Commission on Human Rights and Opportunities

Clark v. Wal-Mart Stores, Mermorandum of Decision

Clark v. Wal-Mart Stores, Mermorandum of Decision

CHRO NO. 9830599

Commission on Human Rights and Opportunities ex rel. Jeffrey Clark Complainant  
v.
Wal-Mart Stores, Inc. Respondent

January 25, 2001

MEMORANDUM OF DECISION

I.    Preliminary Statement

The Public Hearing (hereinafter "Hearing") on the above-captioned matter was held on July 25, 26 and 27, 2000, pursuant to an Order of the undersigned Human Rights Referee dated May 9, 2000. Attorney Mark D. Soycher appeared on behalf of Mr. Jeffrey Clark (hereinafter "Complainant"). Joanne V. Yandow, Assistant Commission Counsel II, appeared on behalf of the Commission on Human Rights and Opportunities (hereinafter "Commission"). Attorney Gregory B. Reilly appeared on behalf of Wal-Mart Stores, Inc. (hereinafter "Respondent"). The issues addressed in this decision are: 1) whether the Respondent wrongfully discriminated against the Complainant when it demoted the Complainant and reduced the Complainant’s hourly pay rate, and 2) if so, whether the Complainant is entitled to any damages or other relief.

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. Judgment is entered in favor of the Respondent and the present complaint is DISMISSED.

II.     Parties

The Complainant, Jeffrey Clark, resides at 29 City Avenue, 2nd Floor, New Britain, CT 06051. The Commission is located at 21 Grand St., 4th Floor, Hartford, CT 06106. The Respondent, Wal-Mart Stores, Inc. is located at 702 S.W. 8th Street, Bentonville, AR 72716-8095.

III.     Procedural History

On June 10, 1998, the Complainant filed a complaint with the Commission alleging that the Respondent demoted him on March 11, 1998 because of his physical disability (speech impediment), in violation of General Statutes § 46a-60(a)(1) and the Americans With Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. §§ 12101 et seq., as protected by General Statutes § 46a-58(a). The Commission investigated the allegations of the complaint affidavit, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified to public hearing on September 9, 1999, in accordance with General Statutes § 46a-84(a). On September 20, 1999, the Office of Public Hearings sent to all parties of record the Original Notice of Public Hearing along with the complaint affidavit. The Respondent filed an answer to the complaint on October 12, 1999. The Hearing was held on July 25, 26, and 27, 2000. All statutory and procedural prerequisites to the public hearing were satisfied and this complaint is properly before the undersigned Human Rights Referee for decision.

IV.     Findings of Fact
  1. The Complainant suffers from a speech impediment, which does not impair his ability to think, read, father children, see or drive, but which does significantly impair his ability to speak. Transcript pages ("Tr.") 43; 255-258; 275-277.
  2. The Respondent operates retail stores in Connecticut and elsewhere and employs more than fifteen (15) employees. Joint Exhibit 1, Stipulated fact ("Sf.") 1; Complaint affidavit; Verified answer dated October 12, 1999.
  3. The Complainant began employment with the Respondent in Cromwell, CT on or about May 27, 1997, as a stock person at the rate of $6.00 an hour. Joint Exhibit 1, Sf. 10;CHRO/Complainant Exhibit 5.
  4. The Complainant was employed with the Respondent from May 1997 through February 1, 1999. Joint Exhibit 1, Sf. 10; Tr. 246.
  5. The Respondent employed thirteen (13) disabled persons during the Complainant’s employment with the Respondent. Tr. 447-448.
  6. Mrs. Elizabeth Wolfson-Ruiz was the training assistant and assistant manager and Mr. John Leone was the store manager for the Respondent in Cromwell during the Complainant’s employment. Tr. 426; 429.
  7. Jerry Lancto was also an assistant store manager during the Complainant’s employment. Tr. 62
  8. Mr. Lancto told the Complainant that he was doing a good job in his current position as a stock person. Tr. 861.
  9. The Complainant received a ninety (90) day associate evaluation on or about August 2, 1997, at which time he received an "above standard" rating and a thirty-six (36) cent pay increase from his supervisor, Mrs. Elizabeth Wolfson-Ruiz. Joint Exhibit 1, Sf. 13.
  10. When Complainant complained about being out in the cold as a stock person, the Respondent transferred him to the position of cashier with a twenty-five (25) cent increase in pay on or about November 6, 1997. Joint Exhibit 1, Sf. 15.
  11. On or about November 22, 1997, the Respondent temporarily transferred the Complainant to the Claims department with a fifty (50) cent increase in pay. Joint Exhibit 1, Sf. 16; CHRO/Complainant Exhibit 15.
  12. While the Complainant was working in the Claims department, Mr. Lancto had allowed the Complainant to help out in the furniture department. Tr. 80.
  13. The Complainant received an "Employee of the day" award in June 1997 and an "Employee of the month" award in August 1997. Tr. 282-3.
  14. In October 1997, the Respondent approved the Complainant’s week vacation to attend a bowling trip. Tr. 149; Joint Exhibit 1, Sf. 21.
  15. The Complainant asked Mr. Leone and Mr. Lancto to promote him to the Furniture department manager position. Tr. 75-78; 87-88.
  16. On or about December 3, 1997, the Complainant was temporarily assigned to the furniture department as the manager until December 5, 1997, when the incumbent manager returned. The Complainant was promoted to the Furniture department manager position with a pay increase of $1.50 per hour when the incumbent resigned on or about December 16, 1997. Joint Exhibit 1, Sf. 17; Tr. 74.
  17. The promotion to the Furniture department manager position was documented on an associate commendation form signed and dated by the Complainant and Mr. Leone on December 19, 1997. Joint Exhibit 1, Sf. 18; CHRO/Complainant Exhibit 16.
  18. Mr. Lancto was the Complainant’s coach and supervisor when he was promoted to Furniture department manager until some time in January 1998 when Mrs. Wolfson-Ruiz became the Complainant’s coach and assistant manager. Tr. 463; 478.
  19. The following is the list of the primary responsibilities for the Furniture department manager’s job:
    1. Provides excellent customer service through
    • Practicing a 10 foot attitude
    • Answering customer calls promptly
    • Maintaining 100% instock at all times
    • Meeting customer’s needs by assisting them whenever possible
    • Maintaining zero pricing errors (i.e. Scanning Credibility Program).
    1. Practices safe work habits by
    • Maintaining unblocked and unlocked exits
    • Ensuring spills are cleaned up immediately
    • Coaching Associates on proper lifting techniques
    • Always correcting unsafe conditions and behaviors
    • Ensuring the stable stacking of merchandise
    • Remaining knowledgeable about emergency and safety procedures
    1. Maintains departmental operational standards by:
    • Maintaining proper inventory levels
    • Following budgets for the department(s), including the shrink budget
    • Ensuring Associates are trained on the department(s) procedures
    • Ensuring departments are kept neat and clean
    • Understanding emergency procedures (i.e. accidents, codes)
    • Obtaining basic understanding of the SMART system
    • Fully understanding how to use the Hand-held Terminal properly
    • Completing the Store-Within-A-Store (SWAS) charts monthly
    • Completing price changes on time
    • Ordering merchandise on time
    • Assisting the Management Team with the Stocker’s performance appraisals, coaching and commendations
    • Following proper procedures on Markup/Markdown, Price Changes, Signing/Flagging/Labels, Clearance, Competition Shopping and Competition Pricing
    • Recording and adding cost/retail and other inventory information when necessary
    • Comparing end of the month (P&L/Journal) information to store files
    • Moving around the store to assess overall presentation of merchandise and appearance of the store noting deficiencies for corrective action
    1. Maintains departmental merchandising standards by:
    • Following rack rules
    • Setting modular layouts on time
    • Completing the Correction of Errors in a timely manner
    • Maintaining/Tracking productivity of features
    • Displaying correct signing
    • Ensuring risers are neat and stable
    • Rotating merchandise
    • Emptying back stock
    • Ensuring all merchandise is 100% instock and properly featured/priced
    • Processing and stocking freight
    • Establishing and maintaining adequate and accurate inventory levels
    • Maintaining accurate shelf labels
    • Developing 30/60/90 day merchandise plans
    • Planning and coordinating in-store merchandise promotions
    • Properly maintaining modulars using the Modular Activity Report, price changes, modular changes and the maximum shelf quantity bases on the Rate-of-Sale.

