9610577, Scarfo v. Hamilton Sundstrand, Final Decision

CHRO No. 9610577

Commission on Human Rights and Opportunities, ex rel.  Dominic C. Scarfo, Complainant
v.
Hamilton Sundstrand Corporation, Respondent

September 27, 2000

Final Decision

    This matter originates from the filing of an Affidavit of Illegal Discriminatory Practice (hereinafter, the "Complaint") on April 1, 1996, by the Complainant, Dominic C. Scarfo (hereinafter, the "Complainant"), against his former employer, the Respondent, Hamilton Standard Division, United Technologies Corporation (hereinafter, the "Respondent"). The Respondent’s name has since changed to Hamilton Sundstrand Corporation, due to a merger.¹ The Complainant alleges that he was illegally discriminated against when the Respondent rescinded their recall of him to employment because the Respondent perceived him to be disabled. He claims the Respondent violated the Americans with Disabilities Act as well as Connecticut General Statutes §§ 46a-58(a) and 46a-60(a)(1). For the reasons set forth below, it is here determined that the Complainant has failed to establish a prima facie case under federal or state law. Therefore, judgment is entered for the Respondent and the Complaint is hereby dismissed.

    The Complainant is Dominic C. Scarfo. His address is 108 Gatewood Drive, Enfield, Connecticut 06082. The Complainant appeared pro se at the Public Hearing and did not have counsel. The Connecticut Commission on Human Rights and Opportunities (hereinafter, the "Commission") is located at 21 Grand Street, Hartford, Connecticut 06106. The Commission was represented at the Public Hearing by David L. Kent, Assistant Commission Counsel II, 21 Grand Street, 4^th floor, Hartford, Connecticut 06106. The Respondent is Hamilton Sundstrand Corporation, with an address of One Hamilton Road, Windsor Locks, Connecticut 06096. The Respondent was represented at the Public Hearing by Jeffrey H. Odell, Esq., Manager, Human Resources, Hamilton Sundstrand Corporation, One Hamilton Road, M/S 1-1-BC50, Windsor Locks, Connecticut 06096-1010; and Henry A. Platt, Esq.,² Schmeltzer, Aptaker & Shepard, P.C., 2600 Virginia Avenue, N.W., Suite 1000, Washington, D.C. 20037-1905.

    The Complainant filed the Complaint with the Commission on April 1, 1996. After conducting an investigation, the Complaint and the results of the investigation were certified by the investigator on July 10, 1997. On July 22, 1997, the Honorable John F. Daly, III was appointed as the hearing officer to preside over the processing of the Complaint. On November 19, 1997, the Honorable Ruben Acosta was appointed as the hearing officer in substitution of the Honorable John F. Daly, III. The Respondent filed a Motion to Dismiss the Complaint on May 29, 1998, which was denied by the Honorable Ruben Acosta almost one year later, on May 19, 1999. Pursuant to Public Act 98-245, the matter was reassigned to the undersigned Human Rights Referee on May 24, 1999. The Public Hearing was scheduled for April 4-7, 2000, by Status Conference Summary and Order dated June 18, 1999. The Public Hearing was held over three days, on April 4-6, 2000. (Transcript 1-659) On June 12, 2000 the Complainant, Commission and Respondent all filed their post-hearing briefs. On July 3, 2000, both the Commission and the Respondent filed reply briefs.³ Therefore, the record was closed on July 3, 2000.

    These findings of fact are derived from the Complaint, the pleadings, the testimony of witnesses at the Public Hearing and the exhibits admitted into evidence. Only those facts deemed necessary to an understanding of the issues raised at the public hearing and discussed in this decision are set forth herein.

1. All procedural and jurisdictional prerequisites to a public hearing have been met.
2. The Complainant first began employment with the Respondent in the early 1960’s as a traffic coordinator in the purchasing department. He voluntarily left employment with the Respondent approximately five years later. (Transcript⁴ 56)
3. The Complainant had lumbar disk surgery in 1962 which resulted in the Respondent’s medical department assigning him a 50-pound weight restriction. (Tr 77, 190; Exh. C-29, p.45) Each time he returned to work for the Respondent he was required to sign a Certificate of Acknowledgement of Physical Defect. (Tr 77; Exh. C-29, p.45)
4. The Complainant returned to work for the Respondent on February 27, 1985 as a blade worker, which is a labor grade 8. (Tr 56-57; Exh. C-23⁵, C-34⁶)
5. The day before, on February 26, 1985, the Complainant signed a Medical Placement Record, which set forth that he was physically qualified to work as a blade worker, but with the following restrictions: (1) corrective lenses were required; (2) hearing protections was required in certain areas; and (3) no lifting over 50 pounds. (Exh. R-12⁷) The document was signed by Tony Moreau, a general foreman. (Tr 292; Exh. R-12) The Complainant never saw this document at that time, or spoke to anyone in the company. (Tr 292) He was aware of the 50-pound weight restriction because he also had to sign a waiver. (Tr 293)
6. His job responsibilities involved sandblasting one end of the blade, where there is a hole, known as a bore. (Tr 57-58) A separate machine actually made the bore and the sandblasting would clean and harden the inside diameter of the surface. (Tr 59)
7. The blades he worked on at this time were much larger and heavier than commuter blades (which were the subject of the recall).
8. The Complainant was able to fulfill all of his job duties within the Respondent’s job description for a blade worker, except he was not required to do any painting or riveting. (Tr 60; Exh. C-23)
9. After about 3 weeks working as a blade worker, the Complainant became an abrasive equipment operator on March 18, 1985 (Tr 72-73, 172; Exh. C-26; C-34)
10. After approximately 2 months, on May 13, 1985, the Complainant transferred to an open position as an engine lathe operator which is a higher labor grade, 7. (Tr 61, 172-73; Exh. C-27, C-34) This position entailed operating an engine lathe and working with commuter blades, E2C2 blades and aluminum blades. (Tr 61-62, 173)
11. E2C2 blades are a lighter blade about 7 feet in length. (Tr 62)
12. The Complainant was able to fulfill all of his job duties within the job description for an engine lathe operator. (Tr 64-65; Exh. C-27) He worked in this position for many years, until the Respondent ran out of work for that position and phased out the E2C2 blades. (Tr 65)
13. On October 10, 1988, the Complainant signed a release form, allowing the Respondent to release a copy of his medical records to his union, in connection with a grievance he was filing. (Tr 293; Exh. R-23)
14. The Complainant had double bypass surgery in 1989, which was fully successful. (Tr 199; Exh. R-22)
15. When the Complainant returned to work from his leave due to coronary bypass surgery, he returned with a letter dated March 14, 1990, from his cardiologist, Steven M. Horowitz, M.D., F.A.C.C., as was required by the Respondent, which stated that the Complainant "would benefit from a job with activities of a lighter nature, such as inspecting materials, etc." (Tr 98, 199; Exh C-31⁸) It was the Complainant’s understanding that this was a temporary restriction until he had healed from the surgery. (Tr 98, 200-01)
16. The Complainant discussed the letter with his foreman upon his return and his foreman told him he could "take the job or leave it." The Complainant told him that he would be able to work around it. (Tr 99)
17. The Complainant also had Dr. Horowitz complete a form for the Respondent which stated that the Complainant had a "Good stress test result," that his prognosis was "Good" and left blank the portion of the form stating "What limitations prevent patient from returning to work?" (Exh. C-29, p.27)
18. Based solely on Dr. Horowitz’ March 14, 1990 letter, the Respondent’s medical director, Dr. Walter J. Wiechetek, completed a Medical Placement Record dated March 27, 1990 which added the restriction of no lifting above the waist. (Tr 426, 446; Exh. R-14) He also reduced the weight restriction from 50 pounds to 45-50 pounds. (Exh. R-14) These changes are typically communicated to the Complainant through either a "return to work pass" or would be discussed with him by the Respondent’s medical professional that returned him to work. (Tr 427)
19. Dr. Wiechetek interpreted Dr. Horowitz’ March 14, 1990 letter as imposing a permanent restriction on the Complainant because it has no time limitation. (Tr 429; Exh. R-16)
20. Later, on April 24, 1991, The Complainant signed another release form, allowing the Respondent to release "any medical information" to himself. Specifically, he requested a copy of the March 14, 1990 letter from Dr. Horowitz (Tr 294; Exh. R-24, R-36)
21. After about 6 years, the Complainant subsequently became a blade worker on May 20, 1991, which is a labor grade 8. (Tr 66, 173-74; Exh. C-34) He worked with commuter and aluminum blades. (Tr 66)
22. The Complainant was laid off due to the elimination of his position in February of 1993. (Tr 57) He was 58 years old.⁹ (Tr 152)
23. On May 26, 1995, Dr. Wiechetek, Robert Carlson, the Environmental Health and Safety representative, and the supervisor, Dave DeSantis together did an on-site inspection of the Composite Technician III position to determine what pre-screening tests should be applied to the recalled workers in the pre-placement assessment examinations. (Tr 395; Exh. R-10) Dr. Wiechetek made a note that the position called for lifting greater than 30 pounds. (Tr 402; Exh. R-10)
24. Around September of 1995, the Complainant was called by Jim Goodman to come in to discuss a new position that was open, Composite Technician III for the second shift. (Tr 82) The Complainant was 61 years old at this time. (Tr 152)
25. There were no other positions open at this time, other than the Composite Technician III. (Tr 508) This position was actually created from 29 different positions amalgamated into one, including the blade worker position that was held by the Complainant upon his layoff in 1993. (Tr 482-83, 591)
26. The Composite Technician III job description categorized the physical demand required as Degree 3, which requires lifting of weight up to 40 pounds and occasional lifting of weight over 40 pounds. (Exh. C-4; R-38 at 15, 17-18)
27. The Complainant would need to be trained to perform some of the functions of this position. (Tr 510) Cross training was provided by the Respondent based on the employee’s seniority. (Tr 583-84, 610)
28. The Complainant met with Mr. Goodman 1-2 days later. (Tr 83) They discussed the shift, the pay rate, whether one of his friends was also being recalled, and the Complainant asked if the fact that he was receiving his pension caused a problem. (Tr 84)
29. Mr. Goodman told the Complainant that the position called for a lot of overtime, about 60-70 hours would be available in total. (Tr 128, 171)
30. On October 4, 1995 the Complainant met with Dorinda Little, a clerk in the human resources department. (Tr 85) Ms. Little discussed the Respondent’s sexual harassment and drug policies, payroll deposit procedures, benefits, and that the Complainant needed to be seen by the medical department. (Tr 86)
31. After his meeting with Ms. Little, a nurse from the medical department gave the Complainant his physical examination and he also was examined by a physical therapist. The only problem identified concerned the Complainant’s vision, because he had not yet received his corrected glasses from the Respondent’s optician and was using an older pair. Once it was confirmed with the Respondent’s optician, the Complainant’s vision was found to be acceptable for the position. (Tr 87)
32. The physical therapist gave the Complainant an exhaustive examination and recommended a weight limitation. (Tr 87-88; Exh. R-20) She also gave him precautionary instructions as to how to properly lift. (Tr 88)
33. The Complainant next met with the Respondent’s medical director, Dr. Walter J. Wiechetek. He was asked if there were any changes in the Complainant’s medical condition and the Complainant said no. He asked if the Complainant was taking medication and the Complainant informed him he took an aspirin per day. (Tr 90)
34. Prior to meeting with the Complainant, Dr. Wiechetek compared the Complainant’s previous medical questionnaire with the new one he completed. (Tr 317) He reviewed his entire medical file after the exam. (Tr 317)
35. Dr. Wiechetek never called Dr. Horowitz after the Complainant’s exam. (Tr 320)
36. Dr. Wiechetek never mentioned any issues or concerns about the Complainant’s lifting abilities to the Complainant. (Tr 90-91) Dr. Wiechetek never mentioned the 1990 letter from the Complainant’s doctor, Dr. Horowitz. (Tr 91) Dr. Wiechetek never mentioned the Complainant’s medical restrictions. (Tr 219)
37. After the examination, Dr. Wiechetek reviewed the Complainant’s medical file, along with the new information that was gathered from the examination, and he determined the Complainant’s restrictions which were dictated to his head nurse, Martha Bither, who fills out the Medical Placement Record which lists the restrictions. (Tr 319, 321-22, 331; Exh. C-28)
38. The only change in the restrictions was that Dr. Wiechetek reduced the previous 45-50-pound weight restriction to 30-40 pounds. (Tr 323; Exh. C-28) This was done because the Complainant was older than the last record, because of his heart condition, the back condition, additional testing he had between 1990-1995 and because of some symptoms which resulted in a myelogram. (Tr 432; Exh. R-36) Dr. Wiechetek did not consult with any of the Complainant’s doctors in reducing this weight restriction. (Tr 457) There was an additional restriction which forbid lifting above the waist which had been a restriction imposed by Dr. Wiechetek upon his return from heart surgery. (Tr 323, 325; Exh. R-14)
39. The Medical Placement Record dated October 5, 1995, listing the Complainant’s revised restrictions was not forwarded to the Complainant or to Dr. Horowitz. (Tr 328)
40. After the examination, the Complainant understood that he solely had to pass the drug test in order to be eligible for the Composite Technician III position. (Tr 92) He next met again with Ms. Little who gave him an information kit which required the Complainant to sign an intellectual property form. (Tr 92-93) He signed up for insurance and received union forms. (Tr 93) He filled out a W-4 form. (Tr 94)
41. Then Jim Goodman came in and said he had not found out any further information on the effect the pension payments would have on the position, so he gave the Complainant a telephone number to call. (Tr 94)
42. Ms. Little told the Complainant to report to security a half-hour earlier on Monday morning, October 9, 1995, so that he could get a security badge. (Tr. 95-96) He was scheduled to work that Monday morning, first shift. (Tr 96)
43. Neither Dr. Wiechetek nor anyone in the medical department informed the Complainant that a decision would still need to be made as to his physical ability to perform the functions of the Composite Technician III position. (Tr 96)
44. Mr. Richard Scorzafava, who was the general foreman for the Composite Technician III position, rejected the Complainant’s restrictions because of the 30-40 pound restriction and because of the no lifting above the waist restriction, because part of the process encompasses lifting over the waist. (Tr 355) He never discussed these restrictions with the Complainant or with Dr. Wiechetek. (Tr 359)
45. The position of Composite Technician III involves a 5-step process composed of: (i) foam; (ii) lay-up; (iii) resin; (iv) balance; and (v) paint. (Tr 486) One person must be able to perform all five of these steps on a blade. (Tr 518) Basically the entire process involves lifting the blade up over one’s head into a press in which foam is injected. A lifting device cannot be used at this stage because it cannot work to place the blade into the press. (Tr 489-90) The military blades used by the Complainant previous to his layoff were held on a lifting device and a hoist at this stage of the process. (Tr 490) The blade then must be lifted over one’s head out of the press, onto a lifting device, and then lifted from the device onto a bench. (Tr 491) The blade is now heavier because it has the foam in it. (Tr 492) Once on the bench, the ports and flashing are cut off. (Tr 492) The blade is then again lifted from the bench, a butt cap is placed on it, it is put onto a carting truck and taken to be x-rayed. (Tr 493)
46. The blade is next lifted from the x-rays, placed back on the carting truck, wheeled back, lifted again onto a spindle in a sanding booth. There is no lifting device at this stage because of the sanding booth walls. (Tr 493-94) After the blade is sanded on the spindle, it must be lifted, placed back on the carting truck, and hauled back to x-ray. (Tr 495)
47. The blade is then lifted back onto the carting truck, and taken to the lay-up room. The blade is then moved to a rack, picked up and put onto a bed where fiberglass cloth is pulled over the foam and a nickel sheath or sleeve is stitched over it. This further increases the weight of the blade. (Tr 496-97)
48. The blade is then lifted again, put onto a carting truck to the resin area, where it is lifted off the carting truck, and the person must lean over to put the blade horizontally into a press. A lifting device cannot be used at this stage, either, because it would not reach into the press. (Tr 497-99) The resin is then injected into the blade, it must be lifted up from the press, put back onto a bench where the flashing must be removed. This resin further increases the weight of the blade. (Tr 500) The blade is then placed on a carting truck and taken to x-ray. (Tr 500)
49. At this stage, 80% of the blades do not pass x-ray, and the blade must be repaired by lifting it onto a horizontal spindle and then sent back to x-ray. (Tr 501)
50. Once the blade passes x-ray, the blade is brought to the machining area where a hole is drilled in the taper-bore, the blade is then lifted off of the machine, back onto the carting truck, lifted onto a bench, and then physically placed into a grit-blasting machine, where a pinhole is made. (Tr 502-03)
51. The blade is next taken out of the machine, put back on the carting truck and wheeled to the paint shop. (Tr 503) The blade is lifted off of the truck, placed on a spindle, sanded, lifted off of the spindle and onto another spindle where it is painted. (Tr 503) The blade is then lifted off of the spindle, placed on the carting truck and wheeled to final bench operations. (503-04)
52. From final bench operations, the blade is taken to the balancing area, lifted onto another spindle, and the blade is balanced by applying lead into the taper-bore. (Tr 504) After the right amount of lead is added, which again increases the blade’s weight, it is taken to final bench operations where a butt-cap, a lock sleeve, and a lock pin are added. (Tr 505) After it is inspected, the blade is taken off of the bench, put onto a horizontal truck and wheeled to the assembly floor for assembly. (Tr 505)
53. The blades that are lifted over the head initially weigh about 35 pounds. (Tr 356) They are lifted over the head in the initial process, which is the foaming process, and also at the end of the process, now filled with the foam, which causes the blade to weigh more. (Tr 363-65)
54. The number of times a blade is lifted over the head during the course of a shift varies from 6-12 times. (Tr 365) Each blade would be lifted over the head for approximately 5 minutes to the press, and then 5 minutes to take it out of the press, and then the blade is lifted again to the bench. (Tr 365, 370) One of the main functions of the Composite Technician III position is operating the press. (Tr 375) If someone else were to come over and assist with the lifting, there would be almost nothing left to the job. (Tr 376)
55. If someone needed assistance lifting blades, it would be a major disruption to the process. (Tr 367)
56. When the Complainant returned home that Friday, October 6, 1995, around 5:15 p.m. there was a message on his answering machine from Jim Goodman that he should not report to work, that he should call Mr. Goodman on Monday for the details. (Tr 104)
57. The Complainant called Mr. Goodman on that Monday, October 9, 1995, about 8:30 a.m. and was told there was a problem with a restriction but he did not know what the restriction was. (Tr 104-05, 221) The Complainant assumed it had something to do with his lumbar disk surgery. (Tr 221) He knew he had a 50-pound weight restriction. (Tr 295, 301) This weight restriction never required any modifications or accommodations in any of his previous job positions. (Tr 295) Mr. Goodman told him he would consider him for any other employment if it came up. (Tr 105)
58. The Complainant called Mr. Goodman again, to ask him what the restriction was, and Mr. Goodman told him he did not know, but it was a pre-existing restriction that prevented the Complainant from performing the job. (Tr 107)
59. The Complainant did not call the Respondent’s medical department to ask the nature of the restriction(s) that prevented his recall.
60. This prompted the Complainant to meet with his union representative and he filed a grievance. (Tr. 107-08) The union suggested he get a letter from Dr. Horowitz explaining his physical ability to do the job of Composite Technician III. (Tr 108-09, 237-38; Exh. R-28)
61. On October 15, 1995, the Complainant signed a release authorizing the Respondent to release all of his medical records to his union. (Tr 294-95; Exh. R-25)
62. Dr. Horowitz wrote a stern letter to the Respondent dated March 4, 1996 intended to clarify his letter dated March 14, 1990, which stated that the restrictions in the prior letter were solely of a temporary nature, and that if the Respondent had any questions it should call him directly. It mentioned that the Complainant had a normal stress test in November of 1995 and that he could "return to all normal activities." (Tr 102; Exh. C-30¹⁰) Dr. Horowitz did not send a copy of this letter to the Complainant. (Tr 102)
63. When the Complainant had his stress test in November of 1995, merely one month after his recall had been cancelled, and while his grievance was pending, he never asked Dr. Horowitz to clarify whether he was able to perform the Composite Technician III job position. (Tr 302)
64. The blade that is the subject of the Composite Technician III position is much lighter than the blades the Complainant worked on in 1993. (Tr 116-17) Just before his layoff in 1993, the Complainant had to physically pick up much heavier blades from the floor and fit them onto a spindle and lock them in place. (Tr 117-18) In 1992 a new device was introduced which did not require manual lifting but was actually a cart which tilted the blade onto the spindle and as a result required very little strength. (Tr 118, 179)
65. Commuter blades are used primarily for commercial purposes as opposed to the military purposes of the blades the Complainant had worked on previously. (Tr 122) The specifications were not as rigid as with military specifications. (Tr 122)
66. Another employee, Jerry Sambrook, had a lifting restriction of "no continuous lifting over 50 lbs without assistance" and was recalled to the Composite Technician III position in September of 1995 and approved by Mr. Scorzafava. (Tr 342-43; Exh. C-10)
67. Also, Donna Scioscio had a lifting restriction of "may need assistance lifting 40-50 lbs on a continuous basis" and was recalled to the Composite Technician III position in September of 1995 and was approved by Mr. Scorzafava. (Tr 345; Exh. C-11)
68. Alan L. Schulz had a lifting restriction of "not to lift over 50 lbs without assistance" and was recalled to the Composite Technician III position in November of 1995 and was approved by Mr. Scorzafava. (Tr 347-48; Exh. C-19)

