is the employer’s burden of proving the safety defense and, in assessing the reasonable probability of substantial injury, the respondent has failed to meet its burden that the complainant’s cancer threatened the safety of the complainant or other employees. The complainant did not suffer any adverse effects from his medication (FF 23 and 24). Although the complainant did suffer from hematomas, there is no evidence of the extent of the hematomas, their frequency, likelihood, seriousness, imminence or that they were life threatening to the complainant or to other employees.

Even assuming, as the respondent claims, that the issue is not the complainant’s cancer but the withdrawal of his dosimeter, the respondent has still failed to adequately demonstrate the reasonable probability of substantial harm to its other employees by the complainant’s loss of the dosimeter. The respondent failed to offer testimony or statistics on the frequency of emergencies requiring its employees to enter radiological areas. The respondent proffered no testimony or statistics on the extent of any delay to its completion of the project. Nor did the respondent offer testimony or statistics on the extent to which other employees would suffer increased radiation exposure resulting from the complainant’s inability to enter radiological areas. The mere undocumented possibility of these concerns is insufficient to deny the complainant the opportunity to work in non-radiological areas without a dosimeter absent documentation of the reasonable probability of harm either to himself or other employees.

The respondent’s argument as to the importance of having a dosimeter is further undermined by the complainant’s prior experiences of working without a dosimeter in the carpentry shop for a week at a time when his dosimeter was being calibrated (FF 29). Clearly, he, as well as other employees whose dosimeters were being calibrated, would be unable to respond to emergencies. Yet, they continued working at Millstone until the calibration was complete and the dosimeters were returned.

The complainant met his prima facie case. First, he was physically disabled within the statutory definitions as a result of the diagnosis of cancer (FF 2). Second, he was qualified for his position as carpenter in radiological areas with a dosimeter and in non-radiological areas without one. He had worked as a carpenter for the respondent since 1983 and had worked at Millstone intermittently at least since 1981 (FF 10 and 11). Third, he was discharged and, finally, his former position remained available (FF 37).

The respondent argues that its legitimate, non-discriminatory business reasons for the discharge are: (1) the complainant became unqualified to perform the essential functions of his job once NNEC/NU withdrew his dosimeter, and (2) the complainant was treated like any other employee who lost his dosimeter. The respondent further argues that the complainant’s treating physician lacked all the necessary information when he issued his return to work note with no restrictions, that the respondent had no permanent light duty work assignments, and that the complainant never demanded the return of the dosimeter.

Even though the respondent’s burden is only one of articulation and not persuasion, the commission and complainant have nonetheless amply demonstrated that these reasons are unworthy of credence. There was no medical reason why the complainant could not work at Millstone in July 1987 (FF 45). There was no medical justification offered for the exclusion of employees with cancer from radiological areas. There was no medical justification offered for the revocation of dosimeters from employees with cancer.

The respondent did not offer any scintilla of support that responding to undocumented emergencies was an essential job function. There was no evidence: that the reason the position exists was to respond to emergencies, that there was a limited number of employees available among whom the performance of the job could be distributed, of the amount of time spent performing to emergencies, or of the consequences of not requiring the complainant to perform the function. See 29 C.F.R. § 1630.2(n). From a showing that the decision to discharge the complainant was not made for legitimate reasons, the undersigned is left with the legally permissible inference that that the decision was made for illegitimate reasons, i.e., impermissible discrimination.

Again, as previously discussed, the respondent’s argument that having a dosimeter is an essential function of the job is contradicted by the fact of the complainant’s prior experiences at Millstone of working without a dosimeter in the carpentry shop for a week at a time when his dosimeter was being calibrated (FF 29). Clearly, he, as well as other employees whose dosimeters were being calibrated, would be unable to respond to emergencies. Yet, they continued working at Millstone until the calibration was complete and the dosimeters were returned.

The respondent’s claim that, by discharging the complainant, it was treating him the same as it would any other employee whose dosimeter was revoked is also without merit. The withdrawal of the dosimeter and discharge of an employee as a result of a prohibited employment practice, that is illegal discrimination based upon physical disability, is not analogous to the revocation of a dosimeter and discharge of an employee for reasons of discipline, absenteeism, or drug and alcohol abuse.