    Respondent Exhibit 12; See also Tr. 483-488; 490-496; 505-508; 475.

  21. In addition to the above-mentioned primary responsibilities, the Respondent desired sales floor merchandise experience as a prerequisite to the Furniture department manager position. Tr. 455.
  22. In order to qualify for the Furniture department manager position, the Respondent requires that an individual must be able to perform each essential duty satisfactorily. Also, the requirements listed below are representative of the knowledge, skill and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. Respondent Exhibit 12.
  23. The mathematical skills required for the Furniture department manager position are the ability to add, subtract, multiply, and divide in all units of measure, using whole numbers, common fractions, and decimals. Also required is the ability to compute ratio [sic] and percent [sic]. Respondent Exhibit 12.
  24. The basic reading and writing skills required for the Furniture department manager position are the ability to understand the meaning of written or printed matter and to record information by inscribing characters or symbols. Respondent Exhibit 12.
  25. The manager must complete all of the Respondent’s basic and advanced training modules and classes to fulfill the certification, licensing, and registration requirements. Respondent Exhibit 12.
  26. One of the six physical demands listed for the Furniture department manager position was to regularly lift and/or move up to 40 pounds (lbs.) and occasionally lift and/or move up to 80 pounds (lbs.). The physical demands were representative of those that must be met by a manager to successfully perform the essential functions of the job. Reasonable accommodations may have been made to enable individuals with disabilities to perform the essential job functions. Respondent Exhibit 12.
  27. The Complainant learned the Furniture department manager position’s description, qualification and requirements by taking the Computer Based Learning modules ("CBLs") and tutorials on the computer at the Respondent’s store, which he took one month after being in the position. Tr. 308-10; 312-3; 518-522.
  28. The Complainant was fully aware of the duties and responsibilities of the Furniture department manager position. Tr. 112 and 308.
  29. The Complainant possessed no sales floor experience prior to receiving his promotion to Furniture department manager. Tr. 456.
  30. The cashier position, which the Complainant held required the same mathematical skills (except for the ability to compute ratios and percentages) and the same basic reading/writing skills as the Furniture department manager’s requirements. Respondent Exhibit 12; 14.
  31. The Complainant counted items for inventory and could perform math. Tr. 126; 43.
  32. The Complainant also had held the position of stock person, which required the same basic reading and writing skills as the Furniture department manager’s position. Respondent Exhibit 15.
  33. In practice, the following were the typical duties of a Furniture department manager:
    • Arrive at work at 7:00 a.m.
    • Check their sales and how their department performed
    • Remove the freight from the pallets, which are on the floor and fill up the counters of shelves usually by 9:00 a.m.
    • Remove pallets from the floor and put them in the backroom and throw out all trash
    • Collect from their mailbox all of their paperwork which includes Point of Sale ("POS") review sheets that list merchandise that came directly from the supplier instead of on a Respondent truck and aid in keeping track of items in the store and items that need to be ordered
    • Compare the physical items in the store with the paperwork for accuracy
    • Scan the label of the items with a telxon and make any necessary changes
    • Make price changes

    Tr. 475-478; 482-486; 492-7; 505.