1. Respondent’s Motion to Dismiss Claim Pursuant to § 46a-58(a)

    The Complainant has alleged that the Respondent’s failure to recall him was based on a perceived disability in violation of General Statutes § 46a-58(a), § 46a-60(a)(1) and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (hereinafter, the "ADA"). In its Post-Hearing Brief, the Respondent asserts that the Connecticut Supreme Court has ruled that § 46a-58(a) does not cover discriminatory employment practices that fall within the scope of General Statutes § 46a-60. Therefore, since the Complainant has alleged a § 46a-60 claim, the § 46a-58(a) claim must be dismissed. The Respondent also cites a prior ruling of mine in which I agreed, and dismissed the § 46a-58(a) claim. See Duarte v. Hamilton Standard Division, United Technologies Corporation, CHRO #9610553, September 30, 1999.

    The Commission responds that while § 46a-58(a) claims cannot cover discriminatory employment practices that fall under § 46a-60, it does cover claims under the laws of the United States, and therefore the Complainant’s federal ADA claims are asserted through § 46a-58(a). Contrary to my prior ruling, I am now compelled to support the Commission’s position, and cannot dismiss the claims alleged pursuant to § 46a-58(a).

    Section 46a-58(a) provides:

Id. In addition, § 46a-60(a)(1) states:

Id. Because these two statutes appear to include most of the same claims, the Connecticut Supreme Court, in the case, Commission on Human Rights and Opportunities v. Truelove and Maclean, Inc., 238 Conn. 337 (1996) interpreted them to be mutually exclusive:

Id., at 346.

    Not too long ago, however, I ruled on a Motion to Dismiss in a case very similar to this one, Duarte v. Hamilton Standard Division, United Technologies Corporation, CHRO #9610553, September 30, 1999. There, the complainant alleged disability discrimination resulting in violations of § 46a-58(a), § 46a-60(a)(1), the ADA, and Title VII. The Respondent similarly moved to dismiss the § 46a-58(a) claim for the same reasons asserted here. I granted that motion and did, in fact, dismiss the § 46a-58(a) claim for several reasons, including: (1) the language within § 46a-58(a) includes "laws of this state" as well as "laws of . . . the United States" therefore if the Connecticut Supreme Court ruled the specifically-tailored state statute was not included then it followed that the specifically-tailored federal statute was not included, Id. at 10; (2) the case, Joo v. Capitol Switch, Inc. 231 Conn. 328 (1994) declined to require exhaustion of administrative remedies in Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA) cases asserting a federal claim within the state court. Therefore, if that federal claim was encompassed within § 46a-58(a), the result would be that claimants would still be required to exhaust their administrative remedies pursuant to § 46a-83, or litigate their state and federal claims separately, Duarte, supra, at 11; and (3) the Supreme Court in Joo had specifically ruled that discriminatory practices as defined by § 46a-51(8), although defined to include § 46a-58(a) claims, does not include ADEA claims. Duarte, supra, at 10-11.

    I still agree with the reasoning in that ruling and was prepared to dismiss the § 46a-58(a) claims based thereon. Particularly in light of the recent District Court case, Thomas v. St. Francis Hospital and Medical Center, 990 F.Supp 81 (D.Conn.1998); aff’d 198 F.3d 235 (2d Cir.1999), in which the Court dismissed the state § 46a-58(a) claim due to the additional claim pursuant to § 46a-60(a)(1), even though a claim was also asserted pursuant to Title VII. Id., at 89. However, the Duarte ruling has been indirectly reversed.

    Well after the issuance of the Duarte ruling the Connecticut superior court issued a decision on a Motion to Strike in Trimachi v. Connecticut Workers Compensation Committee, 2000 WL 872451, (Conn.Super.June 14, 2000)(No. CV 970403037S), 27 Conn.L.Rptr. 469. Trimachi also involved an employment discrimination action in which the plaintiff was alleging the defendant employer failed to reasonably accommodate her thereby violating state law. The court ruled that there is a duty of reasonable accommodation under the state law. Id. at *7-8. It makes this determination by analyzing § 46a-58(a):

Id. at *7. Therefore, this superior court has determined that the federal antidiscrimination laws are, in fact, encompassed by § 46a-58(a). Now my initial reaction was that the Duarte ruling could still stand if § 46a-58(a) did not apply to federal employment antidiscrimination laws. However, Trimachi was an employment discrimination case. And, based on § 46a-58(a) and the Court’s determination that it necessarily includes federal antidiscrimination laws, Judge Devlin ruled that state law, since it is coextensive with federal law, imposes a duty of reasonable accommodation on employers and it denied that portion of the Respondent’s Motion to Strike.

    Based on the above, although § 46a-58(a) cannot encompass the claim asserted pursuant to § 46a-60(a)(1), Trimachi now directs that it does encompass the Complainant’s discriminatory employment practice claims pursuant to the ADA. Therefore, the Respondent’s Motion to Dismiss § 46a-58(a) is denied.¹¹

    The Respondent further argues that the Commission does not have any jurisdiction to adjudicate federal claims, including the Complainant’s claims pursuant to the ADA, and therefore the ADA claim must be dismissed. The Commission responds that this tribunal has jurisdiction over the federal ADA claim pursuant to General Statutes § 46a-58(a), as well as pursuant to a work sharing agreement between the Commission and the Equal Employment Opportunity Commission (EEOC).

    In a review of the act itself, 42 U.S.C. § 12117(a) provides that the enforcement remedies, procedures and provisions set forth within Title VII, 42 U.S.C. § 2000e et seq., specifically 42 U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9, shall all apply to the ADA. Section 2000e-5(c) requires employment discrimination claims to be filed first with the state employment practices agency where the discrimination occurred. In fact, for a period of 60 days, § 2000e-5(c) provides the state agency with exclusive jurisdiction over the processing of a discrimination complaint, which if disability discrimination is alleged, will contain claims under the ADA. Therefore, regardless of whether my ultimate plan is to litigate my ADA claim in state or federal court, the ADA statute, itself, dictates that I first allow the state agency to address the claim for a period of 60 days. As a result, the EEOC has no jurisdiction to even investigate an ADA claim until the 60-day period expires or the state agency "terminates" its proceedings or waives its right to exclusive jurisdiction. 42 U.S.C. § 2000e-5(c); Ford v. Bernard Fineson Development Center, 81 F.3d 304, 311 (2d Cir.1996).