Contrary to the respondent’s claim, the complainant’s treating physician had sufficient information to conclude that the complainant was well enough to work (FF 20, 21, 23, 24, 43, 44, 45, 46). There is no conclusive testimony that the doctor would have altered his opinion with additional information. In any event, the respondent did not contact the doctor at the time to inquire into the basis for his release to work note (FF 48). The respondent had no intention of retaining the complainant regardless of what information the doctor did or did not have and the respondent declined to refer the complainant to a physician of its choice for a fitness for duty evaluation.

Contrary to the respondent’s assertion that no light duty was available, the respondent’s vice-president admitted under questioning by the presiding hearing officer that "there’s always work outside the radiation areas" (Clark, Tr. 1167) (FF 34). This availability of work was confirmed by counsel for NU (FF 34). That the respondent’s vice president later, under examination by the respondent’s attorney, claimed not to have full-time work in non-radiological areas (Clark, Tr. 1172-73) is not as credible as his responses to the impartial hearing officer.

The respondent comments that the complainant never asked for the return of his dosimeter. This is not surprising as the complainant assumed that the dosimeter was being calibrated (FF 29). The complainant had no inkling that the withdrawal of the dosimeter was permanent until he received his "pink slip" from the respondent for failing NNEC/NU’s health physic requirement (Complainant’s Ex. 3) and he did not receive an explanation from NNEC/NU of what this meant (Complainant, Tr. 601-02).

B The respondent’s aiding and abetting a discriminatory employment practice

The complainant alleges that the respondent and Northeast Utilities aided and abetted each other in his discharge from his employment because of his physical disability in violation of General Statutes § 46a-60(a)(5).

General Statutes § 46a-60 (a) provides in part that "[i]t shall be a discriminatory practice in violation of this section: … (5) [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so".

This statute prohibiting any person from aiding and abetting another in a discriminatory practice is "aim[ed] at curbing certain acts which are labeled to be unfair employment practices. … The wording of the statute plainly is aimed at all persons who aid the doing of an unfair employment practice. Thus, although an employer may be exempt from the application of this act, discrimination as defined in § 31-126(a) [now recodified as § 46a-60(a)] constitutes an unfair employment practice, which others, including newspapers, are not allowed to promote." (Emphasis in original.) Evening Sentinel, supra, 168 Conn. 31.

"Specific intent is not an element requisite to a violation of CFEPA." Evening Sentinel, supra, 168 Conn. 33. CFEPA "is designed to prohibit acts, not status." Id., 35. It is part of a policy to eliminate discrimination "in its subtle as well as overt forms. The very act of classifying individuals by means of a criteria irrelevant to the ultimate end sought to be accomplished operates in a discriminatory manner. Such discrimination is destructive to society as a whole in that it eliminates a class of individuals who otherwise could have made vital and fresh contributions." (Citations omitted.) Id., 35.

That one party might simply be acting at the direction of another is irrelevant. "Public policy requires that agents as well as principals be held accountable. When the facts support a discriminatory finding, as the hearing officer found below, then such penalties must adhere to the agents responsible, to deter the repetition of such reprehensible acts by agents." Commission on Human Rights and Opportunities, ex rel. Douglas Peoples v. Estate of Eva Belinsky, 1988 WL 492460 *4 (Conn. Super., November 8, 1988).

The fact that the respondent may itself have actually committed the prohibited practice does not prevent him from also being liable as an aider and abettor. "It would produce an illogical result if the statute [46a-60] were read to impose personal liability on supervisory employees who aid and abet harassment but allow supervisory employees who actually engage in the prohibited acts to escape liability. See Tomka, 66 F. 3d at 1317 (holding that an employee who participates in the conduct giving rise to a discrimination claim may be held personally liable under New York’s virtually identical aiding and abetting section)." Betty Ann Murphy v. Robert Burgess & Norwalk Economic Opportunity Now, Inc., 1997 WL 529610 *6 (D. Conn., July 16, 1997).

