McWeeny v. City of Hartford et al - 0410314, Final Decision

CHRO No. 0410314

Fed No. n/a

Commission on Human Rights and Opportunities ex rel. :
Robert F. McWeeny, Complainant

v.

City of Hartford, et al., Respondents

August 2, 2005

FINAL DECISION

I. Parties

The parties to this action are: (1) Robert F. McWeeny ("complainant") of Farmington, Connecticut, represented by Attorney Leon M. Rosenblatt; (2) the City of Hartford, its Municipal Employees' Retirement Fund and its Pension Commission ("respondents"), represented by Attorney Denise E. Aguilera, Assistant Corporation Counsel for the City of Hartford and (3) the Commission on Human Rights and Opportunities ("commission"), represented by Attorney Robert J. Brothers, Jr., Assistant Commission Counsel II.

II. Summary

The complainant filed his Affidavit of Illegal Discrimination ("complaint") on February 11, 2004. In his complaint, he alleged that the respondents violated General Statutes § 46a-60(a)(1) by discriminating against him on the basis of his marital status when he was denied benefits on or about October 1, 2003 and continuing to the present. The respondents filed an answer denying that they had discriminated against the complainant. After a preliminary investigation, the commission's investigator determined that there was reasonable cause to believe that the respondents had committed an unfair practice and, on September 29, 2004, the complaint was certified to the commission's executive director and to the attorney general. The public hearing was held on May 16, 2005. Briefs were due on July 14, 2005, at which time the record closed.

For the reasons set forth herein, the complaint is dismissed.

III. Issues and parties' positions

The parties agree that the key issue is whether the complainant has standing to bring this complaint. (Transcript page ["Tr."] 9.) In other words, can the complainant (a surviving spouse who was never employed by the respondents) maintain and prevail on a claim of employment discrimination against respondents who did not commit an illegal discriminatory employment practice against the employed spouse?

According to the complainant, he was married to H. Maria Cone ("Cone"), a retired employee of the respondent City of Hartford. At the time of her death in March 1999, Cone had been receiving pension benefits from the respondents. When she died, the respondents began paying the complainant, as her surviving spouse, a monthly survivor's allowance. In September 2003, the complainant remarried and, because of his remarriage, the respondents terminated the payments. The complainant argued that the respondents' termination of the surviving spouse allowance because of his remarriage (marital status) is a discriminatory act that violates § 46a-60(a)(1). (Tr. 4-5.)

The respondents argued that because the complainant was never in an employment relationship with them and cannot show that they ever interfered with his employment opportunities with third parties, he does not have standing to bring this complaint. (Tr. 11.)

IV. Findings of fact

References to an exhibit are by party designation and number. The commission's exhibits are denoted as "CHRO Ex" followed by the exhibit number; and the respondents' exhibits are denoted as "R Ex" followed by the exhibit number. The complainant did not proffer any exhibits.

Based upon a review of the pleadings, exhibits, testimony and transcripts, and an assessment of the credibility of the witnesses, the following facts relevant to this decision are found:

V. Analysis

A.

In paragraph 10 of the complaint, the complainant alleged: "The Connecticut Fair Employment Act § 46a-60(a)(1) prohibits discrimination in employment because of marital status." Section 46a-60 provides in part that "(a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's … marital status …."

In paragraph 11 of his complaint, the complainant alleged that he is "a person claiming to be aggrieved by an alleged discriminatory practice, as those terms are used in Conn. Gen. Stat. § 46a-82(a) et seq." Section 46a-82(a) provides in part that: "Any person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of section 46a-68, may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission."

"Discriminatory practice" and "person" are defined in General Statutes § 46a-51. Section 46a-51 provides in relevant part that: "As used in section 4a-60a and this chapter: …(8) 'Discriminatory practice' means a violation of section 4a-60, 4a-60a, 46a-58, 46a-59, 46a-60, 46a-64, 46a-64c, 46a-66, 46a-68, sections 46a-70 to 46a-78, inclusive, subsection (a) of section 46a-80, or sections 46a-81b to 46a-81o, inclusive; … (14) 'Person' means one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, receivers and the state and all political subdivisions and agencies thereof; …."