    There are two good reasons for granting the state agency initial jurisdiction over even federal discrimination claims. The first is "to let states ‘forestall federal intervention’ for 60 days while they handle discrimination claims on their own." Ford v. Bernard Fineson Development Center, 81 F.3d 304, 311 (2d Cir.1996). The second reason is "to promote the efficient processing of claims." Id. The United States Supreme Court further emphasized the goal of making federal involvement a last resort in stating that the 60-day period "give[s] state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated." Mohasco Corp. v. Silver, 447 U.S. 807, 821 (1980).

    Furthermore, § 2000e-5(b) also requires the EEOC, upon obtaining jurisdiction and in determining reasonable cause, to give "substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section." (emphasis added)¹² This further evidences the dual federal goals of: (1) federal involvement in these claims as a last resort, and (2) efficiency. The Respondent narrowly interprets this sentence to apply to public hearings on complaints alleging solely violations of state or local law, however a plain reading of the italicized wording shows that the intent is to give substantial weight to even public hearings on ADA claims addressed in public hearings commenced under authority of procedures established by state and local law as permitted by § 2000e-5(c) and (d). Based on the above, it is the ADA statute, itself, which dictates that the Commission, as a state agency charged with processing discrimination complaints, address and process ADA claims. The Respondent argues, however, that a specific provision must allow for the state agency to adjudicate ADA claims, and since no specific provision is included in the ADA, then the Commission cannot have jurisdiction to adjudicate these claims. I disagree.

    First, § 2000e-5(c) does not state what type of processing must occur within that 60-day period. Presumably, the Commission has the authority to investigate, issue a reasonable cause finding, certify the complaint, and even conduct a public hearing within that 60 days.¹³ The statute does not provide that the initial period is supposed to automatically end upon conclusion of any specific stage in the process, meaning if the reasonable cause finding was issued after 20 days, the EEOC’s jurisdiction does not begin according to § 2000e-5(c). Second, the work sharing agreement between the EEOC and the Commission further demonstrates the federal agency’s acknowledgment that the Commission would be adjudicating federal claims.

    The EEOC is specifically authorized by the ADA¹⁴ to enter into agreements with state agencies in "deferral states." A deferral state is one with its own antidiscrimination laws and administrative agency dedicated to enforcing them. Walker v. Envirotest Systems, Inc., 77 F.Supp.2d 294, 296 fn.2 (D.Conn.1999); Doe v. Odili Technologies, Inc., 1997 WL 317316, *2, No. 3:96CV1957(AHN), (D.Conn.1997). Connecticut is a deferral state. Id. The district offices of the EEOC enter into contracts called "workshare agreements" with the state agencies within deferral states, including the Commission, which provide for the dual filing of charges. The EEOC enters into annual workshare agreements with these agencies for the purpose of allowing them the opportunity to investigate and "resolve" Title VII, ADA, and ADEA claims, and provides financial compensation for their involvement. Workshare agreements have the same impact on complainants as a statute or regulation. Ford v. Bernard Fineson Development Center, 81 F.3d 304, 307 fn.5 (2d Cir.1996). "In a sense, they are localized subsets of federal regulations." Id.

    The Commission attached a copy of the workshare agreement between the Boston division of the EEOC and the Commission for fiscal year 1999 to its Reply Brief.¹⁵ The agreement states that the Commission will initially process federal claims including the ADA unless a request is made by the EEOC to proceed first. (¶III) It also provides that "once [the Commission] begins an investigation, it resolves the charge." (¶¶II.C and V., and ¶II.C to Section C, attached to agreement)

    The Respondent argues that "resolves the charge" cannot include adjudication because the EEOC does not have such a power and therefore cannot delegate authority that it does not have. However, the agreement does, in fact contemplate the Commission adjudicating federal claims and the Commission’s authority to adjudicate comes from state statutes and its own regulations.

    In "resolving a charge" the work sharing agreement (hereinafter, the "Agreement") clearly intends for the agency to process a complaint it receives, including federal claims, through to conclusion. In Paragraph II B, the Agreement specifies that the Commission "shall take all charges alleging a violation of . . . the ADA." Id. "Once an agency begins an investigation, it resolves the charge." ¶II.C The Agreement further states that the only way for the charge to be transferred to the EEOC is if the complainant "provide[s] written and compelling reasons for such a transfer." The Section entitled "Resolution of Charges" sets forth the information the EEOC must review in order to accord substantial weight to the state agency’s "final finding and order." ¶V.B Part of this information includes "relief, if appropriate" and "orders after public hearing." ¶V.B.3-4 Additionally, the Commission is not eligible for its financial compensation pursuant to the Agreement until a final action, which is defined as "the point after which the Charging Party has no administrative recourse, appeal, or other avenue of address." ¶V.D. Based on the above language, it is clear the Agreement and the EEOC intended for the Commission to adjudicate and process through the public hearing stage federal claims, including the ADA.

    Section C, attached to the Agreement (the "Attachment"), further supports this conclusion. In the Section entitled "Background," the Attachment states that the EEOC "is authorized by statute to utilize the services of State [agencies] to assist it in meeting its statutory mandate to enforce . . .the [ADA]. ¶I.A. Later, it specifies that "once EEOC or [the agency] has been designated to process the charge, the other shall refrain from processing the charge pending completion by the initial processor to minimize duplication of effort. (emphasis added)" ¶ II.C And finally, when the Commission applies for its financial compensation for processing said federal claims, it shall submit "final orders issued following and pursuant to administrative hearings and litigation." ¶III.A.2. See also ¶IIIA.3.d

    Therefore, the Attachment provides further evidence that the workshare agreement allows for the Commission to adjudicate federal claims, including the ADA. Although the EEOC may not have authority to adjudicate, the Commission clearly does pursuant to state statutes and state regulations. See General Statutes § 46a-84 and Regulations of State Agencies § 46a-54-102-109. In fact, the Attachment provides that charges processed by state agencies are processed in accordance with applicable state law. ¶III.A.3.g.

    Even further evidence of the Commission’s authority to adjudicate federal claims can be found in the EEOC’s "Notice of Charge of Discrimination" form. See Exh. R-2. The form states it is to be used when state agencies initially process discrimination charges. The first page specifically references the ADA:

    The Respondent further states that presiding hearing officers are only authorized by General Statutes § 46a-86(a) to determine whether respondents have engaged in a "discriminatory practice," and General Statutes § 46a-51(7) and (8) do not define "discriminatory practice" to include the ADA. It is here determined that both the ADA and the Agreement provide the Commission and its human rights referees with the authority to adjudicate federal claims, including the ADA. Furthermore, in the recent superior court decision, Trimachi v. Connecticut Workers Compensation Committee, 2000 WL 872451, (Conn.Super.June 14, 2000)(No. CV 970403037S), 27 Conn.L.Rptr. 469, the Court stated, "General Statutes § 46a-58(a) has expressly converted a violation of federal antidiscrimination laws into a violation of Connecticut antidiscrimination laws." Id. at *7. Therefore, an alleged violation of the ADA becomes an alleged violation of General Statutes § 46a-58(a), which is specifically included in the definition of "discriminatory practice" under General Statutes § 46a-51(8).

    Based on the above, the Respondent’s Motion to Dismiss the ADA claim is denied.

    The Respondent references a decision rendered in an arbitration hearing conducted pursuant to the Complainant’s collective bargaining agreement in which the arbitrator found in favor of the Respondent and even concluded that the Respondent did not violate the ADA in failing to recall the Complainant. (Exh. R-30) The Respondent argues that this decision should be given substantial weight by the undersigned—so much weight, in fact that the Complainant should be precluded from receiving any financial remedy due to the arbitrator’s decision to not award any damages.¹⁶ I disagree.

    General Statutes § 46a-85(b) permits the entry into evidence of a prior arbitration decision and, as with any evidence admitted into the record, leaves it to the presiding officer’s discretion as to how much weight to assign it:

Id. Additionally, the law is clear that, absent an explicit waiver in the collective bargaining agreement, an employee is not precluded from pursuing employment discrimination claims either in this forum or in state and federal courts, in spite of an earlier adverse arbitration decision.

    Subsection (a) of General Statutes § 46a-85 provides in no uncertain terms that: "The submission of a claim to the arbitration process shall not bar a person from filing a complaint under this chapter." The case law is in accord.

    Probably the most compelling case in reference to this issue, is the Connecticut District Court case, Beason v. United Technologies Corp., Hamilton Standard Division, 37 F.Supp.2d 127 (D.Conn.1999). The plaintiff, Donald Beason, was actually the subject of the same recall as the Complainant, and had also been denied recall based on his medical restrictions. He was a member of the same union as the Complainant, subject to the same collective bargaining agreement as the Complainant, his grievance was submitted to the same arbitration hearing as the Complainant, and the arbitration decision similarly denied each of their grievances, finding in favor of the Respondent. (Exh. R-30). The District Court held that the plaintiff’s federal ADA and Connecticut Fair Employment Practices Act, General Statutes §§ 46a-51 et seq. (hereinafter, "CFEPA") lawsuit was not precluded by the previous arbitration decision which determined that the Respondent had not violated the ADA. Id. at 133.

    The Beason court referred to the United States Supreme Court case, Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct 1011 (1974), which held that a union member’s right to bring a private action under Title VII was not waived by a prior arbitration pursuant to his collective bargaining agreement. Id., at 52. Beason referred to the same reasons used in Alexander in reaching its decision that a prior arbitration did not preclude the plaintiff from bringing a private action under the ADA and CFEPA. Beason, supra, at 131-33. First, it pointed to the arbitrator’s jurisdiction which is based on contractual rights, rather than statutory ones. Second, it referred to the "comparatively inferior" labor arbitration process, itself, next to a judicial forum. And perhaps most significantly, the interests of the individual employee may be subordinated to those of the union. Id. at 131. The Court states:

Id. at 132. The court ruled further that the prior arbitration decision did not preclude Beason’s CFEPA claims, either. It referred to General Statutes § 31-51bb which provides: "No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under . . . a state statute solely because the employee is covered by a collective bargaining agreement." This has been interpreted by the Connecticut Supreme Court to apply to situations where a prior adverse determination of the same or similar claim had been rendered in an arbitration proceeding pursuant to a collective bargaining agreement. Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 484 (1993). The Beason court also pointed to the fact that the arbitrator’s decision dealt only with the ADA and not at all with CFEPA.

    The Genovese case cited in Beason involved a union member who also attempted to sue his employer after a prior adverse arbitration decision pursuant to his collective bargaining agreement. Although his claim centered on General Statutes § 31-290a, which prohibits retaliation by employers for an employee’s application for workers’ compensation benefits, the decision similarly centered on whether the prior adverse arbitration decision had any preclusive effect on his subsequent statutory court action. The Court ruled it did not, based on General Statutes § 31-51bb. Genovese, supra, at 486.

Id. at 484.

    As stated earlier, the United States Supreme Court in Alexander v. Gardner-Denver, supra, determined that an individual does not forfeit a private cause of action by first pursuing arbitration under a collective bargaining agreement. Id. at 59-60. It ultimately determined that an employee’s claim should receive de novo review by the federal court, although the arbitrator’s decision could be received into evidence and given as much weight as deemed appropriate by the court. Id. at 60.

    Although the court in Alexander explicitly refused to set standards for the weight to be given arbitral decisions, concluding that this must be based on the facts and circumstances of each case, Id. at 60 fn.21, it does provide some helpful guidance in suggesting that the following factors be considered:

Id. at 60 fn.21.

    Applying the above factors to the arbitrator’s decision dated October 25, 1996 (Exh. R-30) leads me to conclude that substantial weight should not be afforded this decision. First, the collective bargaining agreement does not even refer to the ADA or to CFEPA. Contrary to the Respondent’s assertion, the general statement included in the collective bargaining agreement that employees "cannot be discriminated against in violation of state or federal law" cannot in any way be said to conform substantially to the ADA or CFEPA. It doesn’t even mention any prohibition against discrimination based on physical disability, any duty of reasonable accommodation, and in fact, mentions every federal discrimination law except the ADA.

    As far as the degree of procedural fairness, it is difficult to tell without a transcript of the hearing. Still, some issues highlighted in Alexander and Beason are apparent. This was not a grievance related solely to the Complainant, but he was grouped with four other employees, including Beason. Also, this was presented by the union, which had exclusive control over the manner and extent to which the five grievances were presented. The Complainant’s interests may well have been subordinated to the collective interests of all employees in the bargaining unit, or to the interests of one of the other four grievances which the union might have strategized to be more "winnable."

    Although I did not read the record available to the arbitrator, even he acknowledged that he did not have enough evidence in the record to conclude whether one of the grievants was disabled. (Exh. R-30 at 11) As far as his special competence, I cannot make a determination other than to note that his signature block indicates he is a lawyer. Still, in rendering my own decision as to whether the Respondent is liable for disability discrimination under the ADA and CFEPA, I have read approximately 200 cases, which include all cases cited by the Commission and the Respondent, as well as research conducted on my own. In rendering his opinion, I notice that the arbitrator cites merely five cases. He does not even cite the relevant provisions from the ADA, itself.

