Commission on Human Rights and Opportunities, ex rel. : CHRO No. 9740163
Mary L. Johnson, Complainant
State of Connecticut, : March 9, 2000 Department of Correction, Respondent
This matter originates from the filing of an Affidavit of Illegal Discriminatory Practice (hereinafter, the "Complaint") on October 22, 1996 by the Complainant, Mary L. Johnson (hereinafter, the "Complainant"), against her former employer, the Respondent, the State of Connecticut, Department of Correction (hereinafter, the "Respondent"). The Complainant alleges that she was illegally discriminated against when she was discharged from employment as a Correctional Food Service Supervisor 2 ("CFSS-2") due to her disabilities. She claims the Respondent violated the Americans with Disabilities Act and the Rehabilitation Act of 1973, as amended, as well as Connecticut General Statutes §§ 46a-60(a)(1) and 46a-70(a). For the reasons set forth below, it is here determined that the Complainant has failed to establish a prima facie case under federal law, and the Respondent has justified its actions under state law. Therefore, judgment is entered for the Respondent and the Complaint is hereby dismissed.
The Complainant is Mary L. Johnson. Her address is 25 Blackhall Street, 2nd floor; New London, Connecticut 06320. The Complainant was represented at the Public
Hearing by Barbara G. Hager, Esq. of the law firm, Andrews, Cosgrove & Young, P.C.; 216 Broad Street; P.O. Box 751; New London, Connecticut 06320. 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 C. Joan Parker, Assistant Commission Counsel II, 21 Grand Street, 4th floor, Hartford, Connecticut 06106. The Respondent is the State of Connecticut, Department of Correction, with an address of 24 Wolcott Hill Road; Wethersfield, Connecticut 06109. The Respondent was represented at the Public Hearing by Lynn D. Wittenbrink, Assistant Attorney General, and Michael Lanoue, Assistant Attorney General, both of the State of Connecticut, Office of the Attorney General, 110 Sherman Street, Hartford, Connecticut 06105-2294.II. Procedural history
The Complainant filed the Complaint with the Commission on October 22, 1996. (Record Exh. 1) After conducting an investigation, the Complaint and the results of the investigation were certified by the investigator on October 29, 1997. (Record Exh. 3) On November 12, 1997, the Honorable John F. Daly, III was appointed as the hearing officer to preside over the processing of the complaint. (Record Exh. 4) Pursuant to Public Act 98-245, the matter was reassigned to Human Rights Referee Lara L. Manzione on February 19, 1999. (Record Exh. 6) The Public Hearing was scheduled for October 18-22, 1999 by Scheduling Order dated March 16, 1999. (Record Exh. 7) The matter was again reassigned to the undersigned Human Rights Referee by Notice of Reassignment dated June 3, 1999. (Record Exh. 8) On October 18, 1999, at the Public Hearing, the Commission submitted a List of Record Exhibits to which the parties had no objection. (Tr 2) The Public Hearing was held on three days, on October 18-20, 1999. (Tr 1-454) On December 21, 1999 the Respondent filed its proposed findings of facts and post-hearing brief. The Complainant filed her proposed findings of facts and post-hearing brief on January 3, 2000. On January 24, 2000 the Complainant filed a reply brief while the Respondent did not submit a reply brief before the January 31, 2000 due date. Therefore, the record was closed on January 31, 2000.III. Findings of fact
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.
Level 1 Level 2 Total
1995: 45 335 380
1996: 29 277 306
1997: 33 266 292
1998: 9 268 277
1999: 2 198 200
(1) the Complainant now had a handicapped parking sticker which had been certified by two doctors;
(2) she was taking three additional asthma medications (Azmacort, Albuterol, and Serevent);
(3) Dr. Erdil detected wheezing in listening to her chest;
(4) her blood pressure was elevated; and (5) she did not do as well in the physical therapy evaluations. (Tr 365-67; Exh. R-20)
The Complainant argues that she is disabled due to her asthma and degenerative arthritis which both impair her ability to walk. She was able to perform the essential functions of her job in that for one year she received no negative performance evaluations. The Complainant never requested, nor needed, any accommodations to perform her job. After about one year, the Respondent happened to notice that the Complainant had a handicapped parking sticker and required that she submit to a "fitness for duty" physical. Because she failed a stress test, which consisted of running on a treadmill, the Respondent concluded that she could not perform the essential functions of her job. The Complainant argues that this stress test does not measure a person’s ability to perform the essential functions of her job because: (i) it was not a part of her pre-employment physical; (ii) other employees in the same job classification were not given this test; and (iii) Dr. Erdil testified that this was not normally part of the "fitness for duty" test. In sum, the Complainant argues that the ability to run is not an essential function of her position as CFSS, and therefore, the Complainant was able to perform her job. Further, the Complainant points to the Respondent’s safety defense as a pretext for discrimination. She argues that an "outside possibility of risk" in addition to a test that has no connection to the ability to handle that risk is evidence of her discriminatory discharge. She further claims that no individualized assessment was made of the Complainant’s ability to perform her job, other than this stress test.
The Respondent submits that the Complainant is not protected as a disabled person under the law, and that the Complainant was not qualified for the position of CFSS, which is a hazardous duty position, because she was unable to perform the essential functions of the position, which include running and walking quickly. Because she could not walk quickly or run in the event of an emergency, and, based on the stress test results showing she was at risk for a heart attack, she posed a safety risk to herself and others and was therefore not qualified for the position.
The key issue, therefore, is to determine the essential functions of the position of CFSS-2 and whether the Complainant was able to perform them.
- Federal Law
The Complainant alleges that her discharge violated the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (hereinafter, the "Rehabilitation Act"), and the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq. (hereinafter, the "ADA"), (together, the "Acts"). The Rehabilitation Act provides:
No otherwise qualified individual with a disability. . .shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .
29 U.S.C. § 794(a). Subsection (b) of § 794 defines "program or activity" as: "all of the operations of-- (1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government;. . ." The Respondent Department of Correction clearly is included within the jurisdiction of the Rehabilitation Act.
Furthermore, the ADA similarly states in Title I that no covered entity:
Shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). A covered entity is defined to include an "employer." 42 U.S.C. § 12111(2). The Respondent, a state agency with approximately 6,500 employees, is an "employer" pursuant to the definition in 42 U.S.C. § 12111(5). Additionally, Title II of the ADA provides:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.