Thus, for purposes of this complaint, the complainant is aggrieved under § 46a-82(a) if the respondents engaged in conduct that violated § 46a-60(a)(1). However, for conduct to constitute an illegal discriminatory employment practice under § 46a-60(a)(1), "[e]mployee status is an obvious prerequisite to maintaining a complaint of employment discrimination." (Citation omitted.) Merola v. Commission on Human Rights and Opportunities, 1997 Conn. Super. LEXIS 3326, 10. Employee status arises when a complainant is employed by the respondent, sought employment with the respondent, is discharged by the respondent or is barred by the respondent from employment with it. § 46a-60(a)(1). A former employee is also within the statute's coverage. Robinson v. Shell Oil Company, 519 U.S. 337, 346 (1997). Employee status may also arise if a respondent engaged in conduct that interfered with a complainant's opportunity to obtain employment with a third party (another employer). The Association of Mexican-American Educators v. State of California, 231 F.3d 572, 580 (9th Cir. 2000).

In this case, the complainant is not a current or former employee of the respondents (FF 14). He has never applied for employment with the respondents (FF 15). The respondents have never barred or terminated him from employment and have never interfered with his current, past or prospective employment opportunities (FF 16, 17). Thus, the complainant does not and never had employee status with the respondents and, therefore, he does not have the prerequisite status to maintain or prevail in an action under § 46a-60(a)(1).

In their joint brief ("Brief"), the commission and the complainant argue that the complainant is classically aggrieved because there is a possibility that some legally protected interest has been adversely affected by the respondents' actions. (Brief, 4-6.) However, since employee status is a prerequisite to maintaining an employment discrimination complaint and since the complainant does not have employee status with any of the respondents (FF 14-17), there is no possibility that he has a legally protected interest that was adversely affected by the respondents' action and, therefore, he is not classically aggrieved.

The commission's and the complainant's reliance on Gay and Lesbian Law Students Association v. Board of Trustees, 236 Conn. 453 (1996) in support of their claim of aggrievement is misplaced. Pivotal to the court's determination that the student organization was aggrieved and had standing was the impact of the law school's accommodation of the military recruiters on the students' employment opportunities. The court noted that the Association's "members had been denied equal placement opportunities because the career serves office had allocated resources to the military, which would not, regardless of their abilities and talents, hire them. …. That conduct has created a lack of equal access to the office of career services and has caused some of the plaintiff's members to reevaluate their approaches to the career services department." Id., 466-67. Again, "the trial court found that the 'assistance in securing employment is one of the most important services that the law school provides' and that by allowing an organization that discriminates against gay and lesbian students to use its facilities and services, the law school contributed to such students having 'fewer placement opportunities than heterosexual students.'" Id., 469. And again, "the relevant question [of whether there is aggrievement] is whether the members are receiving the same placement opportunities as heterosexual students." Id., 469-70. In other words, the court found that the Association was aggrieved and had standing because the law school's accommodation of military recruiters adversely interfered with the prospective employment opportunities of gay and lesbian students. Unlike that situation, in the present case the respondents have never interfered with the complainant's current, past or prospective employment opportunities (FF 17).

The consequences of expanding the universe of potential claimants to include individuals without employee status would lead to an absurd or unworkable result. If aggrievement simply consists of economic loss from some employer's actions, then (contrary to existing Connecticut case law) independent contractors would be aggrieved if they were not retained because of their race, age, sex or other protected basis. Family members of a parent or spouse who was terminated, not hired or denied a promotion could also be aggrieved. Likewise, surviving adult children who might have obtained benefits from a deceased parent's employer had they been minor children at the time of their parent's death would have age discrimination claims.

One might argue that if the legislature wanted to limit § 46a-82(a) to employees the section could have read "Any employee claiming to be aggrieved by an alleged discriminatory practice …." The difficulty with this argument, however, is that the statutory definition of "discriminatory practice" is not limited to employment; the definition [§ 46a-51(8)] also includes discriminatory public accommodation practices, discriminatory housing practices, and discriminatory credit practices. Hence, the use of "any person" is simply for grammatical consistency with the statutory definition of "discriminatory practice".

B.

1.

The commission and the complainant argue that federal law supports their expansive version that aggrievement and standing do not require employee status. The case law they cite, however, does not support their position. The common fact situation throughout their cases is that an employee status relationship must exist for a complainant to maintain a complaint of a discriminatory employment practice. Such a fact situation does not exist in this complaint (FF 14-17).