    Other factors that lead me to give this opinion little weight, include the fact that the issue of the arbitration centers on whether the Respondent violated the collective bargaining agreement, with its vague non-discrimination clause, and not whether the Respondent violated the ADA and CFEPA, specifically. (Exh. R-30, at 2) Even more compelling, is that the arbitrator states that because none of the grievants asserted that they were disabled or asked for any accommodation, then "this alone compels the conclusion that the company did not violate the ADA at [the time of the recall]." However, the issue in this matter focuses on whether the Complainant was "perceived as disabled," and not whether he was, in fact, disabled, which brings him under the protection of the ADA and CFEPA.¹⁷ Therefore, based on all of these factors, I do not find the arbitrator’s decision to be entitled to substantial weight.

    Furthermore, I do not find the Complainant’s remedies to be precluded by the adverse decision. The arbitrator rendered his opinion not on the standards of law applicable to the ADA and CFEPA, but instead on the basis of whether the Respondent violated the collective bargaining agreement. Additionally, to limit the Complainant’s damages to injunctive relief based on the prior arbitration would be to penalize him for choosing the arbitration forum first, and effectively granting preclusive effect to the arbitrator’s decision, which the case law strongly prohibits. Such a finding would further discourage employees from even attempting arbitration of their grievances providing a deterrent effect that works against this quick, efficient, and less costly forum. The Supreme Court in Alexander even acknowledges that there can be no danger of duplicative recovery when the employer wins the prior arbitration. Alexander v. Gardner-Denver Company, 415 U.S. 36, 51, 94 S.Ct. 1011, 1021 fn.14 (1974). Also, if the employee won the arbitration, he would be less likely to pursue a subsequent private action. And finally, to limit the Complainant’s damages to the prior arbitration award would have the undesired effect of treating employees covered by collective bargaining agreements differently than those not covered by such agreements, in contravention of the intent behind General Statutes § 31-51bb as set forth in the Genovese decision.

    The Respondent cites the cases EEOC v. Kidder, Peabody & Co., 156 F.3d 298 (2d Cir.1998) and Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nixon, 210 F.3d 814 (8^th Cir.2000), petition for cert. filed August 25, 2000, which each limited the EEOC and Missouri Commission on Human Rights, respectively, to injunctive relief based on the prior arbitrations of the employees. As pointed out by the Commission, however, these cases are wholly distinguishable from the instant matter, because each involved individual agreements to arbitrate statutory claims, rather than arbitrations pursuant to collective bargaining agreements. Such circumstances permitted waiver of subsequent private actions as set forth in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In this matter, however, Alexander and Beason make it clear that the earlier decision of an arbitration pursuant to a collective bargaining agreement has no preclusive effect on a union member’s subsequent private statutory action, which necessarily includes a decision on damages.

    Based on the above, the Complainant shall not be bound by the arbitration award with respect to an award of remedies, if any, before this tribunal.

    The Respondent’s final argument to dismiss focuses on Section 301 of the Labor –Management Relations Act of 1947 ("LMRA"), codified as 29 U.S.C. § 185. The Respondent submits that the Complainant’s state law claims are preempted by § 301 because in an analysis of the Complainant’s prima facie case, it must be determined whether the Complainant was qualified for the position, which will require an analysis of the recall rights and seniority provisions of the collective bargaining agreement.¹⁸ The Commission argues that the Complainant’s state claims do not require interpretation of the collective bargaining agreement. I agree with the Commission.

    Section 301 of the LMRA confers subject matter jurisdiction on the federal courts over suits alleging violations of a collective bargaining agreement. Lingle v. Norge Div. Of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877 (1988); Carvalho v. International Bridge & Iron Co., 2000 WL 306456, *3 (D.Conn.2000), No. 3:99CV605 (CFD). The statute provides as follows:

29 U.S.C. § 185(a). The United States Supreme Court has interpreted this legislation to mean that when resolution of a state-law claim is substantially dependent upon analysis of the terms of the agreement between parties to a labor contract, the claim must be treated as a § 301 claim or be dismissed as preempted by federal labor law, in order to promote uniformity and encourage utilization of the collectively bargained procedures. Lingle v. Norge Div. Of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877 (1988); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904 (1985).

    However, merely considering the same factual issues that would be raised by claims under a collective bargaining agreement would not automatically preempt the state law claims. Lingle, supra, at 409. The key is whether the state claims may be resolved without interpreting the collective bargaining agreement, itself. Id., at 409-10. Therefore, this analysis must focus on whether the claims are independent of any rights established by the collective bargaining agreement or whether the claims are intertwined with the terms of the collective bargaining agreement. Carvalho v. International Bridge & Iron Co., 2000 WL 306456, *3 (D.Conn.2000), No. 3:99CV605 (CFD). "Not every dispute . . . tangentially involving a provision of a collective-bargaining agreement [ ] is pre-empted by § 301. . ." Allis-Chalmers, supra, at 211. Consequently, § 301 determinations of preemption must be made on a case-by-case basis. Id. at 220.

    Of the federal courts within Connecticut and the second circuit to have faced this issue, none have had to review state claims of discrimination against employers pursuant to CFEPA in the context of § 301 preemption. However, the most analogous claim to CFEPA that has repeatedly been addressed is General Statutes § 31-290a, which prohibits employers from retaliating against employees that exercise their rights under the Connecticut Workers’ Compensation Act. Section 31-290a also requires plaintiffs to show a prima facie case of retaliation, to which the employer must provide a legitimate reason, and to which the plaintiff then must show pretext. Carvalho, supra, at *4.

    In Carvalho, supra, the defendant-employer argued that its "legitimate reason" was based on the "just cause" provisions within the collective bargaining agreement, and therefore the plaintiff’s claims were necessarily preempted by § 301. The District Court disagreed. Judge Droney ruled that because the plaintiff’s rights under the Connecticut Workers’ Compensation Act are independent from his rights under the collective bargaining agreement, the employer’s liability under § 31-290a could be determined without reference to the collective bargaining agreement. Id. at *4.

    In the case, Baldracchi v. Pratt & Whitney Aircraft Division, 814 F.2d 102 (2d Cir.1987), cert. denied, 486 U.S. 1054 (1988), the Second Circuit also ruled that the plaintiff’s § 31-290a claim was not preempted by § 301 in response to the same argument by the defendant-employer. It held that the employer’s liability under the state statute is not determined by reference to the labor contract. Id., at 105. The employer would not have to prove "just cause" under the agreement. Furthermore, "even if the labor agreement proved that Pratt & Whitney could discharge an employee who filed a workers’ compensation claim, the provision would have no effect on Baldracchi’s claim under the Connecticut statute." Id. The Court further held that even though the agreement would have to be consulted in making a determination of damages, in terms of wages and benefits, "[d]etermination of the extent of damages is not the sort of ‘substantial dependence’ on the labor agreement that mandates section 301 preemption." Id. at 106.

    The Respondent points to another § 31-290a case, Duso v. Corbin & Russwin Architectural Hardware, Div. Of Emhart Industries, Inc., No. 3:93CV00862(AHN) (D.Conn.1994) which found the plaintiff’s claim was preempted by § 301. There, the court found that because it had to review the collective bargaining agreement in order to determine what, if any, bumping/seniority rights the plaintiff had, the claim was necessarily preempted. Id. at 9-10. The Respondent argues that this tribunal must also similarly review the recall and seniority provisions of the collective bargaining agreement in order to determine whether the Complainant was qualified. However, the Duso case is not at all similar to the instant matter.

    In Duso, the employer’s alleged act of retaliation was the denial of rights set forth within the collective bargaining agreement. Therefore, the collective bargaining agreement is not tangential to the statutory claim, but central. The court had to determine whether the plaintiff was entitled to any rights, and whether they were improperly denied, according to the terms of the collective bargaining agreement. The court noted that the case was unique:

Id. at 7-8, 9-10.

    Contrary to the Respondent’s assertion, the collective bargaining agreement in the instant case does not require an in depth review to determine whether the Complainant’s state claims have been violated. The Complainant is alleging that he was not reinstated because of his perceived disability. He is not alleging that he was not recalled pursuant to his rights under the collective bargaining agreement or assigned the proper seniority based on those provisions. In fact, the Respondent has never asserted or offered any evidence that the Complainant was improperly recalled or given rights under the collective bargaining agreement to which he was not entitled. Furthermore, the Complainant’s qualification for the Composite Technician III position does not require a review of his recall rights, but instead, a review of the witness testimony and job descriptions for a determination of essential functions and a comparison to the Complainant’s physical abilities based on medical evidence and testimony. Therefore, the Duso case is not instructive to this matter.

Of the cases outside of this state and district that have addressed state employment discrimination claims in the context of § 301 preemption, they have ruled similarly. See Naples v. New Jersey Sports And Exposition Authority, 102 F.Supp.2d 550 (D.N.J.2000)(Plaintiff’s state disability discrimination claim not preempted); Mixer v. M.K.-Ferguson Company, 17 F.Supp.2d 569 (S.D.W.Va.1998)(plaintiff’s state age discrimination claim not preempted); Araiza v. National Steel and Shipbuilding Co., 973 F.Supp 963 (S.D.Cal.1997)(plaintiff’s state disability discrimination claim not preempted); and Milton v. Scrivner, Inc., 53 F.3d 1118 (10^th Cir.1995)(plaintiff’s state disability discrimination claim not preempted).

    Two out-of-state cases are almost exact replicas to this one. The first, LaRosa v. United Parcel Service, 23 F.Supp.2d 136 (D.Mass. 1998), involved a union employee alleging state claims of age and disability discrimination in his discharge. There, the defendant employer argued the claims were preempted by § 301 because in order to determine whether the plaintiff was qualified for the position, the court would have to review the collective bargaining agreement. Id., at 146. The district court did not accept that argument.

Id. at 147.

    As discussed above, in order to determine whether the Complainant, here, was qualified for the position, it will not even be necessary to review the collective bargaining agreement at all. The recall and seniority provisions of the agreement are not in dispute, neither is the issue of whether the Complainant was properly recalled pursuant to its terms. Therefore, the essential functions of the position may be gleaned from testimony and other documentary evidence.

    The second out-of-state case that is eerily on point is Potvin v. Champlain Cable Corp., 165 Vt. 504, 687 A.2d 95 (1996), involving a union employee alleging state disability discrimination claims against her employer. The employer argued that the claims were necessarily preempted because the seniority provisions of the collective bargaining agreement would have to be analyzed as to whether a reasonable accommodation existed. In finding that the state claims were not preempted, the court reasoned that "it is difficult to imagine a discrimination claim brought by a union employee that would not tangentially involve a collective bargaining agreement. . ." Id. at 514.

Id., at 514. Based on the holding in Potvin, the Respondent’s identical argument regarding accommodation is also rejected. The Respondent has asserted that there were no other positions available at the time of the recall that could have accommodated the Complainant’s restrictions. The Complainant offered no contrary evidence. Here, also, the collective bargaining agreement provisions are not central to the Complainant’s claim, nor are any provisions in dispute. Therefore, if any reference must be made to the agreement at all, it is merely tangential to the Complainant’s state law claims and therefore does not effect preemption pursuant to § 301.

    The two cases cited by the Respondent are completely inapposite to the above authorities. First, the court in Reece v. Houston Lighting & Power Co., 79 F.3d 485 (5^th Cir.1996), cert. denied, 519 U.S. 864 (1996), pre-empted the plaintiff’s state race discrimination claims because the very wrongful acts complained of were the discriminatory application of provisions within the collective bargaining agreement. As with Duso, cited above, the agreement then becomes central and not tangential to the state law claims, and the claims must then be preempted. In Davis v. Johnson Controls, Inc., 21 F.3d 866 (8^th Cir.1994), cert. denied, 513 U.S. 964 (1994), although the facts are similar to Potvin, the state law is not. In Missouri, a specific state statute requires the review of the collective bargaining agreement in order to determine reasonable accommodation. Furthermore, the parties in Davis disputed the meaning and application of the seniority provisions within the agreement, requiring the court to interpret it. Those circumstances are not at issue here.

    Therefore, based on the above, it is here determined that the Complainant’s state claims of discrimination are independent from the collective bargaining agreement and not substantially dependent upon an analysis of the collective bargaining agreement. It follows then, that the state claims are not preempted by § 301.

5. Liability for Disability Discrimination

    The Complainant and the Commission allege that the Respondent perceived the Complainant to be disabled and thereby failed to reinstate him after a pre-employment medical examination pursuant to a recall. The Complainant had been recalled for the position of Composite Technician III and they argue that he was qualified to perform all the essential functions of that position without accommodation, and, for the limited function of lifting above the waist, the Respondent could easily have provided accommodation in the form of brief assistance by other employees.

    The Respondent argues that the Complainant is not disabled under either the ADA or the CFEPA. It asserts that the CFEPA does not recognize perceived disability claims. The Respondent also submits that the Complainant was not qualified for the position of Composite Technician III in that he could not perform the lifting functions. Furthermore, an employer is not required to accommodate a perceived disability under either the ADA or the CFEPA. Even if it was, accommodation was not possible for this position in either the form of a lifting device or another employee’s assistance and there were no other positions available.

1. Federal Law

    The Complainant and Commission allege that the Respondent’s ultimate failure to recall the Complainant violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. The ADA prohibits discrimination:

42 U.S.C. § 12112(a). To sustain a claim pursuant to the ADA, the Complainant must first set forth a prima facie case of discrimination. This means he must establish the following four elements:

Bobreski v. Ebasco-Rayethon Constructors, 216 F.3d 1071, 2000 WL 730377, *2 (2d Cir.2000). In order to set forth a prima facie case, a complainant must demonstrate each and every one of the above four elements. Sedor v. Frank, 42 F.3d 741, 746 (2d Cir.1994), cert. denied, 515 U.S. 1123 (1995); Motta v. Meachum, 969 F.Supp. 99, 111 (D.Conn.1997). The first element, whether the Respondent is subject to the ADA is not an issue as the Respondent concedes that it is subject to the ADA. Respondent’s Post-Hearing Brief, at page 44. Therefore, the Complainant must establish the remaining three elements by a preponderance of the evidence.