Since the language of the Rehabilitation Act and both titles within the ADA is so similar, the same analysis and standards are applied in employment discrimination cases. Bragdon v. Abbott, 524 U.S. 624; 118 S.Ct. 2196, 2202 (1998); Worthington v. City of New Haven, 1999 WL 958627 (D.Conn.1999); Hernandez v. City of Hartford, 959 F.Supp. 125, 129 (D.Conn.1997). Furthermore, the ADA specifically directs that its standards shall be the same if not greater than those set forth in the Rehabilitation Act and its regulations. 42 U.S.C. § 12201(a). The ADA grants at least as much protection as the regulations supporting the Rehabilitation Act. Bragdon at 2202.
Consequently, to sustain a claim pursuant to the Acts, the Complainant must set forth a prima facie case of discrimination. This means she must establish the following four elements under the Acts:
Borkowski v. Valley Central School District, 63 F.3d 131, 135 (2d Cir.1995); Motta v. Meachum 969 F.Supp. 99, 111 (D.Conn.1997). In order to set forth a prima facie case, the 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). Therefore, I will address these elements in the order they are listed.
The Complainant devotes a surprisingly small portion of her post-hearing briefs to the issue of whether she was an individual with a disability. Rather, she states in a conclusory fashion that her disabilities, resulting from her morbid obesity, are physical impairments that substantially limit one or more of her life activities. The disabilities are listed as asthma and degenerative arthritis. It is unclear whether her morbid obesity, itself, is also intended to be included. See Complainant’s Brief, page 12; Complainant’s Reply Brief, page 6. The Complainant does state that the applicable "major life activity" is that of walking. Complainant’s Reply Brief, page 6.
The Respondent, however, argues that the Complainant is not disabled, in that she is not "substantially limited in the major life activity of working." Therefore, it is also summarily concluded, she is not disabled. See Respondent’s Brief, pages 40-42. Unfortunately, the issues and standards to be applied in determining whether an individual is disabled under the Acts are more complicated and involved than the parties have suggested.
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). Under the Acts, another multi-pronged test must be applied to determine whether a claimant meets the definition of an "individual with a disability." Such an individual is one who meets the following criteria:
29 U.S.C. § 706(8)(b)(i); 42 U.S.C. § 12102(2)(A). A complainant must satisfy all three of these prongs, as well, in order to "pass the proverbial test." Bragdon v. Abbott, supra; Colwell v. Suffolk County Police Department, 158 F.3d 635, 641 (2d Cir.1998), cert. denied, 119 S.Ct. 1253 (1999). Of course, each of these prongs is further defined. The regulations of the Equal Employment Opportunity Commission (EEOC) may be used to clarify the Acts. See Hernandez, supra, at 129.
A "physical or mental impairment," as set forth in the first prong, 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). See also 45 CFR § 84.3(j)(2)(i)(A).
The Complainant testified and the evidence demonstrates that she had asthma, which required the use of inhalers, as well as degenerative arthritis that would cause her knees to sometimes lock. Each of these constitutes physical impairments pursuant to the federal regulations, as her asthma affects the respiratory body system, and her degenerative arthritis affects her musculoskeletal body system. Furthermore, in the commentary accompanying the Rehabilitation Act regulations, it is set forth that orthopedic conditions constitute a physical impairment. 45 CFR pt. 84, App. A.
Although it is unclear from her briefs whether the Complainant is even claiming that her obesity is an impairment, it is alleged as a physical impairment in the Complaint. ¶ 3. The case law, however, holds that obesity is not a physical impairment under the federal regulations unless it relates to a physiological disorder. Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir.1997) The EEOC also states that "except in rare circumstances, obesity is not considered a disabling impairment." 29 CFR pt.1630, App. § 1630.2(j). Because the Complainant has not alleged that her obesity, alone, is a physiological disorder that independently affects a body system, it is not determined here to be a separate physical impairment under the federal regulations.
Since it is found that the Complainant satisfied the first prong in that she had physical impairments of arthritis and asthma, now it must be determined whether they affected "major life activities" in such a way that those activities were "substantially limited." "Major life activities," as required by the third prong, are defined as "functions such as caring for one’s self, performing manual tasks, walking . . . breathing . . . and working." 45 CFR § 84.3(j)(2)(ii); 29 CFR § 1630.2(i). In deciding whether an activity is actually a "major life activity," the analysis focuses on whether the activity is a "significant one within the contemplation of the ADA," instead of whether it is significant to the individual claimant. Sutton, supra, at 642. Complainant’s degenerative arthritis and asthma certainly affect her walking. She testified about her difficulties walking to her job from the parking lot, which ultimately led her to obtain a handicapped parking sticker. Two doctors certified to DMV that she was "severely impaired" due to her asthma and degenerative arthritis. In fact, the Second Circuit Court of Appeals has found walking to be a per se major life activity. Colwell, supra, at 642. Running, however, is not a major life activity, and neither is stair-climbing. Piascyk v. City of New Haven, 64 F.Supp.2d 19, 26 (D.Conn.1999). In addition, the Complainant’s breathing was also affected by her asthma. Therefore, the Complainant has met the third prong of the test in that her physical impairments affected the major life activities of walking and breathing, as set forth in the regulations.
The key to a finding of the Complainant as disabled, however, lies in the second prong of the test, which is whether her physical impairments "substantially limited" those major life activities identified. This determination requires an individualized inquiry that is fact-specific. Sutton, at 2147; Bragdon, at 2206; Colwell, at 643. The federal regulations pursuant to the ADA define "substantially limits" to mean:
(i)Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 CFR § 1630.2(j)(1)
The following factors are considered in determining whether an individual is "substantially limited in a major life activity":
- the nature and severity of the impairment;
- the duration or expected duration of the impairment; and
- the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 CFR § 1630.2(j)(2)
Intermittent, episodic impairments are not considered disabilities. Hernandez v. City of Hartford, 959 F.Supp. 125, 131 (D.Conn.1997); 29 CFR.App. § 1630.2(j). Furthermore, the Supreme Court in Sutton, ruled that mitigating measures must be taken into account in determining whether a major life activity is "substantially limited." Id., at 2146-47. In other words:
[A] person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not "substantially limi[t]" a major life activity. Id. at 2147.