The commission and the complainant quote Hackett v. McGuire Brothers, Inc., 445 F.2d 442, 445 (3rd Cir. 1971): "To be a proper Title VII claimant, all that is required is that the claimant be a 'person claiming to be aggrieved … A person claiming to be aggrieved may never have been an employee of the defendant.'" (Brief, 9.) However, the very next sentence of the Hackett decision proceeds: "Indeed the Act forbids discrimination not only by employers, 42 U.S.C. 2000e-2(a)(2), but also by potential employers, 42 U.S.C. 2000e-2(a)(1), by labor organizations, 42 U.S.C. 2000e-2(c), and by employment agencies, 42 U.S.C. 2000e-2(b)." Hackett v. McGuire Brothers, supra, 445 F.2d 445. In this case, the complainant was not discriminated against by his own employer, by a potential employer, by his labor organization, or by an employment agency. (Also worth noting, in Hackett, unlike this case, the plaintiff had at one time been employed by the defendant.)

The commission and the complainant argue that an employment relationship between the complainant and the respondents is not a prerequisite for a finding of liability. (Brief, 7-11). In support thereof, they cite The Association of Mexican-American Educators v. State of California, 231 F.3d 572 (9th Cir. 2000), Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000) and Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973). However, a fair reading of these cases indicates that the existence of an employee status relationship, specifically the ability of the defendants to interfere in the employment opportunities of the plaintiffs, was vital to the courts in their analysis.

The plaintiffs in Association of Mexican-American Educators were teachers and prospective teachers in California challenging the state's skills test ("CBEST"), which was a prerequisite to employment in a variety of positions in the state's local public schools. The plaintiffs claimed that CBEST had an adverse impact on minority candidates. Association of Mexican-American Educators v. California, supra, 231 F.3d 577-78. According to the court: "A direct employment relationship is not a prerequisite to Title VII liability. Although there must be some connection with an employment relationship for Title VII protections to apply, that connection with employment need not necessarily be direct. Among other things, we have held that an entity that is not the direct employer of a Title VII plaintiff nevertheless may be liable if it interferes with an individual's employment opportunities with another employer." (Emphasis added.) (Internal quotation marks omitted; citations omitted.) Id., 580. In finding that these plaintiffs had Title VII protection, the court noted: "Against that background of 'plenary' state control, we have no difficulty concluding that the State of California is in a theoretical and practical position to 'interfere' with the employment decisions of local school districts. And by requiring, formulating, and administering the CBEST, the state has 'interfered' to a degree sufficient to bring it within the reach of Title VII." (Emphasis in original.) Id., 582.

The commission and the complainant also cite Kyles v. J.K. Guardian Security Services, Inc., supra, 222 F.3d 289, which found that "employment testers" had standing to bring a Title VII complaint even though they had no intention of actually accepting the job they were applying for if it were offered. (Brief, pp. 7-8.) Kyles involved two African-Americans working for the Legal Assistance Foundation of Chicago. They were paired with white testers. The plaintiffs and their white co-testers were provided with fictitious comparable credentials, trained to interview similarly, and then sent to apply for employment with the same employer. When it appeared that an employer engaged in discrimination, the non-white testers who were rejected for employment could then pursue administrative and judicial remedies. Kyles v. J.K. Guardian Security Services, Inc., supra, 222 F.3d 292. The Seventh Circuit concluded that standing under Title VII extended to the full limits of standing under Article III of the U.S. Constitution. Id., 295. According to the commission and the complainant: "Once it is seen that standing in antidiscrimination cases is co-extensive with the reach of Article III standing, the claim that there are any other standing requirements simply disappears. A person who is classically aggrieved - - as it has already been shown Mr. McWeeny is - - has standing because he presents an Article III case or controversy. There are no other standing requirements to be satisfied, and the individual claimant's relationship to the respondent - - whether he ever worked for the respondent or the respondent's principal - - is completely irrelevant." (Brief, 8.)