    Whether Complainant was Disabled within the Meaning of the ADA

    This is an unusual case in that the Complainant is not alleging that he is currently disabled, nor that he was disabled at the time the Respondent failed to recall him to the position of Composite Technician III. Instead, he is alleging that he was perceived, or "regarded as" disabled by the Respondent.

    Whether a person has a disability is an individualized inquiry. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2147 (1999). The ADA defines a "disability" as:

42 U.S.C. § 12102(2). Therefore, based on the statute, the Complainant must show that the Respondent regarded him as (i) having a physical or mental impairment that (ii) substantially limited (iii) one or more of his major life activities. Id. Whether an individual is "regarded as" having a disability "turns on the employer’s perception of the employee and is therefore a question of intent, not whether the employee has a disability." Colwell v. Suffolk County Police Department, 158 F.3d 635, 646 (2d Cir.1998), cert. denied, 526 U.S. 1018 (1999). "The mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action." Reeves v. Johnson Controls World Services, 140 F.3d 144, 153 (2d Cir.1998)

    Because the regulations of the Equal Employment Opportunity Commission (EEOC) may be used to clarify the ADA, Hernandez v. City of Hartford, 959 F.Supp. 125, 129 (D.Conn.1997), their definitions of the above terms provide useful guidance. A "physical or mental impairment" is defined in the federal regulations as "any physiological disorder, or condition, . . . affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular . . ." 29 CFR § 1630.2(h)(1). "Major life activities" include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 CFR § 1630.2(i). "Substantially limits" means:

29 CFR § 1630.2(j)(1). To establish that an employer regards an employee as disabled, the employee must show that the employer either: (1) "mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities" or (2) "mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2149-50.

    It appears that the Commission is arguing that the Respondent regarded the Complainant as having a physical impairment that affected the major life activity of lifting. The evidence reveals that the Complainant had lumbar disk surgery in 1962 which resulted in the Respondent’s medical department assigning him a 50-pound weight restriction during his entire employment with the Respondent. (Tr 77, 190; Exh. R-12, R-13, R-14) At the time of his pre-employment physical due to his recall, the physical therapist notes in her report that he exhibited "no evidence of lumbar dysfunction" although he has "decreased flexibility" in the lumbar region." (Exh. R-20) However, when the Complainant subsequently met with Dr. Wiechetek, Dr. Wiechetek reduced his weight restriction in part because of his back condition and additional symptoms he noted in his medical file that resulted in a myelogram. (Tr 432; Exh. R-36) This constitutes a physical impairment pursuant to the ADA in that it affected the musculoskeletal body system.

    The evidence further reveals that the Complainant had double bypass surgery in 1989. (Tr 199; Exh. R-22, R-36) The Complainant returned to work with a letter from his cardiologist, Dr. Steven M. Horowitz, which stated that the Complainant "would benefit from a job with activities of a lighter nature, such as inspecting materials, etc." (Tr 98, 199; Exh. C-31) Based on Dr. Horowitz’ letter, the Respondent added an additional restriction to the Complainant’s record of no lifting above the waist in 1990. (Tr 426, 446; Exh. R-14) This restriction remained in his file at the time of his recall. The physical therapist recommended in her report at the time of the pre-employment examination pursuant to the recall that "some type of weight limitation or mechanical assist in lifting" be employed and notes his "previous cardiac history." (Exh. R-20) When the Complainant met with Dr. Wiechetek, Dr. Wiechetek reduced his weight restriction in part because of his heart condition. (Tr 432; Exh. R-36) He did not change the previous restriction forbidding lifting above the waist. (Tr 323, 325; Exh. R-14) This heart condition, also, constitutes a physical impairment under the ADA, as it is a condition that affects the cardiovascular body system.

    However, to meet the definition of the ADA, the Respondent must also regard these two physical impairments as "substantially limiting" a major life activity. The Commission argues they were regarded as affecting the major life activity of lifting. Although lifting is not listed as a major life activity in the EEOC regulations, the case law recognizes it as such. See Colwell v. Suffolk County Police Department, 158 F.3d 635, 643 (2d Cir.1998), cert. denied, 526 U.S. 1018 (1999); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 26 (D.Conn.1999); aff’d 216 F.3d 1072 (2d Cir.2000). Dr. Wiechetek testified he lowered the Complainant’s previous lifting restriction from 45-50 pounds to 30-40 pounds based on his heart condition and his back condition. (Tr 323, 432; Exh. R-15) Additionally, he kept the previous restriction of no lifting above the waist, which had been imposed after the Complainant’s bypass surgery. (Tr 323, 325; Exh. R-14, R-15)

    It is unclear from its Post-Hearing Brief whether the Commission alleges that the Respondent regarded the major life activity of working to be affected. The Respondent, also, could not determine from the Brief whether working was alleged, but safely chose to argue against it. The EEOC regulations include working as a major life activity and in the event that the Complainant is found not to have been regarded by the Respondent as substantially limited in the major life activity of lifting, the major life activity of working will be analyzed as well. See Sutton, supra, at 2151.

    The most difficult component of a finding that a complainant is disabled under federal law, however, lies in the "substantially limited" analysis. As stated above, it is not enough that the Respondent regarded the Complainant’s physical impairments to merely affect the major activity of lifting, but instead, the Respondent must regard the Complainant’s physical impairments to substantially limit the Complainant’s major life activity of lifting. This determination requires an individualized inquiry that is fact-specific. Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2147 (1999).

    As repeated earlier, the Respondent’s medical director, Dr. Wiechetek, reduced the Complainant’s medical restrictions from 45-50 pounds to 30-40 pounds based on his back condition and heart condition. However, of the many courts that have reviewed even lighter lifting restrictions, it has not been found that these restrictions, alone, were substantially limiting of the major life activity of lifting. See Gittens v. Garlocks Sealing Technologies, 19 F.Supp.2d 104, 111 (W.D.N.Y.1998) (Inability to lift items in excess of 30 lbs); Thompson v. Holy Family Hospital, 121 F.3d 537, 540 (9^th Cir.1997) (25-lb lifting restriction not substantially limiting). In the most similar case, Zarzycki v. United Technologies Corp., 30 F.Supp.2d 283 (D.Conn.1998) the district court held that "[m]erely being unable to perform a discrete task such as heavy lifting does not mean plaintiff is substantially limited in the major life activity of lifting." Id. at 289. Furthermore, citing an Eighth Circuit case, Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8^th Cir.1997) which held that a doctor’s lifting restriction, without more, did not constitute a disability under the ADA, and a 4^th Circuit case, Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4^th Cir.1996), cert. denied, 520 U.S. 1240 (1997), which held that even a 25-pound lifting restriction was not a substantial limitation on the major life activity of lifting, the court ruled that the plaintiff, Zarzycki, who had a 10-15-pound lifting restriction, was similarly not substantially limited in the major life activity of lifting. Zarzycki, supra, at 289. Therefore, based on the above, it is here determined that the Respondent did not regard the Complainant to be substantially limited in the major life activity of lifting.

    Because the major life activity of lifting has been ruled out, the major life activity of working will be analyzed. As working is classified as a major life activity, it must be determined whether the Respondent regarded the Complainant as substantially limited in the major life activity of working. The EEOC has provided a more detailed definition for "substantially limits" when it pertains to working:

29 CFR § 1630.2(j)(3)(i). "The Second Circuit has interpreted this to mean foreclosure of a wide range of employment options within the employee’s field and foreclosure generally of the type of employment involved." EEOC v. Blue Cross Blue Shield of Connecticut, 30 F.Supp.2d 296, 305 (D.Conn.1998). Other factors that should be considered include the geographical area to which the individual has reasonable access, and the number and types of jobs: (1) utilizing and (2) not utilizing similar training, knowledge, skills or abilities, within the geographical area, from which the individual is also disqualified. 29 CFR § 1630.2(j)(3)(ii). "To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton at 2151. The inquiry must evaluate the number of jobs in the region from which the complainant was disqualified because of his lifting limitations in comparison to the jobs available to the average person of similar training, skills and abilities. Goldring v. Sillery Mayer & Partners, No. 3:98CV00301 (D.Conn.1999).

    Given the above, I do not find any evidence showing that the Respondent believed that the Complainant’s lifting restrictions substantially limited the Complainant’s ability to work either in a "class of jobs" or in a "broad range of jobs in various classes." The testimony reveals that the Composite Technician III position was the only position for which there were openings at the time of the recall. (Tr 508) The Complainant and the Commission do not dispute this. Since "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working," the Respondent’s failure to employ the Complainant for this unique position does not demonstrate its perception that the Complainant was substantially limited in the major life activity of working. A limitation on a single job does not transfer into a limitation on working. Muller v. Costello, 187 F.3d 298, 313 (2d Cir.1999).

    The Complainant has not shown that he was regarded as unable to perform a class or broad range of jobs. He produced no evidence that the Respondent regarded him as incapable of working in a broad range of jobs suitable for a person of his age, experience, and training because of his perceived impairments. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872 (2d Cir.1998) Mr. Scorzafava, the supervisor that made the decision to not hire the Complainant based on his restrictions, made the decision in reference to the specific position of Composite Technician III. Furthermore, the Complainant testified that Jim Goodman told him he would keep him in mind should any other positions become available. (Tr 105) This does not reveal that the Respondent regarded him as substantially limited in his ability to work. At most, he has shown that he was found unable to perform only a single job with a single employer. This is insufficient to prove that he was regarded as substantially limited in the major life activity of working.

    The district court in Zarzycki came to the same conclusion. The plaintiff, who also had been denied recall based on restrictions placed by Dr. Wiechetek in his pre-employment physical, claimed that the Respondent therefore perceived him as substantially limited in the major life activity of working. Id., at 293. The court pointed to the lack of evidence that the Respondent believed the plaintiff’s back injury prevented him from all positions as a tester and assembler, as well as the lack of evidence that the defendant regarded plaintiff’s back injury as significantly restricting him in his ability to perform a broad range of jobs in various classes. Id., at 295. The same lack of evidence exists in this case, as well.

    The Commission identifies two cases that support its position . The first, Rochford v. Town of Cheshire, 979 F.Supp. 116 (D.Conn.1997)¹⁹, involved a Public Works maintainer who was discharged due to work restrictions imposed by his doctor, which included detailed lifting restrictions. The plaintiff argued his lifting restrictions excluded him from all heavy lifting jobs which substantially limited the major life activity of working. The Court agreed. However, that case is significantly different than the Complainant’s set of circumstances. The plaintiff had much more explicit and limiting restrictions than the Complainant: he could lift 26 pounds above shoulder height; 34.5 from desk to chair; and 21.5 from chair to floor. Additionally, he had a weight restriction in a push/pull assessment, he had a limitation in how much weight he could carry in each hand; he could "only occasionally bend/stoop, squat, crawl, climb stairs, crouch, kneel, and balance." Id. at 120. His standing was limited to three hours a day in 30 minute intervals. Id. Finally, the plaintiff was specifically excluded from heavy labor jobs from his own doctor and was released to a light duty search. Id. The Complainant, however, merely had a 35-40-pound weight restriction, as well as a restriction forbidding any lifting above the waist. These restrictions, alone, have been found to not substantially limit the major life activities of working and lifting. However, the plaintiff in Rochford, had additional impairments which restricted his movements, including bending and crouching—often necessary to lift heavy objects—as well as a standing limitation. Furthermore, his own doctor determined he had reached "maximum medical improvement" and concluded he was not capable of performing his former heavy work position, based on all of these restrictions. The Complainant’s restrictions were simply not as severe, which rendered him not substantially limited in the major life activity of working.

    The second case cited by the Commission involved an employer’s mistaken interpretation of a medical record provided by its employee’s doctor. The Commission argues that the Respondent’s mistaken impression of Dr. Horowitz’ March 1990 letter as a permanent restriction supports its claim that the Respondent regarded the Complainant as substantially limited in the major life activity of working. In Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir.1999), the defendant employer forwarded a form to the plaintiff’s doctor asking whether the plaintiff’s work restrictions were permanent or temporary. The doctor checked a box stating the restrictions were, in fact, temporary. For some reason, the employer misinterpreted this form to actually say that the employee’s restrictions were permanent, and it discharged him on that basis. The employee’s doctor even wrote the employer again, reiterating that the restrictions were merely temporary, but the employer failed to reinstate him. Id. at 183-85. The Court held that this mistaken interpretation showed that the employer regarded him as disabled.

    However, the Taylor case is significantly different than the Complainant’s case. In Taylor, the plaintiff was given several restrictions by his doctor which limited his lifting and walking. More importantly, though, the employee was discharged by a letter from the employer which specifically stated that it had concluded he would be unable to perform "any job" with Pathmark, even with accommodation. The Court reasoned that this defendant had "considered him incapable of performing a wide range of jobs" and not just a particular job. Id. at 188. It was this perception that the employee could not perform a wide range of jobs which the court concluded supported the "regarded as" claim. Unlike the employer in Taylor, the Respondent simply concluded that the Complainant would be unable to perform the particular job of Composite Technician III.

    Based on the above, the Complainant and Commission have not provided me with a basis to determine that the Respondent regarded the Complainant as being substantially limited in any major life activity, I find that the Complainant has not shown that he was "regarded as an individual with a disability" pursuant to the ADA.

    Even if the Complainant had met the first prong of his prima facie case and had established that he was regarded as disabled pursuant to the ADA, he does not meet the second prong of his prima facie case, because he cannot show that he was otherwise qualified for the position of Composite Technician III, either with or without reasonable accommodation. The Commission contends that the Complainant was qualified for the position because: (i) he had performed similar tasks on blades during his tenure with the Respondent prior to his layoff; (ii) he had lifted much heavier blades in his prior position notwithstanding the lifting restriction; and (iii) only a minor portion of the position involved lifting above the waist and the Complainant could do such a task in spite of his restriction forbidding lifting above the waist. Furthermore, the Commission contends that the Complainant did not require any accommodations to perform the Composite Technician III job, however, he could have easily been provided one by the Respondent in the form of brief, periodic assistance by other employees.