As stated above, it has been determined that the Complainant’s asthma and arthritis affected the major life activities of walking and breathing. She has the burden to show that these limitations were substantial. Colwell, at 644.
In reference to the major life activity of breathing, the Complainant was on numerous medications to keep her asthma under control. In addition, the Complainant obtained a handicapped parking sticker due in part to her asthma, which acted up when she had to walk long distances. Applying the tests above to her asthma condition, taking into account her inhalers and medication as mitigating measures, she certainly is not "unable" to "perform a major life activity"—breathing—that the average person can perform, pursuant to the EEOC regulations, 29 CFR § 1630.2(j)(1). However, there is evidence to support the second prong, that she was "significantly restricted as to the condition, manner or duration" under which she could breathe as compared to the average person.
In applying the relevant factors from the above framework, I conclude that she was significantly restricted as compared to the average person. The "nature and severity" of her asthma is set forth in letters from her personal physician, Stephen Johnson, M.D., as well as the Respondent’s doctor, Michael Erdil, M.D. First, Dr. Johnson states in a letter to Dr. Erdil, dated August 30, 1996, shortly after she consulted with Dr. Erdil for her fitness for duty examination, that, in spite of her medications, he had recently seen her for a flare-up of her asthma. (Exh. R-20) He continues that her physical condition, including her asthma "rules out any type of occupational activity." Additionally, in a letter provided to her supervisor, dated July 30, 1996, Dr. Johnson even states that her asthma, combined with her other difficulties, "limit her ability to perform any physical exertion (emphasis supplied)." Dr. Erdil testified that he detected in his examination that the Complainant still had some wheezing in spite of all of her medications, which indicated to him that her asthma was not under control. These conditions indicate the nature and severity of her asthma, which was quite high. Dr. Johnson states that he does not expect any significant improvement in the August 30, 1996 letter which indicates an indefinite duration of the condition. The impact of the asthma on her overall condition is such that she cannot perform any physical exertion, as explained by her doctor, and as evidenced by her poor exercise capacity in completing only 1 3/4 minutes on the stress test. In fact, her shortness of breath from her walks from the parking lot to the kitchen at Corrigan led her to apply for handicapped parking in the first place.
The Complainant, however, testified that she is able to do whatever she wants to do without limitation. She is very active in a variety of programs and activities sponsored by her church. She is also employed as a crossing guard for the New London Police Department. The Complainant presented no evidence that she was required to change or moderate her behavior or daily life outside of work due to her asthma. However, it would not help her case for her to set forth what she could and could not do based on her condition as it would defeat her claim that she was qualified for the position. None of the activities she set forth require much physical exertion, e.g. sewing classes, and her crossing guard position is part-time. I do take note of the fact, however, that she did not call her own physician as a witness to clarify her condition. His absence leads me to rely solely on his two letters that indicate a severe problem with her asthma. Although he does not put any restrictions on her, he explains that it is because he feels it would be better for her to do what she can, therefore, her restriction is "as tolerated," which he confirms is very "minimal." Therefore, I find that even taking into account her medications as a mitigating measure, the evidence supports a finding that the Complainant was substantially limited in the major life activity of breathing, and is therefore disabled under the Acts.
The other major life activity affected by her physical impairments was walking. The Complainant’s degenerative arthritis caused her knees to sometimes lock and she would have to sit. In fact, her supervisor noted in her performance evaluation that she sat more than she should on the job. She testified that she could not run. Climbing stairs was difficult at work so she obtained an elevator key, so she could avoid the stairs. Dr. Johnson noted that her stair climbing is "particularly limited." (Exh. R-27) He said her arthritis combined with her asthma and obesity limit her from performing any physical exertion, as set forth above. (Exh. R-27) Although she was not "unable" to walk, compared to the average person, I do find that she was "significantly restricted" compared to the average person.
The nature and severity of her arthritis is evidenced by her own doctor’s letters, dated July 30, 1996 and August 30, 1996 which provide that physical exertion is limited and that occupational activity is "virtually rule[d] out." She testified that when her knees locked she would be unable to walk or respond in an emergency, wouldn’t be able to restrain an inmate, and would be unable to run or assist the custodial staff. Dr. Johnson stated that her condition is not expected to improve, so, as with the asthma, her condition is of an indefinite duration, and the impact on her is that all physical activity is impractical if not impossible. Her orthopedist, who also was noticeably absent as her witness at the hearing, certified that she was severely impaired in her ability to walk which led to her obtaining a handicapped parking sticker. She also walks with a limp. (Complaint ¶ 3) Still, as stated above, she does state that she can do anything she wants to do and is not limited in any way. She testified that she is very active in a variety of programs through her church and also works as a crossing guard for the New London Police Department. However, it is the fact that two doctors certified to DMV that she was "severely impaired" in her ability to walk, which enabled her to obtain a handicapped parking sticker. This sticker was created to allow people with extreme difficulty seeing and walking to park closer in all public establishments, and not just at her place of employment. As with her asthma, it would not be in her best interest to set forth all of her difficulties walking because she would surely be found unqualified for her position. None of her outside interests as stated in her testimony or her crossing guard position require significant physical exertion.
In the district court case, Piascyk v. City of New Haven, 64 F.Supp.2d 19 (D.Conn.1999) the complainant-police officer:
had a 20% impairment of his right ankle and 10% impairment of his back; experienced difficulty climbing stairs; had a marked limp; moved slowly; suffered a constant, moderate pain in his right ankle, which occasionally became intense, and which was worsened by walking; periodically wore an air cast; and was able to walk only about half a mile. Piascyk, supra, at 27-28.
The Court found that the complainant was not substantially limited in the major life activity of walking. Id., at 28. It reasoned that none of those limitations significantly restricted his ability to walk compared to the average person in the general population. Id. Furthermore, the court cites numerous other cases which did not find the complainants substantially limited in the ability to walk, including the case Richardson v. William Powell Co., No. C-1-93-528, 1994 WL 760695 (S.D.Ohio 1994) in which a person with degenerative arthritis that caused a noticeable limp and difficulty climbing stairs was found not to be disabled under the ADA; and an obese individual who had to rest after walking five city blocks was not disabled under the ADA in Hazeldine v. Beverage Media, Ltd., 954 F.Supp. 697, 703-04 (S.D.N.Y.1997). Piascyk at 28-29.