However, it is clear from the plain language of the court's analysis in Kyles that an employment relationship is not irrelevant. In determining that employment testers had standing, the Seventh Circuit noted: "When a job applicant is not considered for a job simply because she is African-American, she has been limited, segregated or classified in a way that would tend to deprive not only her, but any other individual who happens to be a person of color, of employment opportunities." (Emphasis added.) Kyles v. J.K. Guardian Security Services, Inc., supra, 222 F.3d 298. Again, "as we noted at the outset of our analysis, the statute proscribes employment practices which 'in any way … would deprive or tend to deprive any individual of employment opportunities,' §2000e-2(a)(2) …." (Emphasis added.) Id., 300. And again, "Title VII takes aim at a wide range of racially discriminatory practices which, among other things, either 'deprive or tend to deprive any individual of employment opportunities …' 42 U.S.C. § 2000e-2(a)(2) (emphasis supplied)." Id., 303. And again, "Title VII thus creates a substantive and enforceable right to be free from any attempt 'to limit, segregate, or classify' applicants for employment on the basis of race in a way that might tend to deprive the applicant, or any individual, of employment opportunities." (Emphasis added.) (Internal quotation marks omitted; citations omitted.) Id. For the Seventh Circuit, the defendants' interference in the plaintiff's employment opportunities is the essential underpinning to a finding of Title VII liability.

The complainant and the commission further cite Sibley Memorial Hospital v. Wilson, supra, 488 F.2d 1338 for their proposition that a direct employment relationship is not required for a complainant to have aggrievement and standing. (Brief, 9-10.) The gravamen of that case, though, is that liability attaches to a respondent that "discriminatorily interfer[es] with an individual's employment opportunities with another employer … ." Sibley Memorial Hospital v. Wilson, supra, 488 F.2d 1341.

Critically important to the courts in Association of Mexican-American Educators, Kyles and Sibley was the defendants' ability to interfere with the employment opportunities of the plaintiffs. Unlike the situation in those cases, however, in the present case these respondents have never interfered with this complainant's current, past or prospective employment opportunities (FF 17).

According to the commission and the complainant, the U.S. Supreme Court, in Robinson v. Shell Oil Company, 519 U.S. 337, 345 (1997), "noted that the term 'individual' in Title VII denotes people 'who have never had an employment relationship with the employer at issue.'" (Brief, 10.) However, the court further noted that "the use of the term 'individual' in § 704(a), as well as in § 703(a), 42 U.S.C. § 2000e-2(a), provides no meaningful assistance in resolving this case. To be sure, 'individual' is a broader term than 'employee' and would facially seem to cover a former employee. But it would also encompass a present employee as well as other persons who have never had an employment relationship with the employer at issue. The term 'individual,' therefore, does not seem designed to capture former employees, as distinct from current employees, and its use provides no insight into whether the term 'employees' is limited only to current employees." Robinson v. Shell Oil Company, supra, 519 U.S. 345. Actually, the court went on to "hold that former employees are included within § 704(a)'s coverage." Id., 346. Unlike that case, in the present matter the complainant is not a former employee of any of the respondents (FF 14).

The commission and the complainant reference Transport Workers Union of America, Local 100, AFL-CIO v. New York City Transit Authority, 342 F. Sup.2d 160 (S.D.N.Y. 2004) for the proposition that because Titles I and II of the Americans with Disabilities Act do not impose a statutory standing requirement, such a requirement ought not to be read into § 46a-60(a)(1). (Brief, 10-11.) However, it is important to note why the court found that the plaintiffs-unions had standing under Article III. In finding that the unions had independent standing, the court noted the harm to the unions in "the expenditure of resources while representing employees in grievance and arbitration hearings regarding [the defendants' allegedly discriminatory] sick leave …." Transit Workers Union of America, Local 100 v. New York City Transit Authority, supra, 342 F. Sup.2d 167. "Because the Unions' constituents are employees of the Authority subject to the sick leave policy, they have [associational] standing to sue." Id., 168. In other words, the unions' standing rights arose from protesting the defendants' underlying discriminatory employment practices directed at the defendants' employees (who happened also to be union members). Unlike that situation, in the present case there is no evidence that the respondents engaged in illegal discriminatory employment practices directed at employee Cone (FF 18).

The commission and the complainant also argue that "legal treatises and scholarly articles are unanimous in recognizing the entitlement of a survivor to pursue a death benefit claim in his or her own right." (Brief, 14-15.) A fair reading of the articles provided by the commission and the complainant, however, results in the conclusion that the issue is really whether the employers are maintaining different benefit plans for their male and female employees because of their sex (which then happen to impact the surviving spouse). In the present case, there is no evidence that the retirement benefit package the respondents provided to Cone was any different than the retirement benefit package available to any other retiree (FF 18).