"The Connecticut Supreme Court has held that the wording of § 46a-60(a)(5) prohibits any person from aiding and abetting an unfair employment practice, and that the statute does not merely apply to a person who aids an employer’s violation of the statute. See Evening Sentinel, 168 Conn. at 31, 357 A.2d 498. The Evening Sentinel court also rejected the notion that this section of CFEPA was meant to include only persons who assisted a primary perpetrator. Rather, the court held that the person who initiates, encourages, or facilitates a discriminatory practice falls within the ambit of this section. Id. at 32, 357 A.2d 498." Murphy, supra, 1997 WL 529610 *FN5.

The respondent argues that it did not lay off the complainant because he had cancer but as a result of NNEC/NU’s removal of his dosimeter. As even the respondent’s vice president concedes that the complainant lost his dosimeter because of his cancer (FF 36), this is a remarkably specious argument. One supposes that if NNEC/NU had a policy that it would not give dosimeters to women, African-Americans, or Catholics, the respondent would be claiming that it could then discharge these employees as well. No justification has been offered that being cancer-free is a bona fide occupational qualification for work at NNEC/NU or for the respondent. No medical testimony was proffered that the complainant was physically unable to do the work. By not formally appealing NNEC/NU’s decision to NNEC/NU and the NRC (FF 38) and by then summarily discharging the complainant when, as its own vice president and NU’s attorney acknowledged, work was available in non-radiological areas (FF 34), the respondent aided and abetted NNEC/NU in its discriminatory employment practice toward the complainant.

The respondent tries to mask its discriminatory practice by asserting that the nuclear power industry is a unique work environment because it is heavily regulated by the NRC. However, the respondent cites no authority, nor is the undersigned aware of any, wherein the NRC permits or is permitted to discriminate against the physically disabled in general or against cancer patients in particular. Quite to the contrary, the NRC regulations prohibit discrimination against qualified handicapped persons and require reasonable accommodation (10 C.F.R. Pt. 4, §§ 4.122 – 4.123), with the definition of handicapped persons including those with physical impairments due to cancer (Id., § 4.101).

The presiding Human Rights Referee is authorized to award back pay to make whole a complainant who has suffered employment discrimination. Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rprt. No. 19, 599 (February 28, 1994)(Superior Court, Judicial District of Hartford/New Britain at Hartford, CV 92-520590, January 27, 1994); State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989); General Statutes § 46a-86(b).

The commission and the complainant seek $93,341.36 in lost wages representing employment totaling 51 weeks during the period from July 7, 1987, when the complainant was terminated, to September 1, 1992, when the complainant was rehired by the respondent but then voluntarily left that employment.

This theory has at least three flaws. First, as the complainant reported in his application for disability benefits to the Social Security Administration, he had obtained full-time employment on August 25, 1987 (FF 55). The period during which the respondent is liable for back pay ends when the complainant obtains a comparable or higher paying job. (Citations omitted.) Commission on Human Rights and Opportunities ex. rel. Isabel Gomez v. United Security, Inc., CHRO # 9930490, p. 5 of 7 (January 28, 2000).

Second, the commission assumes (Brief, Appendix B) that the complainant could have worked for the respondent from 3.5 to 28 weeks per year, averaging 14 weeks per year. However, according to the respondent’s records, this assumption is nearly twice the yearly average of the complainant’s work history with the respondent from 1983 to 1987 (FF 11). The commission further assumes that even if the respondent had that much work available, the complainant would have been healthy enough at the time the work was available to be employed by the respondent. However, this is insufficient, indeed contradictory, evidence supporting that position (FF 51, 52, 54, 55, 56, 58). Post-August 1987 damages are simply too speculative to award.

Third, the commission’s assumptions ignore the factual statements in the complainant’s documentation to the Social Security Administration (SSA) for disability benefits. As the U.S. Supreme Court has noted, a complainant can pursue both a disability claim under the Americans with Disabilities Act and also a social security disability claim as "the two claims do not inherently conflict to the point where the courts should apply a special negative presumption…. The result is that an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without it." Cleveland v. Policy Management Systems Corporation, 526 U.S. 795, 119 S.Ct 1597, 1602 (1999). However, "an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation." Id., 1603.