The difference in this case, however, is that the Complainant’s own physician rules out all "physical exertion" and "occupational activity." He further states that he does not expect any improvement. Her difficulties were noticed by her supervisor in that he states that she would be better suited for a job without physical activity. Based on the above, I conclude that the Complainant was substantially limited in the major life activity of walking. These problems and severe limitations which drove her to obtain a handicapped parking sticker do distinguish her from the average person in the population, in that the average person is able to physically exert himself/herself to some degree and is able to participate in some form of "occupational activity."
As set forth above, this decision is not based solely on the fact that the Complainant had a parking sticker. The standard for obtaining such a sticker, however, does provide additional evidence that she was significantly restricted.
The fact that an individual . . . is classified as disabled for other purposes does not guarantee that the individual will satisfy the definition of "disability" under part 1630. Other statutes, regulations and programs may have a definition of "disability" that is not the same as the definition set forth in the ADA and contained in part 1630. 29 CFR.App. § 1630.2(j).
Section 14-253a of the General Statutes permits a person to have handicapped parking privileges if he or she has "disabilities which limit or impair the ability to walk, as defined in 23 CFR Part 1235.2." This regulation, created by the federal Department of Transportation, defines "persons with disabilities which limit or impair the ability to walk" as those who:
- cannot walk  feet without stopping to rest; or
- cannot walk without the use of, or assistance from, a brace, cane, crutch, another person, prosthetic device, wheelchair, or other assistive device; or
- are restricted by lung disease to such an extent that the person’s forced (respiratory) expiratory volume for one second. . . is less than one liter. . .; or
- use portable oxygen; or
- have a cardiac condition. . .
- are severely limited in their ability to walk due to an arthritic, neurological, or orthopedic condition. 23 CFR § 1235.2(b).
The Complainant testified and evidence was presented that she is severely limited in her ability to walk due to an arthritic condition, as described in item (6). DMV requires this information to be certified by a doctor. See 23 CFR §1235.2(b) and Regulations of Connecticut State Agencies § 14a-253a-3(c). In order to renew these privileges, no additional physician certification is required. § 14a-253a-7(b). The fact that the Complainant still possesses her handicapped parking privileges as of the date of the public hearings, reveals that she continues to have difficulties.
I determine that the Complainant is substantially limited in the major life activities of breathing and walking under the Acts. It is significant to note that Dr. Johnson does not separate or identify which impairment is more responsible for the Complainant’s limitations, but continually states that her limitations stem from a combination of her arthritis, asthma and obesity. The EEOC states that this is acceptable in the "substantially limits" analysis. "Multiple impairments that combine to substantially limit one or more of an individual’s major life activities also constitute a disability." 29 CFR.App § 1630.2(j).
The Respondent argues that because the Complainant is not substantially limited in the life activity of working, then she is not disabled. This reasoning is flawed because, as stated above, an individual may be substantially limited in other "major life activities" and therefore become protected by the Acts. In fact, if an individual is found to be substantially limited in any other major life activity, then the major life activity of working need not even be considered. Sutton, supra, at 2151. Yet, since the Respondent has brought this issue to the forefront, the underlying analysis is presented.
The EEOC uses a different definition of "substantially limits" when referring to the major life activity of ‘working’:
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 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 her breathing and walking 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).
In her reply brief, the Complainant counters that she is not claiming to be limited in the major life activity of working, but instead of "walking." Therefore, no evidence was presented showing the types or kinds of jobs from which she was disqualified. She does not allege anywhere that she was unable to work in a broad class of jobs, or even in this one.
It is here determined that the position of CFSS-2 is only a single job specialized to a unique setting, a correctional facility. 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). In the case, Muller v. Costello, supra, a correction officer with asthma was found not to be substantially limited in the life activity of working because the position of correction officer was determined to be a single, particular job. Id. at 313. A correctional rehabilitation service officer whose ability to walk was limited by total foot drop in the case, Motta v. Meachum, supra was found not substantially limited in the major life activity of working, because, that, too, was found to be a single, particular job. Id., at 113.
Based on the above two cases, the Complainant is also not substantially limited in the life activity of working as the position of CFSS-2 is a single, particular job unique to a prison setting. There are more than enough food service supervisor positions in restaurants, banquet facilities, and educational establishments that are available to her with or without her physical impairments for which she is aptly qualified. None of these establishments could have similar requirements to a correctional facility, such as being able to escape or restrain violent or hostile inmates. None of those would train the Complainant in the management of aggressive behavior due to the constant danger of injury or assault by the inmates. In fact, the Complainant was employed by the State of Connecticut as a cook prior to her employment with the Respondent. Therefore, the Complainant is not substantially limited in the life activity of working.
Therefore, based on the above, the Complainant is an "individual with a disability" due to her physical impairments of asthma and degenerative arthritis which are found to substantially limit the major life activities of breathing and walking.
2. Whether the Complainant was Otherwise Qualified for the CFSS-2 Position
Because the Complainant has satisfied the first element in her prima facie case, in that she is an individual with a disability, she must also satisfy the second element, that of being qualified for the position. The Complainant contends she was qualified for the position because: (i) she passed the pre-employment physical; (ii) she had experience cooking in similar settings; (iii) she passed the MOAB training, a requirement for the position; (iv) she performed her job for one year without any negative comments on her reviews; and (v) she kept the kitchen calm and was able to handle the inmates so that there was no incident in the kitchen area during her employment. The Respondent argues that the Complainant was no longer physically qualified for the position as a hazardous duty employee.
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 yet another 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 at 138.
Therefore, I must first consider what the essential functions are for the position of CFSS-2. 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 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:
- the employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants;
- the amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of the collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
- The current work experiences of incumbents in similar jobs. 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.
If we apply the factors set forth in the regulations to this case, the Respondent’s witnesses gave clear guidance in their testimony as to what functions are "essential" to the position of CFSS-2, a hazardous duty position. Warden David Marcial, who was the warden at Corrigan from April 1995 to October 1996 (Tr 297), almost the entire period of time that the Complainant was employed by the Respondent, testified that a hazardous duty person has to be prepared to be able to respond to emergencies, which is one of the reasons they receive the MOAB training. If an incident occurs, everyone has to be able to respond. The primary responsibility—even for a CFSS—is management of the inmates. All kitchen workers are expected to respond and help in an emergency. (Tr 303-05). Therefore, the ability to run and help others in an emergency is a requirement of the position, as Robert Munroe, Principal Personnel Officer for the Respondent, also testified.