    The Respondent counters that lifting, as well as lifting above the waist, are essential functions of the Composite Technician III position. The blade spar that the Complainant would be required to work on initially weighs 35 pounds, and his restrictions forbid lifting over 30-40 pounds. Therefore, he is unable to perform the essential functions of the position without accommodation. The Respondent also argues that reasonable accommodation is not a requirement with perceived disability claims. Even if it was a requirement, there was no reasonable accommodation for lifting in that lifting devices could not fit in the work area and to have another employee perform the lifting would disrupt the orderly flow of the process, as well as transfer essential functions away from the Complainant.

    In employment cases, an otherwise qualified person is "one who can perform the ‘essential functions’ of the job in question." School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 288 n.17; 107 S.Ct 1123 (1987), rehearing denied, 481 U.S. 1024; 107 S.Ct. 1913 (1987). In order to analyze this, the tribunal must apply a two-part test. The first part of the test determines the essential functions of the job and the second part evaluates whether the complainant can perform those essential functions, with or without reasonable accommodation. Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir.1991). This requires an individualized, fact-specific analysis. Arline, supra, at 287. The complainant bears the burden of proving "either that she can meet the requirements of the job without assistance, or that an accommodation exists that permits her to perform the job’s essential functions. Borkowski v. Valley Central School District, 63 F.3d 131, 138 (2d Cir.1995).

Essential Functions:

    Therefore, I must first consider just what the essential functions are for the position of Composite Technician III, the position for which the Complainant was recalled. A fact-specific inquiry into the essential functions involves a review of both the employer’s description of a job and how the job is actually performed in practice. Goldring v. Sillery Mayer & Partners, supra. Essential functions are defined by the federal regulations as the "fundamental job duties of the employment position," and do not include marginal functions. 29 CFR § 1630.2(n). A tribunal may consider the following evidence in reference to whether a particular function is essential:

29 CFR § 1630.2(n)(3). In making the essential function analysis, the tribunal should not second-guess the employer or require the employer to lower its standards. Goldring, supra.

    Applying the factors set forth in the regulations to this case, requires a review of the Respondent’s witness’ testimony to determine which functions of the Composite Technician III position were essential. Mr. Scorzafava, the general foreman for the Composite Technician III position in 1995 (Tr 474), gave a detailed, step-by-step description of the duties and process involved for the Composite Technician III position. (Tr 486-505) Of the several steps described, almost every one involved lifting the blades. (Tr 486-505) The blades weighed about 35 pounds, initially, and became heavier with each additional step within the process. (Tr 356) Two steps involve lifting the 35-pound blades above the waist—actually, they are lifted over one’s head. (Tr 489, 491) According to Mr. Scorzafava, lifting is an important part of the job of Composite Technician III, and the job cannot be performed without that function. (Tr 506) The job also cannot be performed without lifting above the waist. (Tr 506)

    Dr. Wiechetek testified that prior to performing the pre-employment examinations of the recalled employees, he visited the site of the position and determined what tests were necessary for the examination based on the duties of the position. (Tr 395) He noted that the position required lifting greater than 30 pounds. (Tr 402-03; Exh. R-10) Therefore, based on the testimony of both Mr. Scorzafava and Dr. Wiechetek, it is clear that the Respondent considered lifting to be an essential function of the position.

    The only job description of the Composite Technician III position entered into evidence is Exhibit C-4.²⁰ The first page of this two-page document lists a variety of duties, but does not specifically list anywhere the word "lifting" as a duty. Based on the job description on this page, it is not possible to determine which duties involve lifting and which do not. However, on the second page, under the category listing of "Physical Demand" the description states that it requires "Moderate physical demand" and that heavier weights are "occasionally" handled "with assistance." (Exh. C-4) The position is assigned a numerical degree of "3." The Respondent’s witness, Thomas Cryer, Director of Labor Relations, testified this means that the position requires sustained lifting of up to 40 pounds and occasionally lifting over 40 pounds. (Tr 589-90) These descriptions were prepared prior to the recall as the position of Composite Technician III had been amalgamated out of 20-29 positions, including the Complainant’s position of blade worker prior to his layoff. (Tr 591) The Physical Demand category had been created as a joint effort between the Respondent and the union. (Tr 579, 587)

    Based on Mr. Scorzafava’s testimony, it appears that the entire position involves lifting. As the uncontradicted testimony is that the blades weighed 35 pounds, this constant lifting involves lifting over 35 pounds. Lifting above the waist, however, is only performed twice during the process of each blade, however, each blade is lifted over the head for approximately five minutes per blade for six to twelve blades per shift. (Tr 365, 370) Therefore, a substantial amount of time is spent lifting, including lifting above the waist.

    As far as the consequences of not requiring the complainant to perform the function, it is obvious that there would be no part of the job left to do. (Tr 376) In fact, the lifting over the head is required to operate the press, which Mr. Scorzafava testified was a primary function of the position. (Tr 375-76)

    The last three factors are not helpful in deciding the essential functions of the position. The terms of the collective bargaining agreement do not provide guidance particular to this position and the work experiences of past and current incumbents were not entered into evidence, specific to lifting requirements.

    Therefore, based on the above testimony of Respondent’s witnesses, the job description, the amount of time spent performing the lifting and the consequences of not requiring the employee to perform the function of lifting, I find the ability to lift 35 pounds, as well as the ability to lift 35 pounds above the waist to each be essential functions of the position of Composite Technician III.

Performance of Essential Functions:

    The next phase of the "otherwise qualified" is to determine whether the Complainant could perform the essential functions of the Composite Technician III position, with or without accommodation. The Complainant was recalled to this position pursuant to his collective bargaining agreement. The witnesses have all testified that because his former position had been amalgamated into this new position, along with 20-29 other positions, he qualified for this recall. There has been no evidence or testimony presented that the Complainant was improperly recalled, nor has there been any evidence that his seniority was in question. Therefore, it is hereby assumed that the recall was proper.

    Because the Complainant was the subject of a recall, he did not need to be qualified for each and every duty within the position, based on the collective bargaining agreement. In fact, the Respondent was required to cross-train the recalled employees for positions in which they did not have the requisite skills and experience, based on seniority. (Tr 484, 610) Because of the Complainant’s unique circumstances involving this recall, and because there is no evidence or claim by the Respondent of any other essential functions for which the Complainant was not qualified, it is here determined that the Complainant was qualified for all other essential functions, and my analysis shall focus on the essential functions of lifting and lifting above the waist.

    The evidence shows that the sole reason the Complainant was not recalled, was because the supervisor for the position, Mr. Scorzafava, determined that he would not be able to do the essential functions of his position, which would be the lifting functions, based on his restrictions. (Tr 516) There were two of four restrictions, specifically, that led to Mr. Scorzafava’s determination: (1) no lifting above the waist; and (2) no lifting over 30-40 pounds. (Tr 533-34; Exh. R-15) Mr. Scorzafava testified that he found each of these restrictions to be a "major problem," with lifting above the waist slightly more significant. (Tr 534) As the evidence shows that the blade involved weighed 35 pounds and it has been determined that lifting and lifting above the waist are essential functions, Mr. Scorzafava made a reasonable determination that the Complainant was not qualified for the position, and I now determine, as well, that the Complainant was not qualified for the position as he could not perform these two essential functions.

    The difficulty with this decision, however, is the fact that the Complainant’s lifting restriction had been reduced by the Respondent’s own medical director, Dr. Wiechetek, to a weight level that effectively eliminated him from the position. His weight restriction prior to the pre-employment examination pursuant to the recall, was 45-50 pounds and this would have qualified him for the position. (Tr 565; Exh. R-14) Dr. Wiechetek reduced the Complainant’s restrictions, knowing from his own personal site assessment in May of 1995, that the position required lifting over 30 pounds. (Exh. R-10) Additionally troubling, was that this change in the weight restriction was done without the Complainant’s knowledge. He testified he was aware of the 50-pound weight restriction, but not of the 30-40 pound weight restriction and I find that to be completely credible. Dr. Wiechetek had lowered this restriction after meeting with the Complainant for his examination, and never discussed this restriction with the Complainant or his doctor. Also, at the time the Complainant was told of the cancellation of his recall, Mr. Goodman did not inform him which restriction was responsible for him not being recalled. Although the Respondent disputes this, I believe the Complainant. I believe the Complainant would have done anything to get back to work with the Respondent, and if he had been told exactly what prevented him from being recalled, he would have made sure to make attempts to obtain the necessary documentation from his personal physician which disputed those restrictions. Yet, at the same time, The Complainant was told at the very least that the cancellation of the recall was due to some restriction. He could easily have called the Respondent’s medical department to find out just what those restrictions were, and attempt to have them removed. This he did not do.

    However, I see no evidence of any personal vendetta on the part of Dr. Wiechetek against the Complainant. He testified that he lowered the Complainant’s restrictions based on information in his medical file, including additional symptoms and a recent myelogram. Furthermore, there is nothing in the record that contradicts or shows that Dr. Wiechetek’s diagnosis was anything less than sound medical judgment. The Complainant did submit a letter he obtained from his cardiologist dated March 4, 1996 which specifically states that the initial restrictions given in the March 1990 letter were intended to be temporary and not permanent. (Exh. R-17) However, this information was not available to Dr. Wiechetek at the time he imposed the restrictions. It was his decision, as a medical doctor, in reviewing the physical therapist’s report, as well as in his own examination, that these restrictions were appropriate. Absent any evidence to the contrary at the time this decision was made and the restrictions imposed, this appears to be a reasonable conclusion. Perhaps if Dr. Horowitz had testified at the public hearing, I would have other evidence which might have changed this decision. However, that evidence is not in the record.

    Had the weight restriction not been reduced, the Complainant still would not have been qualified for the position, as he still had the restriction of no lifting above the waist, also determined to be an essential function of the position. In fact, Mr. Scorzafava said even with the 50-pound restriction, he still would not have been recalled due to the prohibition against lifting above the waist. (Tr 349) Dr. Wiechetek testified that he had imposed this restriction after the Complainant’s bypass surgery, again based on the Dr. Horowitz’ letter dated March 14, 1990. The Complainant claims he never knew about this restriction, therefore he could not have changed it. He also argues that the Respondent should never have relied on his cardiologist’s letter as imposing permanent restrictions when they were actually temporary. Again, a simple call or visit to the medical department after being informed that he would not be recalled may have cured this situation.

    Also, in a review of the 1996 letter, there is no place in Dr. Horowitz’ entire letter in which he states that the Complainant’s restrictions should be temporary. Neither does the letter impose a time frame for any restrictions. (Exh. R-16) It states in the present tense, "He would benefit from a job with activities of a lighter nature, such as inspecting materials, etc." This sentence does not imply at all that his difficulties are not permanent, in fact it appears to suggest an entirely different job with lighter duties than those he currently has, would be better for him. It appears to this medical layperson, that Dr. Wiechetek’s resulting imposition of the restriction of no lifting above the waist was perfectly reasonable. I do not entirely believe that the Complainant was unaware of this restriction, however. He did request his medical records on April 24, 1991, prior to his layoff which would have included his medical restrictions in place at that time. (Exh. R-24) Furthermore, the medical notes in his file reveal that he specifically wanted a copy of Dr. Horowitz’ March 1990 letter. (Exh. R-36) This suggests to me that he was either reviewing his medical restrictions or that he was looking to change them.

    In any event, based on the record, it appears that the Respondent’s doctor, Dr. Wiechetek imposed or retained the Complainant’s medical restrictions based on his pre-employment medical examination, tailored specific to the Composite Technician III position, and after a review of the Complainant’s medical file as well as meeting with the Complainant. There is no evidence to suggest the Doctor’s actions were anything but reasonable or made based on his experienced, sound medical judgment. Mr. Scorzafava then understandably determined that the Complainant would not be able to perform the essential functions of the position, namely lifting 35-pound blades and lifting them above his waist. I find also, that the Complainant could not perform the essential functions of lifting 35-pound blades nor could he perform the essential function of lifting 35-pound blades above his waist.

    The analysis cannot end here, as the ADA requires inquiry into whether the complainant would have been able to perform the essential functions of his position with reasonable accommodation. The Respondent argues, however, that because this is a perceived disability claim reasonable accommodation is not required. I agree.

    The ADA defines "reasonable accommodations" as those modifications to the workplace which allow an individual with a disability to perform the essential functions of a job or to enjoy the same benefits and privileges as an employee without a disability. 29 CFR § 1630.2(o). Some suggested accommodations include: job restructuring, reassignment to a vacant position, acquisition or modification of equipment, the provision of readers or interpreters, etc. 42 U.S.C. 12111(9). Reasonable accommodations, however, do not include modifications that would actually eliminate essential job functions. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir.1996); Worthington v. New Haven, 1999 WL 958627, *11 (D.Conn.1999); Motta v. Meachum, 969 F.Supp. 99, 115 (D.Conn.1997). "Employers need not accommodate an employee in the exact manner that the employee requests or provide the employee with the ‘best’ possible accommodation." Id. For example, "individuals whose physical condition precludes them from engaging in heavy lifting, and who seek jobs for which such lifting is shown to be an essential function, need not be accommodated by shifting responsibility for the lifting to other individuals." Borkowski v. Valley Central School District, 63 F.3d 131, 140 (2d Cir.1995). In the case, Bratten v. SSI Services, Inc., 185 F.3d 625, 633 (6^th Cir.1999), the Court held that the plaintiff’s reasonable accommodation request to have other employees assist him with lifting was not reasonable. "Courts have continuously found that employers are not required to assign existing employees or hire new employees to perform certain functions. . . which the employee cannot perform by virtue of his disability." Id., at 632.