  35. The Complainant watched other managers performing their duties and received assistance from these managers to do certain aspects of his job. Tr. 327-329.
  36. The Complainant prepared for inventory by making certain that everything was out and labeled and that the overstock was labeled. Tr. 157.
  37. The Complainant put items on the shelf and other items in the back room. He also organized the shelves and ordered new items. Tr. 107-110; 112.
  38. The Complainant used a hand held device (telxon) which he called a scanner to "scan outs" which was ordering items. Tr. 112-118; 310.
  39. Mrs. Wolfson-Ruiz observed the following problems in the furniture department while the Complainant was the manager:
    • Late or incomplete paperwork regarding the turning in of POS order and return sheets;
    • Late price changes;
    • Fact tags (pieces of paper listing the item description, price and quantity) not matching; and
    • Freight left on the floor

    Tr. 500-512; 479.

  41. During his employment, the Complainant also had a difficult time communicating with customers and lifting things; he received help from co-workers. Tr. 330-332; Tr. 479.
  42. The Complainant missed deadlines and received oral warnings more than once a week during his time as the Furniture department manager. Tr. 395-6; 416.
  43. The Complainant knew what the "modules" as a job task were and received help in doing them. Tr. 328.
  44. The Complainant knew that "zoning" entailed keeping the department clean and organized but did not perform this function. Tr. 323-324.
  45. The Complainant received help with the paperwork in his work mailbox but did not know what the paperwork was. Tr. 327.
  46. The Complainant did not know the meaning of the term Store Within A Store, also known as SWAS. Tr. 313.
  47. The Complainant did not know what POS sheets were. Tr. 319.
  48. In March 1998, the Respondent demoted the Complainant to a sales associate position in the Housewares department and in April 1998, his pay was reduced to $7.11 an hour. Verified answer dated October 12, 1999; Joint Exhibit 1, Sf. 23; Tr. 167; 349.
  49. The demotion was not documented on an associate commendation form. Tr. 681.
  50. Approximately three weeks before demoting the Complainant, Mr. Leone had informed Complainant about problems with his modules, that is, the system of placing items in a modular home and making certain the description on the label matches where the item was placed on the shelf. This discussion was not documented. Tr. 335.
  51. The Respondent stated that the reason for the demotion was the Complainant’s performance and attendance. The Respondent did not make the discriminatory statement that he did not realize how disabled the Complainant was as one of the reasons for the demotion. Tr. 161-163; 169; 172; 684-685.
  52. No one witnessed any discriminatory statement made to the Complainant. Tr. 346; 356; 365.
  53. On March 27, 1998, after he was initially placed in the Housewares department, the Complainant was reassigned to a sales associate position in the Lawn and Garden department. Tr. 236-241; CHRO/Complainant Exhibit 10; Tr. 179-180.
  54. The Respondent uses a process called "Coaching for Improvement" to inform an associate when he is not meeting the requirements and expectations of his position. If an associate’s performance or conduct falls below the expectations of his or her supervisor, then the associate is informed of the problem and encouraged to take responsibility for his or her actions. Respondent Exhibit 10.
  55. In practice, the Coaching process consists of an initial verbal coaching, then a written coaching, possibly a second written and then final termination or some other permanent adverse action and all is conducted in a formal environment off of the sales floor. Tr. 460; 480; 400.
  56. Mrs. Wolfson-Ruiz repeatedly spoke to the Complainant in an informal setting (on the sales floor) about problems she observed that he was having in the furniture department. Mrs. Wolfson-Ruiz never coached or spoke to the Complainant in a formal setting (off of the sales floor) regarding those problems. Tr. 515-16.
  57. The Complainant never received the benefits of this coaching policy and therefore, was demoted contrary to the Respondent’s coaching policy. Respondent Exhibit 10.

V.     Discussion

Applicable Law

The Respondent has been charged with violating General Statutes § 46a-60(a)(1) and the ADA, when it demoted the Complainant to the position of sales associate. It is well established that Connecticut’s anti-discrimination statutes are coextensive with the federal law on this issue and therefore, this case will be analyzed using both the prevailing Connecticut and federal law. See Pik- Kwik Stores, Inc. v. Commission on Human Rights and Opportunities, 170 Conn. 327, 331 (1976). The state courts look to federal fair employment case law when interpreting Connecticut’s anti-discrimination statutes, but federal law should be used as a guide and not the end all for interpreting the statutes. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53 (1982); see also State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989).

The ADA provides that no covered entity "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to…the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). The ADA is similar to the Rehabilitation Act, 29 U.S.C. § 794, which forbids discrimination due to a handicap. As discussed in Grant v. Yale-New Haven Hospital, CHRO No. 9530477 dated October 13, 1999, (Hearing Referee Knishkowy), judicial interpretation of the Rehabilitation Act is applicable to cases brought under the ADA. Woodman v. Runyon, 132 F.3d 1330, 1339 n.8 (10th Cir. 1997).

As set forth in General Statutes § 46a-60(a)(1), "It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, … to discharge from employment any individual… because of the individual’s race, color,… or physical disability."

General Statutes § 46a-58(a) states in pertinent part: "It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of …color, race,… or physical disability."