The Complainant’s witnesses testified that they were actually ordered to not assist in an emergency, but instead they were to pull their body alarms to warn the correction officers of the incident and to let them take care of the matter. Samuel Prottas, a food service supervisor who worked with the Complainant at Corrigan, testified that in the event a code signaling an incident is called, his job is to secure the inmates. Furthermore, in his six years with the Respondent he never was required to run (Tr 137) He was told in the event of a code to stay in the kitchen. (Tr 140) Complainant’s other witness, Jon Alcodray, another CFSS-2 who worked with the Complainant at Corrigan, testified that in the event of an incident he would call a code so the correction officers would respond. (Tr 162-63) He was ordered not to get involved. (Tr 162) He also testified that in his six years of employment he never pulled his body alarm, or saw any other CFSS pull theirs. (Tr 168) His testimony was that in the event of an emergency, they were ordered to call the codes so the correction officers could handle the situation. (Tr 169-70)
I do not perceive the Complainant’s witnesses to be as credible as the Respondent’s. First, they all testified that they were the Complainant’s colleagues and friends. Therefore, they may be inclined to color the facts to help her case. This I believe they did. Second, their testimony that they were supposed to merely call a code and then retreat is simply not logical. There can certainly be instances when they are in the middle of the incident, or their co-workers are in the middle of an assault, and calling the code is not practical or quick enough. Their supervisor testified that an inmate had actually grabbed his hands and he had to try to break free. He surely would be unable to pull an alarm at that moment, and he would be sorely disappointed if all of the kitchen workers in the vicinity merely secured the area and did not come to his aid. The Respondent’s counsel aptly pointed out that Mr. Alcodray likely had a bias against his employer in that he has been disciplined as well as received less-than-favorable evaluations which he is contesting in arbitration. (Tr 178-79)
Another reason that I found the Complainant’s two witnesses to be not as credible lies in the job descriptions for the position, which brings me to the second factor recommended by the EEOC to consider in the essential function analysis. As the Complainant commenced her employment with the Respondent in January of 1995, the relevant job descriptions prepared by the Respondent employer must have been in existence at that time. Therefore, the relevant evidence is found in Respondent’s Exhibit 7, which has an effective date of July 3, 1987, rather than Respondent’s Exhibit 9, which was approved as accurate in October of 1996. The Respondent’s witness, Maria Houser, who was correctional personnel director at the time of the Complainant’s employment, testified that the 1987 job description was in effect at the time of the Complainant’s employment at Corrigan. (Tr 407)
The 1987 job description lists several duties of the CFSS-2 unrelated to food preparation, including: "maintains discipline and security measures; may physically restrain inmates, quell disturbances and otherwise assist custodial forces in emergencies. . ." Under the heading, "Minimum Qualifications Required Knowledge, Skill and Ability" is listed "ability to perform under stress and remain stable in pressure situations." There is a heading revealing the intention of the Respondent that the incumbents be physically fit, in that there are physical requirements for the position: "Incumbents in this class must possess general good health and retain sufficient strength, stamina, agility . . ." It further warns under the heading "Working Conditions:" "Incumbents in this class may be exposed to danger of injury or assault by inmates." Contrary to the Complainant’s witnesses’ testimony, this job description requires the CFSS-2 to physically restrain inmates, quell disturbances and to assist the correction officers. In order to do this they must have the necessary physical strength, stamina and agility. In fact, inmate injury and assault is listed as an expected part of the job environment. Based on this job description, the ability to run or walk quickly, both from an uprising by the inmates in order to protect oneself, as well as to assist the correction officers or to protect another co-worker or inmate by quelling a disturbance or physically restraining an inmate would all be essential functions of the position.
As for the amount of time spent doing these activities, the Complainant testified, as did her witnesses, that she never needed to run or walk quickly in the year and one-half that she was employed, because there was never a disturbance or incident while she was there. However, the fourth element, which requires consideration of the consequences of not being able to perform the function, is more convincing of the necessity of the function being characterized as "essential." The consequences of not being able to run from or to an emergency, and of not quelling a disturbance or physically restraining an inmate, or of not assisting co-workers, are dire in that they can result in serious injury or even death to either herself, her co-workers, or another inmate. Corrigan did not house solely inmates accused of "white-collar" non-violent crimes, but rather it was classified as a level 4, high-security facility. Many inmates residing in that facility were accused of violent offenses. Furthermore, the Respondent’s witnesses testified that the kitchen was one of the most dangerous places within a correctional facility, because it is a place where the inmates congregate, and also because of the cooking activities which occur there, including the use of kitchen utensils (knives), hot oil, and boiling water. Plus, food is one of the most important parts of an inmate’s day and inmates often fight over it. As the CFSS-2 is often supervising several inmates at once, who will be using kitchen utensils, it is not illogical to require a CFSS-2 to be able to protect herself and others in what is likely a "pressure-cooker" situation. The consequences of placing someone whose impairments make it difficult for her protect herself and/or assist others in an emergency into such a setting is not only irresponsible but reprehensible.
I cannot consider the terms of the collective bargaining agreement as it was not put into evidence. However, I can consider the sixth and seventh elements, that of the work experiences of past incumbents in the job, as well as current incumbents. Although the Complainant testified that she had never seen or been involved in an incident in the year and one-half that she had been employed at Corrigan, the evidence reveals that she was extremely lucky. In 1996 a CFSS-1 at another facility lost his eye due to an incident with an inmate while working in the kitchen. In fact, the inmate had previously been an inmate at the Corrigan facility, and therefore could have worked under the Complainant’s supervision. Also, in the kitchen of another level 4 facility, the Complainant’s supervisor and two other food service employees had to break up a fight between inmates. The Complainant’s supervisor, Hosea Ferguson, also was grabbed from behind by an inmate that he knew and he had to attempt to break loose. He testified that he had witnessed several fights in the kitchen. At a level 3 facility, which is a lower level of security than Corrigan, the inmates burned down the kitchen. In fact, no facility in the entire Department of Correction has been incident-free. At Corrigan alone, between the years 1997-1999 there were 40 incidents in the kitchen. One of those incidents involved two CFSS employees who broke up a fight. One of the food service supervisors was hit with a broomstick by an inmate. Another incident included the Complainant’s witness, Samuel Prottas, who had to break up a fight. Eight of the 40 incidents involved the Complainant’s second witness, CFSS Alcodray. Yet another incident involved a CFSS being able to save his own life because he ran away from an angry mob of inmates. In the year 1995, there were 973 inmate-on-inmate assaults and 380 inmate-on-staff assaults. In the year 1996, there were 1,021 inmate-on-inmate assaults and 306 inmate-on-staff assaults.