Even if standing under § 46a-60(a)(1) is as broad as Article III standing, the complainant's "claim might satisfy each of these Article III criteria and yet run afoul of judicially-imposed, prudential limitations on standing. … . [His] claim may rest on the legal rights of third parties, rather than [his] own." (Citations omitted.) Kyles v. J.K. Guardian Security Services, Inc., supra, 222 F.3d 294. Fatal to the complainant in the present case are both the Connecticut (and federal) case law that employment status is a prerequisite to a § 46a-60(a)(1) (and Title VII) claim and also the lack of evidence that the respondents committed an illegal discriminatory employment practice against Cone, upon whose legal rights the complainant's own rights ultimately rest.

2.

In their brief, the commission and the complainant argue that: "The subject matter of this case is [the complainant's] survivor's allowance." (Brief, 5.) However, according to case law, the actual issue is the respondents' employment practices toward the employed spouse, Cone.

The commission and the complainant cite Mixson v. Southern Bell Telephone and Telegraph Company, 334 F. Sup. 525 (N.D. GA, Atlanta Division, 1971) for the proposition that the complainant, as a surviving spouse, is a person claiming to be aggrieved with a right to bring suit independent of the respondents' non-discriminatory conduct toward Cone. (Brief, 14.) However, Mixson's argument was not that her late husband's employer was discriminating against her but rather, as the court noted, "she says that defendants have denied her an annuity benefit on the basis of provisions in their pension plan which discriminate against her spouse and male employees as a class because of their sex." (Emphasis added.) Mixson v. Southern Bell Telephone and Telegraph Company, supra, 334 F. Sup. 526. (The defendants' pension plan had different retirement ages for male and female employees.) In other words, the court permitted Ms. Mixson to sue because she argued that the defendant's pension plan discriminated against her employed husband because of his protected basis (sex). In the present case, however, there is no evidence that the respondents discriminated against Cone in the provisions of the pension plan (FF 18).

The commission and the complainant also reference Newport News Shipbuilding & Dry Dock Co. v. Equal Employment Opportunity Commission, 462 U.S. 669 (1983) for the proposition that "a non-employee spouse or survivor of employees can bring an anti-discrimination action to contest deprivation of a fringe benefit …." (Brief, 12.) But as with the cases previously discussed, the court's analysis hinged not on the economic impact to the non-employee spouse of the employer's action. Rather, "the question we must decide is whether petitioner has discriminated against its male employees with respect to their compensation, terms, conditions, or privileges of employment because of their sex within the meaning of § 703(a)(1) of Title VII. …. We believe it did. Under the proper test petitioner's plan is unlawful, because the protection it affords to married male employees is less comprehensive than the protection it affords to married female employees." (Emphasis added.) Newport News Shipbuilder & Dry Dock Co. v. EEOC, supra, 462 U.S. 675-76. In the present case, unlike the situation in Newport News Shipbuilder, there is no evidence that the respondents discriminated against Cone, the employee spouse, in the provisions of the pension plan on the basis of her sex, her marital status or any other protected basis (FF 18).

C.

When a complainant offers direct evidence of an alleged illegal discriminatory employment practice, the "prima facie case requires that [the complainant] prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a 'motivating' or 'substantial' role in the employment decision." (Citation omitted.) Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 106 (1996). The commission and the complainant failed to establish that the complainant is within the class of people whom the legislature intended to protect. The complainant does not have employee status with the respondents (FF 14-17) and there is no evidence that the respondents committed an illegal discriminatory employment practice against Cone (FF 18).

VI. Conclusions of law

1. Employee status is a prerequisite to maintaining a complaint of an illegal discriminatory employment practice under § 46a-60(a)(1).

2. Employee status arises when, absent a bona fide occupational qualification or need and because of an individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, an employer or an employer's agent (a) refuses to hire or employ such individual; (b) bars such individual from employment; (c) discharges such employed individual from its employment; (d) discriminates against such employed individual in compensation or in the terms, conditions or privileges or employment; or (d) interferes in such individual's current, past or prospective employment opportunities.

3. The complainant does not have employee status with the respondents.

VII. Order

The complaint is dismissed.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

c.
Hon. Robert F. McWeeny
Leon M. Rosenblatt, Esq.
Denise Aguilera, Esq.
Robert J. Brothers, Jr., Esq.