In order for the Complainant to have a valid claim under the ADA or under the Connecticut Fair Employment Practices Act ("CFEPA"), General Statutes §§ 46a-51 et seq., the Complainant must first prove that he possesses a disability, which is an element in the Complainant’s prima facie case which is discussed, supra p. 24. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154 (2nd Cir. 1998); Zarzycki v. United Technologies Corp., 30 F. Supp.2d, 283, 286-87 (D.Conn. 1998). Once that is determined, the case must be further analyzed pursuant to the Price Waterhouse standard for overt/direct evidence discrimination dealing with mixed-motives, the McDonnell Douglas and Burdine model for discrimination based on disparate treatment, or both. Here, the Complainant and the Commission contend that there is evidence in the record to analyze this case under either standard. Joint Brief at 24.

According to the ADA and its implementing regulations, a person is considered disabled if she (1) has a physical or mental impairment which substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such impairment. 42 U.S.C. §§ 12102(2)(A) to (C); 29 C.F.R. §§ 1630.2(h) to (j); Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.CT. 2139, 2144 (1999); Bragdon v. Abbott, 524 U.S. 624, 631 (1998). The Respondent concedes that the Complainant suffers from a speech impediment that substantially limits the major life activity of speaking thus qualifies as a physical disability under the ADA and Connecticut law. Respondent Brief at 28, n.3. Therefore, there is no need to further analyze the Complainant’s disability.

Direct Evidence/Mixed-Motive Analysis

The direct evidence, or mixed-motive, approach was established in Price Waterhouse v. Hopkins, 490 U.S.228, 246 (1989); see Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 105-06 (1996). Pursuant to the Price Waterhouse standard, in a mixed-motive case, the Complainant must prove by a preponderance of the evidence that his physical disability of speech impediment played a motivating part or substantial role in the Respondent’s employment decision to demote the Complainant. Once that is proven, the Respondent may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the Complainant’s physical disability into account. Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989).

Direct evidence of disability discrimination is usually manifested by a statement made by persons involved in the decision making process that evinces discriminatory intent. Ostrowski v. Atlantic Mutual Ins. Co., 968 F.2d 171, 182 (2nd Cir. 1992); Wilson v. Gayfer Montgomery Fair Co., 953 F.Supp. 1415, 1420 (M.D. Ala. 1996). Direct evidence of discrimination "may include evidence of actions or remarks of the employer that reflect a discriminatory attitude… or [c]omments [that] demonstrate a discriminatory animus in the decisional process." Levy v. Commission, supra, 236 Conn. 110, citing Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). Statements or comments that are undisputed constitute direct evidence as in Price v. Waterhouse where the statement was admitted and Miko et al v. Commission on Human Rights and Opportunities, 220 Conn. 192, 206 (1991) where the statement was uncontroverted. Also, in Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2nd Cir. 1992) there was an unequivocal statement of intent constituting direct evidence of discriminatory motive ("I fired him because he was too old"). In Levy v. Commission, supra, 236 Conn. 101, the employer’s statement that the complainant was transferred "because of his hearing disability" was considered to be direct evidence.

Other examples of direct evidence include a company president’s planning documents stating that the company’s strengths included "young managers;" a decision maker’s comment that he would not hire blacks if it were his company; and a company president’s remark that older employees have problems adapting to changes and new policies. Reiff v. Interim Personnel, Inc., 906 F.Supp.1280, 1287-88 (D. Minn. 1995).

In the present case, the Complainant claims that the Respondent’s store manager, Mr. John Leone told the Complainant that he was demoting him because he didn’t realize how disabled the Complainant was. Tr. 169. This alleged statement is a statement by a decision maker (Mr. Leone) that shows discriminatory animus, but the Respondent’s witness, Mr. Leone, denies that he made this statement. Tr. 684-5. The direct evidence approach is generally inappropriate where the employer disputes what the employee claims to be the reason for the adverse employment action. Ennis v. Nat’l Ass’n of Business & Educational Radio, Inc., 53 F.3d 55, 57-58 (4th Cir. 1995). Even though the alleged statement is disputed, I could still find that it is direct evidence of discrimination if there is a substantial amount of supporting evidence that the statement was actually made and that evidence and testimony is credible. However, this is not the case here. At the time that the Complainant says the statement was made, no one was present and there is no other evidence to support that this statement was actually made. The only evidence presented to support that this statement was made is the Complainant’s testimony in which he contradicted himself. The Complainant testified at the factfinding on March 26, 1999, that a woman named Cindy Dodd was present when Mr. Leone allegedly made the statement that Complainant’s disability was the reason for the demotion. Tr. 169; 346; 356-8. At the Hearing, the Complainant testified that Cindy Dodd was not present and, in fact, that no one was present when the statement was made. Tr. 346. The Complainant later explained at the Hearing that he was mistaken at the factfinding and "had gotten the times mixed up when Cindy Dodd was present." Tr. 358; 365. Due to the fact that the Respondent disputes that this statement was ever made, the lack of evidence supporting this statement, and the Complainant’s inconsistent testimony regarding Cindy Dodd’s presence when the statement was made, I find that the alleged discriminatory statement was not made.

Nonetheless, for analytical purposes, if I believe the statement about his disability was made then the Complainant has met his initial burden under the mixed-motive/Price Waterhouse standard. The Respondent then must prove that it would have made the same employment decision absent the discriminatory reason. The Respondent asserts that the Complainant was not performing his job satisfactorily and that was one of the reasons for demoting the Complainant. Tr. 163.