Based on the above, it is clear that the risk of injury or assault is ever-present and imminent. The Complainant worked in a particularly dangerous section of the facility with particularly dangerous inmates. Other employees in her position were called upon often to assist in emergencies as well as to protect themselves by escaping. The Complainant testified that she would be working in the kitchen along with about 20 inmates without the presence of a correction officer. The mere fact that an emergency had not occurred in the short time period of one and one-half years is absolutely no indication that it would not ever occur. In fact, no matter what the Complainant’s relationship with the inmates was, she cannot vouch for the other CFSS workers that were in the kitchen at the same time as she, and who might annoy or harass an inmate to the point of being out of her control. Just as being a safe driver cannot guarantee one will never be in an automobile accident due to the fact that other drivers are on the road, the Complainant’s good relationship with the inmates does not guarantee that one of her co-workers would not be involved in an incident in which she would need to assist or to restrain an inmate. Additionally, the Complainant worked with a variety of inmates accused of a variety of violent crimes. Her good relationship with those inmates she knew did not guarantee a good relationship with every single inmate that came through that kitchen and did not guarantee a good relationship among the inmate population in general. I also cannot ignore the fact that the Respondent sent the Complainant to be trained in the management of aggressive behavior and paid her during the full six weeks. This was not done for the Complainant’s personal enrichment but because it was necessary for her to perform her job. She was taught skills that the Respondent expected her to use in the event of an incident or emergency. Therefore, based on the above, I find the ability to run, walk quickly, assist correction officers and others in emergencies, quelling disturbances and physically restraining inmates to be essential functions of the hazardous duty position of CFSS-2.
Other courts have made similar rulings in evaluating the essential functions of employees within correctional facilities. The Connecticut case, Motta v. Meachum, 969 F.Supp. 99 (D.Conn.1997), is most similar to the facts at bar. There, the complainant was a prison counselor for the Department of Correction, a position that is also classified as "hazardous duty." She developed total foot drop and required a brace to correct the condition. Her daily activities included meeting face-to-face with the inmates and she also wore a body alarm. During her term she was never physically attacked by an inmate or saw anyone get attacked and never had to physically restrain an inmate. Due to her physical limitations, she requested permanent light duty but was discharged as no such position exists. Her job description also cited being able to "physically restrain inmates, quell disturbances, and otherwise assist security forces in emergencies." She requested a reasonable accommodation of doing only the administrative duties, rather than meeting with the inmates. The court found that meeting directly with inmates, "and the dangers and responsibilities attendant thereto" was an essential function of her job (emphasis supplied). It also held that the body alarms "are not substitutes for the plaintiff’s ability to protect herself, by running or walking quickly, if necessary." Id., at 115. "Exposure to inmates. . . can unpredictably pose danger to plaintiff, her co-employees, and other inmates." Id. at 117.
In the case Barnfield v. New Hampshire, 1996 WL 679398 (D.N.H.1996), the plaintiff was a remedial teacher at a correctional facility for juvenile delinquents. After back surgery, the plaintiff’s doctor sent him back to work with a note restricting him from administering physical discipline and the plaintiff was discharged. While the plaintiff argued that security was not an essential function of his position, the court disagreed and held it was essential to the position of remedial teacher:
The ability to restrain students promotes the safety of everyone at . . . YDC, and the concomitant deterrent effect implied in such an ability has a salutary effect on classroom discipline by deterring juveniles who might otherwise require physical restraint. Id., at 6.
Other courts that have ruled security to be an essential function of positions that infrequently used it include: Champ v. Baltimore County, 884 F.Supp. 991 (D.MD.1995), aff’d 91 F.3d 129 (4th Cir.1996) (police officer that couldn’t perform forcible arrest due to an arm injury was deemed not otherwise qualified as he posed a direct threat to the health and safety of others); Johnson v. Maryland, 940 F.Supp. 873 (D.MD.1996); aff’d 113 F.3d 1232 (4th Cir.1997) (correction officer that couldn’t operate firearm due to hand tremors claimed it wasn’t essential function because never used it in 14 years of his career but the court held he was not qualified because he posed a threat to the health and safety of others); Martin v. Kansas, 190 F.3d 1120 (10th Cir.1999) (correction officer who could not run or physically restrain inmates due to arthritis in knees claimed they were not an everyday occurrence however court ruled that dire consequences of not being able to perform same rendered them essential functions); and Miller v. California DOC, 1998 WL 917525, No. C-96-01262-VRW (N.D.Ca.1998) (correction officer with injuries to back and neck was rendered unable to break up a fight. Court held that fact that she hadn’t encountered a fight in the 6 months of work does not mean she won’t ever encounter such an emergency and responding to an emergency is an essential function).
In comparison to the facts at bar, the Complainant testified that she cannot run. She also testified that she could not walk quickly, even in response to an emergency. She further testified that, due to her degenerative arthritis, her knees would sometimes lock for 15 minutes at a time. Her own doctor states that, due to her impairments, physical exertion is virtually ruled out. Dr. Erdil testified that in her second physical examination, he detected wheezing in spite of the several asthma medications she was taking, which demonstrated to him that her asthma was not under control. The Complainant possesses a state handicapped parking sticker because two doctors certified to DMV that she was "severely impaired" in her ability to walk. Finally, the Complainant’s treadmill test results led Dr. Erdil to conclude that the Complainant’s heart condition was also conducive to a heart attack. Based on the evidence and the above factors, I conclude that the Complainant was not qualified to perform the essential functions of her hazardous duty job. In the event of an emergency, she cannot run or walk quickly to escape, much less to assist others. In the high-stress situation of an incident involving violent people, not only is she risking her own life, but she is also placing her co-workers’ lives in jeopardy, as well as the lives of the inmates. Not only should the Respondent not be forced to employ a person who cannot perform the essential functions of her position, but they should also not be forced to employ someone who not only is putting her own life at risk, but also the safety of the inmates and the other employees for whose care it is ultimately responsible and liable. Unfortunately for the Complainant, her employment could make a dangerous situation even more dangerous.