Likewise, the United States Court of Appeals, Second Circuit, has noted that a party may be judicially estopped from asserting "a factual position in a legal proceeding that is contrary to a position taken by that party in a prior proceeding." (Internal quotation marks and citation omitted.) Lawrence A. Mitchell, Jr. v. Washingtonville Central High School District, 190 F.3d 1, *6 (2^nd Cir., 1999). Prior inconsistent statements, "such as to the Social Security Administration in applying for disability benefits, may also give rise to judicial estoppel." Id. Judicial estoppel arises when one party took an inconsistent position in a prior proceeding and the first tribunal in some manner adopted that position. Id.

The U.S. Supreme and Appellate Courts’ rulings on the relationship between the ADA and social security are not dispositive on the relationship between General Statutes § 46a-60 and social security. However, the courts make a compelling argument that, even in state actions, factual inconsistencies between a disability discrimination complaint and a social security disability application must be explained. Here, the complainant has offered no credible explanation reconciling his testimony that he was willing, ready, and able to work a 40-hour week from July 1987 to September 1992 with his written factual statements that he was terminated from employment because he could not work 40 hours per week, experienced weakness fatigue, went to bed early, and did not get up on Saturdays because of his condition (FF 55, 56). The Social Security Administration apparently adopted the complainant’s position as it awarded him disability benefits (FF 57).

A more realistic award of damages is from July 6, 1987 to August 25, 1987, when the complainant obtained employment. August was also the time by which most of the other carpenters hired with the complainant had been laid off due to lack of work (FF 6).

Prior to his lay off, the complainant had been working 84 hours per week. His rate of pay was $14.94 per hour straight time for 40 hours, time and a half per hour for the next 32 hours, and double time per hour for the next 12 hours, totaling $1,673.28 per week. The benefits paid on his behalf would have totaled $147.00 per week to the carpenter’s health fund, $84.00 per week to the pension fund, and $109.20 to the supplemental pension fund (FF 61).

A total award of $14,094.36 represents an 84-hour workweek for the seven weeks between July 6 – August 25, 1987, consisting of $11,712.96 in wages; $1029.00 in benefits to the carpenter’s health fund; $588.00 to the pension fund; and $764.40 to the supplemental pension fund.

The complainant has established by a preponderance of the evidence that the respondent illegally discriminated against him by terminating his employment because of his physical disability in violation of General Statutes § 46a-60(a)(1).

The complainant has established by a preponderance of the evidence that the respondent also illegally discriminated against him by aiding and abetting Northeast Nuclear Energy Corporation/Northeast Utilities in the termination of the complainant and the removal of his dosimeter in violation of General Statutes § 46a-60(a)(5).

The respondent shall pay to the commission the sum of $14,094.36 as back pay and benefits due the complainant from July 6, 1987 to August 25, 1987. The commission shall reimburse the Employment Security Division for the actual unemployment compensation benefits received by the complainant from July 6, 1987 to August 25, 1987. The commission shall pay $1029.00 to the appropriate carpenter’s health fund, $588.00 to the appropriate pension fund, and $764.40 to the appropriate supplemental pension fund. The commission shall pay the balance to the complainant’s estate.

Post-judgment interest at the rate of ten percent is awarded from the date of this decision.

The respondent shall cease and desist from all acts of discrimination prohibited under federal or state law.

The respondent shall post in prominent and accessible locations at its work sites such notices regarding statutory provisions as the commission shall provide.

The respondent shall cease and desist from discharging any employee on the basis of his or her medical condition except to the extent that such medical condition prevents the employee from meeting a bona fide occupational qualification. However, a medical condition that can be reasonably accommodated so as to enable the employee to meet the bona fide occupational qualification shall not be deemed an exception.

The respondent shall disclose to the commission in writing all medical criteria it presently utilizes in evaluating persons for employment or in continuing their employment and shall disclose in writing to the commission any alterations to those criteria for a period of two years commencing on the date hereof.

____________________________

Hon. Jon P. FitzGerald, Presiding Human Rights Referee

C:  Estate of Joseph R. Carter c/o Ms. Barbara Mangin
C.N. Flagg Power, Inc.
Atty. Paul S. Tagatac
Atty. Gary S. Starr
Atty. Raymond P. Pech