There is overwhelming evidence in the record that the Complainant was not performing his duties satisfactorily. The Complainant, himself, testified that Mr. Leone spoke with him about problems with his modules. Tr. 335. Respondent’s witness, Mrs. Wolfson-Ruiz testified that she was the Complainant’s supervisor during the months of January through March 1998 and therefore observed his performance. Tr. 431-2. Mrs. Wolfson-Ruiz testified that the Complainant was having problems with getting freight off of the floor in a timely manner, with price changes, with fact tags, with completing paperwork and with keeping his department neat and clean. Tr. 481; 499; 503; 505; 509-10; 512; 514. The Respondent’s witness, Ms. Gilbert, testified that the Complainant missed deadlines. Tr. 394. The Respondent, as in Sutherland v. New York, 216 F.3d 1073 (2nd Cir. 2000) "produced substantial uncontradicted evidence that [Complainant’s] work was substandard." The Respondent’s witness, Mrs. Wolfson-Ruiz, testified that she spoke to the Complainant about these various problems. Tr. 515-16. The Complainant contends that the problems occurred after he was demoted. Joint Reply Brief at 5. I find Mrs. Wolfson-Ruiz’s and Ms. Gilbert’s testimony to be credible.

The evidence presented to rebut the Respondent’s position of the Complainant’s poor job performance is that the Complainant claims that Jerry Lancto told him he was performing well. Tr. 861. This statement was made before the Complainant took the Furniture department manager job. The Respondent’s witness, Jerry Lancto, testified that "[the Complainant] was a stock man at the time… and was doing a good job at what he was doing;" "he did a fine job for Wal-Mart and I recommended he have that promotion." Tr. 861. Mr. Lancto testified that he did not recall observing the Complainant’s performance as the Furniture department manager and therefore did not testify that he told the Complainant he was doing a good job while as the Furniture department manager. Tr. 865. I find Mr. Lancto’s testimony to be credible. Also, the Complainant contends that the Respondent has not been truthful because if his performance was unsatisfactory then he would have been written up on coaching forms. Joint Brief at 36. The fact that the Respondent failed to document the Complainant’s poor job performance does not negate that the Complainant was not performing the job to satisfy the Respondent’s expectations.

The Complainant attempts to call into question the accuracy and veracity of Respondent’s evidence. This is done in an attempt to draw attention away from his own questionable testimony. The Complainant does not recall much of what occurred during his employment as a Furniture department manager with the Respondent and there were at least four incidents in which the Complainant contradicted his testimony. As already mentioned, see supra, p.20, the Complainant made inconsistent statements regarding the presence of Cindy Dodd at the time of the alleged discriminatory statement. In addition, the Complainant, initially, testified on cross examination that he did not keep a journal and, to add to his lack of veracity, when asked about the journal he acted as if he didn’t even know what one was. Tr. 253. The Complainant testified in response to whether or not he kept a journal during his employment with Respondent, "what do you mean?, like what?" Tr. 253. Then on redirect examination when confronted with his testimony at the factfinding, the Complainant tried to explain that he did have a journal but it was lost and his memory was refreshed when the Respondent’s attorney introduced the factfinding testimony that the Complainant kept a journal. Tr. 359; 363-5. The Complainant testified at first during cross-examination that he did not consider his disability to be a "small" speech problem. Tr. 275-279. The Respondent introduced evidence that the Complainant at an earlier time wrote in a letter that his speech problem was a "small" problem. Tr. 276. At the hearing, the Complainant would have had me believe that his disability is severe when he wanted his employer to believe it was not. These examples lead me to question the Complainant’s credibility.

Also, the Complainant testified on direct examination that he did not remember whether Mr. Leone ever told him about performance problems. When asked a second time, he answered, "not that I know of," but he later testified that Mr. Leone informed him that his modules were set up incorrectly about three weeks prior to the demotion. Tr. 334; 336. The Complainant and the Commission contend that Mr. Leone, chose to remember or forget whenever it seemed convenient. See Joint Reply Brief at 11. But this appears to be more the case for the Complainant himself, when he repeatedly testified, "I don’t know" and "I don’t remember" when it came to very important evidence in his case. When asked whether he applied for other jobs after the demotion and if he told anyone about being discriminated against, the Complainant testified on numerous occasions with "I don’t know." Tr. 345-348. Throughout the Complainant’s testimony, the Complainant was not able to recall important facts and circumstances of his job. The Complainant testified that he did not remember what he observed when learning his Furniture department manager job. Tr. 253. The Complainant did not possess enough knowledge regarding the aspects of his job. Tr. 312-320. These and other questions asked were material to Complainant’s case and therefore, I was not provided with valuable information.

All of these aforementioned incidents lessen the Complainant’s credibility. Due to the Complainant’s inconsistent testimony and minimal evidence of satisfactory job performance, I do not believe that the Complainant has rebutted Respondent’s evidence of poor job performance or provided any evidence to show that he was performing his job satisfactorily. Therefore, the Respondent met its burden by producing evidence that it would have made the same decision had it not made that discriminatory remark.

Disparate Treatment Analysis

When there is no evidence of a direct discriminatory statement, the McDonnell Douglas/Burdine model for disparate treatment is applied. The indirect evidence/disparate treatment approach was articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and further refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981) and St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993). The burden shifting scheme of McDonnell Douglas applies to the ADA and CFEPA. Sutherland v. New York, 216 F.3d 1073 (2nd Cir. 2000); Ann Howard’s Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 225 (1996); Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 203 (1991). In order to make out a prima facie case of a discriminatory adverse employment action under the ADA, the Complainant must prove that: (1) the employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability. Millane v. Becton, 84 F.Supp.2d 282, 285 (D.Conn. 1999) citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2nd Cir. 1998). The Connecticut courts and this tribunal follow the same analysis with the exception of having to meet the ADA requirements for cases brought under CFEPA. Miko v. Commission, supra, 220 Conn. 203 (1991); Ann Howard’s Apricots Restaurant, Inc. v. CHRO, supra, 237 Conn. 225 (1996).