    Reasonable accommodation has also been held to include transfer or re-assignment to another position. "[I]n order to recover . . . for a failure to reasonably accommodate by transfer, a plaintiff bears the burden of establishing that a vacancy existed in to which he or she might have been transferred." Jackan v. New York State Dept. of Labor, 205 F.3d 562, 566 (2d Cir.2000). "An employer need not reassign an employee if no position is vacant, and the employer is not obliged to create a new position to accommodate the employee." Micari v. Trans World Airlines, Inc., 205 F.3d 1323, 1999 WL 1254518, *1 (2d Cir.1999); Norville v. Staten Island University Hospital; 196 F.3d 89, 99 (2d Cir.1999). Additionally, an employer is not required to violate legitimate seniority requirements in a collective bargaining agreement in the transfer or promotion of an employee for purposes of reasonable accommodation. Boersig v. Union Electric Company, 2000 WL 891741, *4, No. 99-2699, (8^th Cir.2000); Davis v. Florida Power & Light Co., 205 F.3d 1301, 1306 (11^th Cir.2000), petition for cert. filed July 28, 2000; Bratten v. SSI Services, Inc., 185 F.3d 625, 634 (6^th Cir.1999); Willis v. Pacific Maritime Association, 162 F.3d 561, 568 (9^th Cir.1998).

   "The ADA envisions an ‘interactive process’ by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated." Jackan v. New York State Dept. of Labor, 205 F.3d 562, 556 (2d Cir.2000); Worthington v. New Haven, supra, at 13. The Second Circuit, in Borkowski v. Valley Central School, 63 F.3d 131, 137-38 (2d Cir.1995) established a two-step test to determine whether an employer has violated the ADA in reference to reasonable accommodation. First, it is the plaintiff’s burden to establish that an accommodation exists which would permit him or her to perform the essential functions of his or her position. Id. For this, the plaintiff bears "only a burden of production." Id. Next, the burden shifts to the defendant to prove that the proposed accommodation is not reasonable or would result in undue hardship. Id.

    Important to note is that it is the employee that has the initial responsibility to inform the employer that he even needs an accommodation and to identify the impairment that must be accommodated. Worthington, supra at 13. "An employer has no duty to provide an accommodation for a disability of which it has no knowledge." Id.

    This matter involves a complainant alleging that he did not actually have a disability, but instead was regarded as having one. At first blush, one would assume that the duty to provide reasonable accommodation is not dependent on the distinction because, in the employer’s mind, there is no distinction—to him/her, the employee is disabled. Therefore, an accommodation is necessary. However, the law cited above reveals that it is the employee’s duty to come forward and request or suggest a reasonable accommodation. If that employee is not disabled, he or she will believe they can perform the essential functions of their position without assistance, and will not be moved to request an accommodation. Therefore, there would be no "interactive process" between employee and employer," as required by the law. In fact, to take this a step further, to place a duty of reasonable accommodation on the employer for perceived disability claims, would grant non-disabled individuals a benefit not granted to disabled individuals—that of automatic accommodation without an initial request. This cannot be the intent of the ADA.

    Many courts that have considered this issue are in accord. In the EEOC case, Howard v. Widnall, 1994 WL 747979, *5 (E.E.O.C.1994), aff’d 163 F.3d 598 (4^th Cir.1998) the EEOC reversed the underlying agency’s ruling, that a complainant that had been regarded as disabled was entitled to reasonable accommodation, and held that he was not so entitled. See also Weber v. Strippit, Inc., 186 F.3d 907, 917 (8^th Cir.1999), cert. denied 120 S.Ct. 794 (2000); Kampouris v. Saint Louis Symphony Society, 52 F.Supp.2d 1096, 1104-05 (E.D.MO, 1999), aff’d 210 F.3d 845 (8^th Cir.2000); Cannizzaro v. Neiman Marcus, Inc., 979 F.Supp. 465, 475 (N.D.TX, 1997). The Commission urges this tribunal to adopt the decision of the First Circuit in Katz v. City Metal Co., 87 F.3d 26 (1^st Cir.1996) which held the opposite of these cases to be true. I decline to do so because logically, I cannot reconcile the Second Circuit’s placement of the burden of suggesting a reasonable accommodation on the employee with such a result. How can an employee, who does not believe he is disabled, suggest or request from his employer an accommodation? Furthermore, why should this burden be placed on disabled employees but not on non-disabled employees? Apparently the decisions of the EEOC, itself, and the other more recent court decisions place my reasoning in good company. Based on the above, it is here determined that the Complainant was not entitled to reasonable accommodations based on the fact that he has alleged a "regarded as" disabled claim.

    Even if this matter involved an actual disability, however, the Complainant still would not be entitled to reasonable accommodations. The Commission’s suggestion that other employees assist the Complainant in the lifting above the waist is not reasonable. Lifting above the waist has been determined to be an essential function of the Composite Technician III position. To assign that function to other employees would eliminate that function from the Complainant’s duties. The law is clear that such an action is not a reasonable accommodation.²¹ Also, Mr. Scorzafava testified that to have another employee perform the lifting functions of the job would be too costly in that the Respondent would be paying two employees to do the job of one. (Tr 506) Requiring an employer to pay separate salaries to two employees to perform the duties and essential functions of one is not a reasonable accommodation. Hershey v. Praxair, 969 F.Supp. 429, 435 (S.D.Tex.1997). Also, neither the Complainant nor the Commission disputed the Respondent’s position that no other positions were available at the time.

    Therefore, in consideration of the requisite elements of the "otherwise qualified" analysis it is here determined that the Complainant was not "otherwise qualified" for the position of Composite Technician III, and could not meet the second prong of his prima facie case of discriminatory discharge under the ADA. As it is here determined that the Complainant has failed to establish both the first and second prongs of his prima facie case, the third prong need not be addressed. The Complainant has failed to establish a claim under the ADA and this claim is dismissed.

1. State Law

    The Complainant alleges that the Respondent violated two state statutes: General Statutes §§ 46a-58(a) and 46a-60(a)(1).

Section 46a-58(a) provides:

As discussed in Section IV (A) of this Decision, this statute turns a violation of the federal employment discrimination laws into an automatic violation of state law. Since it has been determined that the Respondent did not violate the ADA, there is no resulting violation of General Statutes § 46a-58(a), and the claim is dismissed.

    This tribunal is now faced with one remaining claim, that the Respondent violated General Statutes § 46a-60(a)(1). Section 46a-60(a)(1) provides:

Id. The Complainant is alleging that he was discriminated against based on a perceived physical disability rather than an actual physical disability and the Respondent asserts that perceived disability claims are not recognized under state law. Therefore, the key to this analysis is whether state law even recognizes perceived disabilities. I find that it does.

    "Physically disabled is defined under subsection (15) of General Statues § 46a-51 as:

Id. Unlike the federal statute which defines disability to include being "regarded as" disabled, the Respondent points to the fact that the Connecticut statute does not, on its face, have specific language within the definition of "physical disability" which explicitly includes perceived claims. However, as cited by the Commission, the Connecticut antidiscrimination statutes are intended to be coextensive with the federal antidiscrimination statutes. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 a.2d 801 (1982). This is evidenced by General Statutes § 46a-58(a), itself, in that it turns a violation of the federal antidiscrimination laws into an automatic violation of the state antidiscrimination laws. Trimachi v. Connecticut Workers Compensation Committee, 2000 WL 872451, *7 (Conn.Super.June 14, 2000)(No. CV 970403037S), 27 Conn.L.Rptr. 469.

    Along these lines, to deny the assertion of perceived disability claims, particularly when they are recognized under federal law, would almost mock the remedial purposes behind General Statutes § 46a-60(a)(1). In other words, to prohibit an employer from discriminating against an employee due to his physical disability must necessarily include instances when the employer mistakenly perceives the individual to be disabled because in both instances an individual’s impairment or affliction is falsely presumed to adversely affect their ability to perform their jobs. Whether the disability is actual or merely perceived, in each case the employer makes an assumption about capability that is unrelated to actual qualifications. In the employer’s mind, which is the key to a finding of liability, each case is the same. Therefore, to allow an employer to escape from liability merely because the disability he thought he was discriminating against-- fortunately for him or her--is not medically verifiable, would be to reward the exact behavior the statute was intended to prohibit. This cannot be the intended result of General Statutes § 46a-60(a)(1).

    There is Connecticut court precedent recognizing perceived disability claims. The Connecticut Supreme Court in Ann Howard’s Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 676 A.2d 844 (1996) upheld a hearing officer’s finding of disability discrimination pursuant to General Statutes § 46a-60(a)(1) based on an employer’s perception that the employee suffered from AIDS. Id., at 224. The hearing officer had initially determined that the complainant had established a prima facie case of discrimination based on a physical disability or the "perception of a physical disability." Id. at 216. The Court ultimately held that the hearing officer had reasonably found that the employer had impermissibly discriminated against the employee based on his perception that the employee was suffering from AIDS. Id. at 227.

    Also, the superior court in The Gilman Brothers Co. v. CHRO, 1997 WL 275578, *1, No. CV950536075 (Conn.Super.1997) (McWeeny, J.) upholds, although it does not further define or explore, a hearing officer’s finding that the complainant "was physically disabled and/or perceived to be physically disabled with a chronic physical handicap or impairment[.]" Id.

    Of course, the most obvious acknowledgment of perceived disability claims pursuant to § 46a-60(a)(1) is found in the superior court case, CHRO ex. rel. Tucker v. General Dynamics Corporation Electric Boat Division, 1991 WL 258041, No. 517054, (Conn.Super.1991) (Axelrod, J.). "This court . . . finds that a person perceived as suffering from a particular handicap falls within the protection of § 46a-60(a)(1)." Id., at *6.²³

    Based on the above, it is here determined that state law, specifically, General Statutes § 46a-60(a)(1) also includes perceived disability claims. The issue remains whether the Complainant was perceived as disabled under Connecticut law by the Respondent.

    The Complainant alleges that he was perceived by the Respondent to have a disability due to two permanent work restrictions imposed by the Respondent’s doctor, Dr. Wiechetek, which forbid lifting over 30-40 pounds, and also forbid lifting above the waist. These work restrictions were imposed as a result of a letter from his cardiologist when he returned to work from bypass surgery dated March 14, 1990 imposing lifting restrictions. The Complainant alleges these restrictions were intended to be temporary however the Respondent perceived them to be permanent and therefore denied him recall to the position of Composite Technician III. The Complainant asserts that he is not disabled.

    Therefore, to be perceived as disabled under § 46a-60(a)(1), the Complainant must have been perceived by the Respondent to have a "chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes from illness."

    The Superior Court in The Gilman Brothers, supra, upheld the hearing officer’s definition of "chronic" as "[w]ith reference to diseases, of long duration, or characterized by slowly progressive symptoms; deepseated [sic] and obstinate, or threatening a long continuance; distinguished from acute." Id., citing Black’s Law Dictionary, pp.241-42 (Sixth Ed.1990).

    At the time of the Complainant’s recall for the Composite Technician III position, he testified that he was required to undergo a pre-employment physical examination. (Tr 86) He was given a medical examination by a nurse in the medical department, and then examined by a physical therapist. The physical therapist prepared a report based on the examination in which she recommended a weight limitation and gave the Complainant precautionary instructions on how to properly lift. (Tr 87-88; Exh. R-20)

    After meeting with the physical therapist, the Complainant met with the Respondent’s medical director, Dr. Wiechetek. About four months prior to this meeting, Dr. Wiechetek testified that he conducted an on-site inspection of the Composite III position to determine just what tests to administer to the recalled employees for the position. (Tr 395; Exh. R-10) The Complainant testified that Dr. Wiechetek asked him if there had been any changes in his condition which the Complainant denied. (Tr 90) At this point Dr. Wiechetek had only reviewed the Complainant’s new medical questionnaire with his previously completed one. (Tr 317) After the examination, Dr. Wiechetek examined the Complainant’s entire medical file. (Tr 317) Within this medical file was a letter dated March 14, 1990 from the Complainant’s cardiologist, which the Complainant submitted when he returned to work after his bypass surgery. (Tr 98, 199) The letter provides, in pertinent part:

(Exh. R-16) At the time Dr. Wiechetek received this letter, he testified that he interpreted this letter as requesting restrictions that were permanent because it contained no time limitation. (Tr 429) As a direct result of this letter, Dr. Wiechetek added a weight restriction to the Complainant’s file of no lifting above the waist. He also lowered the Complainant’s previous 50-pound weight restriction to no lifting over 45-50 pounds. (Exh. R-14) Later, at the time of the recall, Dr. Wiechetek reviewed these previous restrictions that were a part of the Complainant’s medical file, as well as the rest of the file, and the results of the examination and reduced the weight restriction from 45-50 pounds to 30-40 pounds. (Tr 323; Exh. R-15) Dr. Wiechetek testified that this was done because the Complainant was older, because of his heart condition, his back condition, and additional testing that the Complainant had undergone, including a myelogram. (Tr 432) In fact, medical notes in the Complainant’s file, which were reviewed by Dr. Wiechetek, reveal that he complained of pain in his right foot on February 15, 1991 and pain down the inside of his right leg on April 9, 1991. He underwent a CAT scan and a myelogram the previous week. (Exh. R-36) He asked to see the physical therapist for his right leg on May 16, 1991 and asked to go home due to pain in his right knee on September 9, 1991. (Exh. R-36)

    It appears that Dr. Wiechetek, a medical doctor whose qualifications include medical director of the Respondent,²⁴ Otis Elevator, International Fuel Cells, and Corporate Aircraft, as well as president or chairman of the United Technologies Senate, a council of all of the medical directors of United Technologies, imposed these work restrictions on the Complainant based on his professional assessment of the Complainant’s individualized condition, which also included a review of his medical file. This medical file had a letter from the Complainant’s own physician which requests not only lighter duties for the Complainant, but even suggests possibly a job other than the one he has, inspecting materials. This letter is written in the present tense ("it is difficult for him to do heavy upper arm work.") and does not state in any place that the restrictions should be temporary or limited in time. I find it perfectly reasonable that a doctor of Dr. Wiechetek’s experience and position would interpret this letter as imposing permanent restrictions which would last through to the period of the recall. I have no medical evidence in the record to suggest that this was an unreasonable assumption or conclusion. These restrictions were later reviewed by Mr. Scorzafava, the supervisor of the position who determined that because the blade involved with the Composite Technician III position weighed 35 pounds initially, and because the position involved significant lifting, including lifting above the waist, the Complainant was not qualified. (Tr 355) The issue is whether the Respondent perceived the Complainant to have a "chronic, physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes from illness" and the answer is no.