If it is determined, after a review of the evidence, that a complainant cannot perform the essential functions of her position, the final stage of the "otherwise qualified" inquiry is to evaluate whether the employer could reasonably accommodate the employee. Arline, 480 U.S. at 288. Gilbert v. Frank, 949 F.2d 637, 641 (2d.Cir.1991). Accommodation is not reasonable if it either imposes "undue financial and administrative burdens" on a grantee." Arline at 288. It is the complainant’s burden to suggest the reasonable assistance or job modification. Gilbert, supra at 642. This burden is not a heavy one. Id. "Reasonable accommodation," however, does not mean elimination of any of the job’s essential functions. Id. at 642. "Once an individual with a disability requests accommodations, the responsibility for fashioning a reasonable accommodation is shared between the employer and the employee." Worthington v. New Haven, 1999 WL 958627 (D.Conn.1999)
In the instant matter, the Complainant did not present any evidence or suggestions for any assistance or job modifications. In fact, it is her position that she never requested an accommodation because she did not need one. See Complainant’s Brief p. 5. However, because the district court in Worthington cites language to the effect that "employees need not mention the ADA or even the term ‘accommodation’ so long as the employer has knowledge of the disability," there is one instance which requires review. In the Complainant’s annual review, her supervisor makes note that the Complainant was sitting too much. The Complainant testified that this caused her to obtain a doctor’s note, presumably to inform her supervisor that there was a medical reason why she was sitting. Viewed liberally, this doctor’s note could be the Complainant’s notice to her employer of her disability and need for an accommodation. "Once an individual with a disability requests accommodations, the responsibility for fashioning a reasonable accommodation is shared between the employer and the employee." Worthington, citing Beck v. University of Wis. Bd of Regents, 75 F.3d 1130, 1134-36 (7th Cir.1996). However, it is not the Complainant’s constant sitting which is the reason she was discharged. Even if the Complainant was permitted to sit while she worked, this did not change the fact that she could not perform the essential functions of running, or walking quickly, which need not be eliminated to reasonably accommodate a disabled employee. The evidence does not reveal or even suggest any other requests for accommodations by the Complainant even after she was informed that she must be placed on medical leave.
The Respondent submits, in its brief, that the only possible accommodation would be to specifically employ another individual to essentially "guard" the Complainant’s safety during her shift and possibly perform the physical requirements of the position, as well. This is certainly not a reasonable accommodation, however, because it would force the Respondent to employ and pay a salary to two employees to perform the duties and essential functions of one. Hershey v. Praxair, Inc., 969 F.Supp. 429, 435 (S.D.Texas 1997) However, a reasonable accommodation does not require the reassignment of essential job functions, either. Barnfield, supra.
In the Motta case, the complainant prison counselor had requested that she be limited to administrative functions as an accommodation, and thereby have no inmate contact. The court rejected this accommodation as unreasonable because it would eliminate the essential function of "meeting with inmates, and the dangers and responsibilities attendant thereto." In Barnfield, the complainant teacher in a correctional facility for juveniles suggested that the teacher’s aide and other counselors perform the physical security. The Court rejected this accommodation because it would require "re-assigning" the essential job function of the ability to restrain juveniles.
The Complainant is not requesting the elimination of inmate contact or the reassignment of any of her responsibilities, contending that she could perform her job without one. Because the Complainant has not suggested or requested any accommodations I determine that the Complainant has not satisfied her burden of production and therefore could not perform the essential functions of her position with or without a reasonable accommodation. In sum, the Complainant was not qualified for the position, and therefore could not meet the second prong of her prima facie case of discriminatory discharge under the Rehabilitation Act and the ADA.
B. State Law
The Complainant’s failure to establish a prima facie case under federal law is not fatal to her claims under state law. In her Complaint, the Complainant also alleges that the Respondent has violated General Statutes §§ 46a-60(a)(1) and 46a-70(a) (together, "the Statutes"). Section 46a-60(a)(1) provides:
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 refuse to hire or employ or to bar or to discharge from employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability . . . Id.
Additionally, Section 46a-70(a) of the General Statutes provides:
State officials and supervisory personnel shall recruit, appoint, assign, train, evaluate and promote state personnel on the basis of merit and qualifications, without regard for race, color, religious creed, sex, age, national origin, ancestry, mental retardation, learning disability or physical disability, including but not limited to, blindness, unless it is shown by such state officials or supervisory personnel that such disability prevents performance of the work involved. Id.
The Complainant has alleged the Respondent has discriminated against her in discharging her due to her physical disabilities of arthritic knees, asthma, and obesity ("overweightiness"). Complaint, ¶ 3. Therefore, to determine whether the Complainant is protected by the Statutes, it must be determined whether the Respondent, as a state agency, is an "employer" pursuant to § 46a-60(a)(1), and also whether the Complainant’s impairments are "physical disabilit[ies]" pursuant to both statutes.
General Statutes § 46a-51(10) defines "employer" to: ". . . include[s] the state and all political subdivisions thereof and means any person or employer with three or more persons in his employ." Based on this definition, the Respondent state agency, with its thousands of employees, clearly fits the definition of employer under both statutes.
"Physically disabled" is, in turn, defined under subsection (15) of General Statutes § 46a-51 as:
any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device. Id.
The Complainant’s listed physical impairments of asthma, arthritic knees and obesity are not alleged in either her complaint or in any evidence presented to be congenital or resulting from "bodily injury, organic processes or changes from illness." Therefore, the key to whether she is protected under the Statutes depends on the definition of "chronic."
The Superior Court in The Gilman Brothers Co., v. CCHRO, 1997 WL 275578 (Conn.Super.May 13, 1997) (No. CV950536075) McWeeny, J., upheld a 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).