The Respondent is an employer that employs three or more employees subject to the CFEPA and an employer that employs fifteen or more employees subject to the ADA. Complaint affidavit; Verified answer dated October 12, 1999. The Respondent has conceded that the Complainant is physically disabled under the ADA and CFEPA due to his speech impediment as previously discussed in this decision, see supra p. 18. The Complainant suffered an adverse employment action when the Respondent demoted him from Furniture department manager to sales associate, and decreased his pay by $1.50 an hour. CHRO/Complainant Exhibit 10. Mr. Leone stated in a verified and sworn answer that the Respondent demoted the Complainant on or about March 27, 1998, and his pay was reduced later. Verified answer dated October 12, 1999. This statement is consistent with the Respondent’s original answer dated August 14, 1998. Mr. Leone attempted to deviate from this position by testifying at the Hearing that the Complainant "voluntarily stepped down" from his position as Furniture department manager. The Respondent contends that Mr. Leone discussed problems that the Complainant was having in his position with the Complainant that resulted in the Complainant agreeing to take a sales associate position with lower pay. Tr. 680. This position at the Hearing was totally inconsistent with his prior sworn statement filed October 12, 1999, (Verified answer), that the Respondent demoted the Complainant without including any statement or discussion of the Complainant "voluntarily stepping down." The Respondent had ample opportunity to include in its sworn answer of October 12, 1999, that its position was that the Complainant "voluntarily stepped down" and/or include it in its special defenses, but it did neither. In addition, Mr. Leone testified on cross examination that he didn’t know if he demoted the Complainant or if the Complainant suggested it. Mr. Leon stated "I don’t recall". Tr. 720. In Carlton v. Mystic Transportation 202 F. 3d 129, 137 (2nd Cir. 2000), the defendant responded to the EEOC’s complaint with only one reason for firing the plaintiff but then later in interrogatory responses and depositions for court proceedings stated a different reason. The court concluded that the Respondent lacked veracity. Similarly, I believe that Mr. Leone’s testimony lacks credibility and therefore, he actually demoted the Complainant. In addition, the Respondent admitted that it demoted the Complainant in Joint Exhibit 1, Sf. 23.

The Commission and the Complainant took objection to my ruling at the Hearing to exclude the rebuttal testimony of the Commission’s investigator and Mr. Leone to further support their position that the Complainant was demoted. Joint Reply Brief at 12, n.3. "Rebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case…" State v. Cepeda, 51 Conn. App. 409, 439 (1999) citing State v. Williamson, 206 Conn. 685, 698, (1988). Their testimony would have been redundant and therefore a waste of time being that the evidence was already admitted through other witnesses’ testimony and documentary evidence. General Statutes § 4-178; see also Complainant/CHRO Exhibit 35; Verified answer dated October 12, 1999; Joint Exhibit 1, Sf. 23; Tr. 680; 720.

Qualified for the Position

The deciding factor is whether the Complainant was qualified to perform the essential functions of the Furniture department manager job with or without reasonable accommodations. As part of the Complainant’s prima facie case, the Complainant must show that he was a qualified individual with a disability, as that phrase is defined by the ADA, at the time of the adverse employment action. Cousins v. Howell Corp.,No. 3:98CV1945 (GLG), 2000 WL 1375585 *7(D.Conn. Sept. 22, 2000.), citing Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir. 1998). The regulations set forth a two-pronged test that must be applied. First, plaintiff must have the requisite skill, experience, education, and other job-related requirements of the job. 29 C.F.R. § 1630.2(m). Second, the plaintiff must show that he can perform the essential elements of the position with or without reasonable accommodation. 29 C.F.R. §1630.2(m); Cousins, supra, 2000 WL 1375585 (D.Conn.Sept.22, 2000) at 7; Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2nd Cir. 1998); D’Amico v. city of New York, 132 F.3d 145, 149 (2nd Cir.), cert. denied, 524 U.S. 911 (1998). In Cole v. Millard 116 F. 3d 465 (2d Cir. 1997), satisfactory performance is performing the job at a level which meets legitimate expectations of the employer. The Complainant must show that he was satisfactorily performing the job at the time of the demotion in order to prove that he was "qualified for the position." Cole, supra, 116 F.3d 465, citing Thornley v. Penton 104 F.3d 26, 29 (2nd Cir. 1997).

First, in order to determine if the Complainant had the requisite skill, experience and education for the job, I must look to the job description provided by the Respondent and stipulated to by the Complainant and the Commission and any other evidence provided. The Respondent testified that the Furniture department manager position’s description was on the CBLs. Tr. 516-519. The Complainant and the Commission assert that the Complainant was not given a job description before or after his promotion (Joint Brief at 7,Proposed findings of fact 29), but the Complainant admitted that the job requirements of the department manager position were on the computer and he took those CBLs within one month after the start of his Furniture department manager position. Tr. 308-10. Therefore, the Complainant was aware of his duties as a Furniture department manager. Tr.112; 308. The Furniture department manager job description states "the qualification requirements to perform the job successfully, an individual must be able to perform each essential duty satisfactorily." Respondent Exhibit 12. Those essential duties are listed extensively in the fact findings ("Ff.") 19a-d, see supra p. 6; Respondent Exhibit 12. The qualification requirements that are representative of the knowledge, skill and/or ability required are also listed. Ff. 21-24. These are 1) mathematical skills: ability to add, subtract, multiply, and divide in all units of measure, using whole numbers, common fractions, and decimals and the ability to compute ratio [sic] and percent [sic]; 2) basic reading/writing skills: ability to understand the meaning of written or printed matter and to record information by inscribing characters or symbols; 3) certificates, licenses, and registrations: the associate must complete all the Respondent’s basic and advanced training modules and classes. The Respondent’s witness, Mrs. Wolfson-Ruiz also testified that sales floor experience is desired. Tr. 455; 627.