    Perceived disability claims involve an employer’s mistaken assumptions that a disability exists without any reasonable foundation, and that is not the case here. As the United States Supreme Court set out in Sutton, in interpreting "regarded as" claims under the ADA, there are two ways in which claimants meet the definition of "regarded as" claims, and each involves a mistake on the part of the employer. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2149-50 (1999).

Id. at 2150. As Connecticut discrimination law is modeled after federal discrimination law, this same mistaken belief on the part of the employer applies to perceived disability claims under General Statutes § 46a-60(a)(1). In this case, the assumptions were not made by a general manager or supervisor assessing the Complainant’s physical condition, but instead by a medical doctor who conducted an examination of the Complainant contemporaneous and specific to the recalled position.

    The Respondent’s medical director is a medical doctor who conducted an examination, spoke with the Complainant about his condition, and reviewed the report of a physical therapist, and in his sound medical judgment based the restrictions on the individualized medical examination of the Complainant by him, his nurse and the physical therapist, as well as the Complainant’s medical history. His resulting restrictions were not based on a perception of chronic physical impairments, but rather on his diagnosis of actual physical conditions that he determined necessitated work restrictions. There was no other medical evidence to indicate that his conclusions were unreasonable or the result of unsound medical judgment.

    Of all of the cases in Connecticut involving perceived disability claims, claims were upheld when the assumptions were made with no medical evidence to support them. In Ann Howard’s Apricots Restaurant, supra, the general manager of the restaurant had concluded on his own that one of his waiters had AIDS without any medical diagnosis, and discharged him while he was on leave. The court noted that he discharged the waiter without knowing whether he planned to return to work or whether his condition posed any risk to others. Id. at 227. As a result the court found that he had perceived the waiter to be disabled. Id. at 228.

    In Tucker, supra, the employer’s medical doctor imposed work restrictions related to the condition of claustrophobia on the plaintiff, however there was no medical diagnosis by anyone, including the medical director, that the complainant even had claustrophobia. The employer’s doctor actually referred the plaintiff out to a psychiatrist for an examination. Id. at *1. The psychiatrist concluded that the plaintiff did not suffer from claustrophobia and sent his report to the employer’s doctor. Id. The employer’s doctor, who reiterated that he, himself, made no diagnosis of the plaintiff’s claustrophobia, Id. at *8, for some reason still chose to impose medical restrictions related to claustrophobia. The court found this to be evidence that the employer perceived the complainant to have claustrophobia because his restrictions were not the basis of any medical diagnosis. Id. at *10.

    The federal cases mirror our state cases in that "regarded as" disabled claims were upheld when the assumptions were made without any medical basis. In Weissman v. Dawn Joy Fashions, 214, F.3d 224, 2000 WL 714377 (2d Cir.2000) the plaintiff suffered a heart attack. His doctor informed the employer that it would be 4-5 weeks before he returned to work. The employer, however, who was not a doctor, assumed for itself that it could be 4-5 months before he returned, and therefore discharged him. The Court found he was "regarded as" disabled. Id. at *8. In EEOC v. Blue Cross Blue Shield of Connecticut, 30 F.Supp.2d 296 (D.Conn.1998), the district court held the employer regarded the employee as disabled because it refused to hire the plaintiff after a pre-employment examination revealed a kidney disorder, without considering the qualifications and duties of the position for which the employee had applied. Id. at 305. In Young v. Bank of Boston Connecticut, 1995 WL 908616 (D.Conn.1995), the court found the employer regarded its employee to be disabled because even though his doctor had determined he could return to work without restrictions, the employer terminated him because it assumed he would be unable to "regularly attend work." Id. at *6.

    The Commission and the Complainant argue that because the restrictions requested by the Complainant’s doctor on March 14, 1990 were intended to be temporary but were interpreted as permanent, this supports a perceived disability claim. In fact, the Commission and the Complainant argue that in his job held after the bypass surgery and prior to his layoff, the Complainant lifted much heavier blades. Additionally, the Complainant’s physician submitted a letter dated March 4, 1996 which states that the requested restrictions in his 1990 letter were not intended to be permanent. (Exh. R-17) These do not support a perceived disability claim, however.

    First, the letter dated March 4, 1996 from the Complainant’s physician does state that he did not intend any restrictions imposed after the bypass surgery to be permanent. (Exh. R-17) However, Dr. Wiechetek did not have the benefit of this interpretation until five months after the decision not to recall the Complainant had been made. In fact, in a review of this 1996 letter, he states that "it was felt that he should not do heavy lifting for a reasonable period of time, to allow his chest to heal." Unfortunately, however, this language was not included in the 1990 letter, and Dr. Wiechetek did not have this impliedly temporary wording. Furthermore, the 1996 letter still does not specifically indicate that the Complainant is capable of lifting over 30-40 pounds as well as lifting above the waist—it merely states "he can return to all normal activities." Therefore, this letter, alone, does not contradict Dr. Wiechetek’s own professional assessment of the Complainant’s condition. Although the Complainant testified that he provided a copy of the job description to Dr. Horowitz so that he could write the 1996 letter, the doctor does not reference any part of the job description in this letter, in other words, he does not affirmatively state that the Complainant would be able to perform the duties and responsibilities—including lifting—encompassed in the Composite Technician III position. Therefore, the 1996 letter from Dr. Horowitz does not support the Complainant’s perceived disability claim. Dr. Wiechetek testified that if he had this 1996 letter it could have removed the restrictions upon further confirmation by Dr. Horowitz. (Tr 445)

    I also have no testimony from Dr. Horowitz or any other medical doctor which would contradict the assessment of Dr. Wiechetek. If another medical doctor provided testimony that perhaps, all doctors are aware that restrictions imposed after bypass surgeries are temporary, or that the additional symptomology in the medical notes from the Complainant’s file did not justify the restrictions imposed, a perceived disability claim would have been much stronger. However, there is no such evidence and I have no reason to disbelieve or discredit the medical experience and testimony of Dr. Wiechetek.

    As for the Complainant’s assertions that he was lifting much heavier blades prior to his layoff, this does not support his perceived disability claim. There is no evidence, other than the estimation by the Complainant, of the weight of these blades, and the blade worker job description in evidence does not contain the second page which lists the physical degree required for that position.²⁵ I have no testimony about the blade worker position comparable to Scorzafava’s testimony about the different steps involved in the Composite Technician III position. I do not know the extent or duration of the lifting involved for a blade worker. I do not know the extent and duration of utilization by blade workers of hoists for some of the duties. I simply do not have the same information to compare the lifting duties of both positions.

    Based on the above, I find that the Respondent did not perceive the Complainant to be disabled pursuant to General Statutes § 46a-60(a)(1).

    The result of finding that the Complainant was not perceived as disabled by the Respondent under State law, is that he does not fall under the protection of General Statutes § 46a-60(a)(1).

    The Respondent and Commission differ in which method of allocation of the burdens of proof should be applied to the Complainant’s prima facie case under state law. The Respondent argues that the indirect evidence method established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) should be applied, while the Commission states it should be the mixed-motive analysis set forth in Levy v. CHRO, 236 Conn. 96, 105-06 (1996).

    It is here determined that under the circumstances of this matter, in particular, it is the McDonnell Douglas analysis that must be applied. The McDonnell Douglas analysis, requires a complainant to prove the following four elements to establish a prima facie case: (1) that he or she belongs to a protected class; (2) that he or she applied and was qualified for the position in question; (3) that despite his or her qualifications, he or she was rejected; and (4) that after the rejection, the position remained available or was filled by someone who was not a member of a protected class. Id.; Ann Howard’s Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 225 (1996); Miko v. CHRO, 220 Conn. 192, 202-03 (1991). "The plaintiff’s burden of establishing a prima facie case is not onerous under this model." Ann Howard’s Apricots Restaurant, Inc., supra, at 225.

    In instances where the complainant does have direct evidence of an employer’s discriminatory motive, however, a different method applies, often called the mixed-motive analysis, and the prima facie case is established merely by complainant showing: (1) that he or she is a member of a protected class, and (2) "an impermissible factor played a ‘motivating’ or ‘substantial’ role in the employment decision." Levy v. CHRO, 236 Conn. 96, 105-06 (1996).

    The McDonnell Douglas analysis applies here because there is no direct evidence of the Respondent having a discriminatory motive. Although it is clear that the Complainant was not recalled due to his restrictions, because those restrictions were imposed based on a medical doctor’s examination of the Complainant and his medical file, they were based on Dr. Wiechetek’s sound medical judgment. Because there has been no evidence revealing that Dr. Wiechetek’s conclusions were anything but reasonable, the indirect model must apply as there is no evidence of a discriminatory motive. Of course, if Dr. Wiechetek had imposed the restrictions on the Complainant having never examined the Complainant and his file, or having never inspected the site to determine which medical testing was appropriate for the position, then there would be no basis for those restrictions, and the mixed-motive analysis would be appropriate. This was the case in Tucker. There, the court determined that the restrictions related to claustrophobia that had been imposed on the employee, even though there had been no diagnosis of claustrophobia by any medical professional, effectively operated to prevent him from being hired. Id. at *12. Because he was not hired based on unreasonable restrictions, the court found overt discrimination to have existed, which required the mixed-motive analysis. Id.²⁶

    Applying the McDonnell Douglas analysis, therefore, to the instant case, even if the Complainant was determined to have met the first element of his prima facie case, he would not meet the second element, that of being qualified for the position. For the reasons set forth above, under the federal analysis (Section IV.E(1)), the Complainant could not lift over 30-40 pounds or lift above the waist. Mr. Scorzafava testified that the propeller blades involved weighed 35 pounds. He also testified that a significant portion of the duties of the position involved lifting this blade, and at times, lifting it above the waist. Consequently, the Complainant was not qualified for the position of Composite Technician III.

    The Respondent argues further that, unlike the ADA, there is no duty of reasonable accommodation under state law. I disagree. Recently, the superior court in Trimachi v. Connecticut Workers Compensation Committee, 2000 WL 872451, (Conn.Super.June 14, 2000)(No. CV 970403037S), 27 Conn.L.Rptr. 469, addressed this exact issue. Citing the fact that state discrimination statutes are intended to be coextensive with the federal antidiscrimination statutes, and that no statute should be interpreted so as to "thwart" its purpose, the court held that the duty of reasonable accommodation should be inferred although it is not explicitly stated in the statute. Id., at *7-8.

Id. at *7.

    Other Connecticut courts have implicitly recognized a duty of reasonable accommodation. See Ezikovich v. CHRO, 57 Conn.App. 767, 750 A.2d 494 (2000), cert. denied, 253 Conn. 925 (2000) (discusses reasonableness of accommodation provided by employer); Kalanquin v. CHRO, 1998 WL 57767 (Conn.Super.1998) (employer found to be exempt from duty to reasonably accommodate); and Silhouette Optical, Ltd v. CHRO, 10 Conn.L.Rptr. 599, January 27, 1994 (Maloney, J.) (respondent employer had duty to investigate reasonable accommodations for employee’s disability).

    However, this case involves a perceived disability claim. As repeatedly stated herein, the state statutes are intended to be coextensive with the federal counterparts. Trimachi, supra. For the reasons stated above in the federal analysis, it is illogical to require a duty of reasonable accommodation on an employer for an employee that is not actually disabled, as they cannot and will not come forward with a suggested accommodation. Additionally, as stated above, the state statute cannot have intended to grant non-disabled individuals a benefit not granted to disabled individuals, that of an automatic accommodation without any initial request. Therefore, I find that there is no duty of reasonable accommodation imposed on employers for claims of perceived disabilities under state law. Therefore, the Respondent was not required to provide a reasonable accommodation.

    Even if I found otherwise, there was no reasonable accommodation available for this position. Mr. Scorzafava testified that hoists could not be used, and having other employees assist with the lifting would disrupt the orderly flow of the process as each employee is required to perform every function of the position. Plus, to have another employee perform the Complainant’s lifting duties would be too costly for the Respondent as it would be paying two employees to do the job of one. As such, the Complainant has not shown that he was qualified for the position of Composite Technician III. As he has not satisfied the first two elements of his prima facie case, his state claim pursuant to General Statutes § 46a-60(a)(1) must fail.

    Based on the above, the Complainant has not set forth a prima facie case under the ADA nor under state law and therefore all of his claims must fail. Judgment shall enter for the Respondent and the Complaint is dismissed.

    In light of the foregoing, in accordance with the provisions of General Statutes § 46a-86, it is hereby ordered that the Complaint be, and hereby is, dismissed.

Dated at Hartford, Connecticut this 27th day of September, 2000.

Hon. Lisa B. Giliberto
Human Rights Referee

C: Dominic C. Scarfo
David L. Kent, Assistant Commission Counsel II
Jeffry H. Odell, Esq., Manager, Human Resources, Hamilton Sundstrand Corporation
Henry A. Platt, Esq.