The Complainant held the position of cashier (Joint Exhibit 1, Sf. 15), which required the same mathematical skills (except for the ability to compute ratio [sic] and percent [sic]) and the same basic reading/writing skills as the Furniture department manager’s requirements. Respondent Exhibit 12; 14. In addition, the Complainant testified that he counted items for inventory and could perform math, but did not state whether he could compute ratios or percentages. Tr. 126; 43. The Complainant also held the position of stock person, which required the same basic reading/writing skills. Respondent Exhibit 15. The Complainant did testify that he completed the Respondent’s CBLs, but there is no evidence in the record to determine if those were the basic and/or advanced training modules and classes. I find that he did complete all CBLs and conclude, absent evidence to the contrary, that they were both basic and advanced. I do not find that sales floor experience was a required skill or experience since it is not mentioned on the Furniture department manager description under qualifications; at most, it was desired by the Respondent, as testified to by Mrs. Wolfson-Ruiz. Therefore, I do not consider this a skill necessary for the Complainant to possess for the Furniture department manager position. Hence, of the requisite skills, education and experience listed by the Respondent, the Complainant possessed all but the ability to compute ratios and percentages. Due to the fact that the Complainant did not possess the ability to compute ratios and percentages, he did not possess all of the skills necessary for the position.

Nevertheless, I find that the Respondent believed that the Complainant met the skills, education and experience level required since the Respondent promoted the Complainant to the position and more importantly, admits in its brief that it took responsibility for the problems that the Complainant had as a Furniture department manager because it promoted Complainant to the position too soon without sales floor experience. Respondent Reply Brief at 10,n.10. Thus, the Respondent has waived this part of the two-part test and I find that the Complainant has met this first part.

Therefore, I will next determine whether the Complainant could perform the essential elements of the Furniture department manager position with or without reasonable accommodations based on the "primary responsibilities" listed in the department manager description and the Respondent’s explanation of how the job is done in practice. Ff. 32;Respondent Exhibit 12; Tr. 475-505; See Borkowski v. Valley Central, 63 F.3d 131, 137 (2nd Cir.1995). Respondent’s Exhibit 12 lists in detail the job description and responsibilities of the Furniture department manager position. Ff. 19a-d. Also, Respondent’s witness, Mrs. Wolfson-Ruiz articulated the duties of the Furniture department manager as it is done in practice. Ff. 32; Tr. 475-509. When asked what his day-to day tasks were, the Complainant explained that his job as manager consisted literally of "I put stuff on shelf; and put stuff don’t fit, put in the back room;" "I organized the shelves; I had to order new stuff;" Tr. 107-110; 112. Then there was some discussion about the telxon used to order items and scanned outs. Tr. 112-118. The Complainant also testified that he had to "Do a lot of stuff" to get ready for inventory and that meant "counting items" and "get items from the back room." Tr. 126. On cross examination, the Complainant testified that he received help in doing modules and did explain what they were. Tr. 328. Also, on cross examination the Respondent’s attorney asked the Complainant if he knew what "zoning" was. Tr. 323. The Complainant testified in response that it was making sure aisles are clear, not hanging over and it involved sweeping, but he did not testify as to actually performing this function. Tr. 324. On cross examination, the Complainant testified that he received help with the paperwork which came in his work mailbox but did not remember what type of paperwork. Tr. 327. The Complainant testified on cross examination that he did not remember the meaning of the phrase Store Within A Store, also known as SWAS. Tr. 313; Ff. 19c. When the Respondent’s attorney asked the Complainant what a POS sheet was used for, the Complainant testified in response, "I have no idea." Tr. 319; Ff. 32. Compared to the department manager description which lists forty-one (41) duties under four (4) Primary Responsibilities, (Respondent Exhibit 12) and Ms. Wolfson-Ruiz’s testimony of the practical duties (Ff. 32), the Complainant’s testimony of his duties and responsibilities in no way mirrors or even meets a minimal degree of what the Respondent expected of its department managers.

The Complainant did not bother to prove this prong of his prima facie case that he was qualified other than to argue that he was qualified because he was promoted to the position, because Mr. Leone stated "he deserved it", and because Mr. Lancto stated "he did a fine job for Wal-Mart and I recommended he have [the position of department manager]." Joint Brief at 32. The conclusory statement that he was qualified is not the criteria for proving a complainant’s qualifications for a job. The Complainant contends that Jerry Lancto told him that he was doing a good job, but as mentioned earlier, this statement was made prior to the Complainant receiving the promotion. The Complainant also propounds that the poor performance that the Respondent’s witnesses were noticing occurred after the Complainant was already demoted, but even if that were true, the Complainant still would have to first prove his prima facie case by showing that he was at least qualified before I could consider Respondent’s reason of poor performance under McDonnell Douglas.

I fully understand that Complainant had difficulties testifying while speaking at the Hearing. However, that in no way restricted the Complainant’s attorney or the Commission counsel from inquiring about each and every duty, responsibility and qualification required by the Respondent as stated by Respondent’s witness, Mrs. Wolfson-Ruiz, and as listed in Respondent Exhibit 12. The Complainant’s attorney did ask about a few of the duties, responsibilities and qualifications but not enough evidence was given to prove that the Complainant was qualified by satisfactorily performing the essential functions of the Furniture department manager position with or without reasonable accommodations.

Reasonable Accommodation

The Complainant bears the burden to prove that a reasonable accommodation existed that would have allowed him to perform the essential functions of his job. Borkowski v. Valley Central, supra, 63 F.3d 138-39. There is no evidence in the record showing that the Complainant requested a reasonable accommodation for his speech impediment. The Complainant did not engage the Respondent in any dialogue regarding a reasonable accommodation that would have accommodated his speech impediment to assist him in performing the essential functions of his job. In fact, when the Respondent determined that the Complainant was not successfully performing the essential duties of his job, it demoted him to a position it believed the Complainant could perform and which would allow him to acquire the skills the Complainant was lacking.

The Respondent had actually accommodated each request unrelated to the Complainant’s disability that the Complainant made during his employment. The Respondent in many ways during the Complainant’s employment treated him in a positive manner. The Complainant received four promotions and pay increases in a six month period. Ff. 9-11;16. The Complainant received an "Employee of the day" award in June 1997 and an "Employee of the month" award in August 1997. Tr. 282-3. When the Complainant complained about working as a stock person outside in the cold weather, the Respondent gave him a cashier position inside with a pay increase. Joint Exhibit 1, Sf. 15. The Respondent approved the Complainant’s week vacation for his bowling trip. Tr. 149. The Respondent promoted the Complainant when he consistently asked for the Furniture department manager position. Tr. 75-78; 87-88. When the Complainant had trouble lifting the freight from the floor, which was a physical demand of the position (Ff. 25), his supervisor would accommodate him by finding someone to assist him in lifting and other department managers assisted the Complainant with his paperwork duties and communicating with others. Tr. 327-332; 479-480.

VI.     Summary

The Complainant was entitled to comparable treatment in that he should have been formally coached and written up, but again, according to Connecticut case law he has to first prove that he was qualified for the position under the disparate treatment analysis or rebut the Respondent’s reason for demoting him under the direct evidence approach which he did neither. The Complainant has not shown that he performed the duties and responsibilities of his job satisfactorily in order to be qualified or otherwise. In Carlton, supra, 202 F.3d 137, there also were no written warnings as in the present case, but the plaintiff had presented evidence that he was performing satisfactorily. Similarly in Morris v. Tritown Teachers Federal Credit Union, No. CV980354839S, 2000 WL 1058882, (Conn Super. July 13, 2000), where the plaintiff failed to submit evidence that showed she was able to perform her duties, here, the Complainant presented little evidence of satisfactory job performance. No one other than the Complainant testified on his behalf regarding his qualifications for the Furniture department manager position. The Complainant did not present adequate evidence that he was performing all of his job duties satisfactorily other than his own testimony of what he did which as mentioned earlier was brought into question due to the list of inconsistent testimonies, contradictions, and vagueness. Not once did the Complainant explain in detail all of his own duties and responsibilities as a Furniture department manager nor did his attorney or Commission counsel elicit the information for him. In fact, the Complainant even admitted to not knowing some of the elements of his job. This does not nearly meet the standard for proving that he was performing his job’s essential functions in a satisfactory manner. If anything, this proved that he barely did 1/8 of the duties and responsibilities. Unlike other cases such as Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 92 (2nd Cir. 1996) where the failure to coach was discriminatory but the plaintiff showed that she was adequate in job performance, here the Complainant made no showing. Also, in Sutera v. Schering Corp. 73 F.3d 13, 16 (2nd Cir. 1995), where the complainants showed that they had experience and were performing their job satisfactorily, here, there is no such showing.

In the present case, the Complainant received the position because of his past positive performance history in other positions with the Respondent, but that does not automatically validate his performance while in the new position of the Furniture department manager. The Complainant has not proven a prima facie case under McDonnell Douglas due to the lack of evidence proving the third prong of the prima facie case that he was qualified to perform the essential functions of his job with or without reasonable accommodation. If the Complainant had met his burden, the burden then would have shifted to the Respondent to produce a legitimate business reason for demoting the Complainant. The legitimate business reason already proffered by the Respondent was that the Complainant had performance and attendance problems. The Complainant next would have to prove these reasons to be false in order to prove pretext. This analysis beneficially was discussed in this decision under the mixed-motive standard and during this summary, see supra pp., 18; 34. As in Morris v. Tritown, supra,7,n.5, where the court reasoned that "the essence of this factor is dispositive of plaintiff’s discrimination claim, the court need not analyze the remaining elements of plaintiff’s prima facie case nor delve into the defendant’s proffered reason for discharge nor examine pretext." There is no need to analyze this further under the McDonnell Douglas model because the Complainant did not meet his prima facie burden.

VII.     Order

Therefore, in accordance with the provisions of General Statutes § 46a-86, the complaint is hereby DISMISSED and an ORDER is entered in favor of the Respondent.

Dated this _______ day of January 2001 at the Office of Public Hearings, 21 Grand Street, Hartford, Connecticut.

The Honorable Donna Maria Wilkerson
Presiding Human Rights Referee

C:
Joanne V. Yandow, Assistant Commission Counsel II
Attorney Mark D. Soycher
Jeffrey T. Clark
Attorney Gregory B. Reilly
Canetta Ivy, Corporate Counsel, Wal-Mart Stores, Inc.
Atty. Raymond Peck, Deputy Commission Counsel
Ann Galer-Pasternak, Public Hearing Administrator