The Complainant’s own physician, in his letter to the Respondent’s witness, Dr. Erdil dated August 30, 1996, stated that her problems, including "severe" degenerative joint disease, as well as asthma were not expected to improve. (Exh. R-20) He had been treating her since 1989. (Exh. R-27). Therefore, it appears from the Complainant’s doctor’s letters, that the Complainant’s impairments meet the definition for "physically disabled" in that they were of long duration and "threatening a long continuance" under the Statutes and bring her under their protection. Moreover, the Connecticut superior court has ruled that a complainant suffering from asthma is protected by § 46a-60 pursuant to § 46a-51(15). Earley v. Maryland Casualty Company, 1997 WL 625439 (Conn. Super. Oct. 3, 1997) (No. CV 970567497) DiPentima, J.
Although it has been ruled that the Complainant is protected by the Statutes, she still must set forth a prima facie case. In determining the requisite elements of a prima facie case under Connecticut’s anti-discrimination law, the Connecticut Supreme Court has determined that federal precedent may be consulted for guidance in employment discrimination cases. Levy v. CHRO, 236 Conn. 96, 103 (1996); Miko v. CHRO, 220 Conn. 192, 202 (1991). It is well established that Connecticut recognizes two theories of employment discrimination: (1) disparate treatment; and (2) adverse impact. Levy, supra, at 104. "Disparate treatment" cases involve allegations that certain individuals are being treated differently than others due to their protected status under the law. Id. "Adverse impact" cases allege that certain policies and procedures disproportionately work to exclude entire classes of individuals protected under the law. Miko, supra, at 202. The Complainant here is alleging disparate treatment in that she, alone, was discharged based solely on her physical disabilities.
Under the disparate treatment theory, there are two separate and distinct methods used, depending on the factual circumstances, to allocate the burdens of proof. One method is used when complainants cannot directly prove that the reasons behind an employment decision were discriminatory. It was set forth in the United States Supreme Court cases McDonnell Douglas Corp. v. Green, 411 U.S. 792; 93 S.Ct 1817 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248; 101 S.Ct 1089 (1981), and 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. Commission on Human Rights and Opportunities, 237 Conn. 209, 225 (1996); Miko v. Commission on Human Rights and Opportunities, 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., 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. Commission on Human Rights and Opportunities, 236 Conn. 96, 105-06 (1996).
It is the second method and accompanying prima facie case which applies here, in that the Complainant presented direct evidence of her employer’s discriminatory motive. She was told she was being placed on medical leave by Warden David Marcial due to her walking problems, as evidenced by his letter to her dated October 7, 1996. Additionally, this letter states that she was being discharged from state service due to the adverse report from her medical exam and her handicapped license plate application. Other evidence reveals that Sandra Washington anticipated a medical evaluation of the Complainant due to her performance evaluation in which her supervisor states that she would be better suited for work that didn’t require much standing or moving around, and her handicapped parking sticker. Because the Respondent made it clear that she was placed on medical leave and subsequently discharged due to her physical disabilities, and their concern that they prevented her from performing the essential functions of her position, the mixed motive analysis applies. Therefore, the Complainant is required to prove that (1) she is a member of a protected class under state law, and (2) her discharge or "employment decision" was motivated by her physical disabilities or they played a substantial role. This time, the Complainant has established a prima facie case under state law.
As set forth above, the Complainant is a member of a protected class under the Statutes in that the Respondent meets the definition of "employer" and her impairments meet the definition of "physically disabled." Therefore, the first prong has been satisfied.
The second prong has also been satisfied. The Respondent had noticed the Complainant had a handicapped parking sticker and subsequently placed her on medical leave pending satisfactory completion of a medical examination. (Exhs. C-13 and R-16) When it was determined she failed the examination, she was discharged. (Exhs R-16 and R-22 ). It was determined that she could not perform the essential functions of her position based solely on the existence of her physical disabilities. (Exhs. R-16, R-20 and R-22) The Complainant has set forth a prima facie case for discrimination because it is clear that the Respondent’s decision to discharge her was motivated by an impermissible factor, her physical disabilities. In fact, the Complainant’s physical disabilities not only played a substantial role in the decision to discharge her, they were the entire role.
Once a complainant has established a prima facie case, the burden of production and persuasion falls on the respondent to prove, by a preponderance of the evidence, that it would have made the same decision even without the impermissible factor. Levy, at 106. In other words, it must justify its clear discriminatory behavior with a "legitimate, nondiscriminatory reason" for requiring her to submit to a medical examination and subsequently discharging the Complainant due to her physical disabilities. CHRO v. General Dynamics Corp., 1995 WL 264014 (Conn.Super.May 1, 1995) (No. 524470) Hurley, J. The Statutes specifically set out one such "legitimate, nondiscriminatory reason" for conduct found to violate them. General Statutes § 46a-60(a)(1) allows for "a bona fide occupational qualification or need." General Statutes § 46a-70(a) allows the state officials or personnel to show that the physical disabilities "prevent[s] performance of the work involved." Therefore, if the Respondent can prove its actions were due to a bona fide occupational qualification or need and that the Complainant’s physical disabilities prevent her from performing her job, it has successfully defended itself from liability under the Statutes.
"Express discrimination is legally permissible if the employer proves that the factor is question is a bona fide occupational qualification (BFOQ) reasonably necessary for the normal operation of the employer’s particular business." Levy, at 102. The United States Supreme Court agrees:
[D]iscrimination is permissible [in] ‘certain instances’ where. . . discrimination is ‘reasonably necessary’ to the ‘normal operation’ of the ‘particular’ business. Each one of these terms—certain, normal, particular— prevents the use of general subjective standards and favors an objective, verifiable requirement. But the most telling term is ‘occupational’; this indicates that these objective, verifiable requirements must concern job-related skills and aptitudes. Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991).
A "safety defense" may be used to constitute an employer’s BFOQ defense, and has been ruled by two Connecticut courts that it may be the sole, legitimate, nondiscriminatory reason. CHRO v. General Dynamics Corp., supra; General Dynamics Corporation, Electric Boat Division v. CHRO, ex. Rel Gladstone, 1993 WL 307663 (Conn.Super.Aug. 6, 1993) (No. 524412) Hurley, J. It is the employer’s burden to prove the safety defense. CHRO v. General Dynamics Corp., supra. The employer does so by demonstrating "a reasonable probability of substantial harm to the [applicant] or others with respect to the specific jobs in issue." Id. The federal courts provide additional guidance in its use.
The Connecticut District Court in Kuntz v. City of New Haven, 1993 WL 276945 (D.Conn.1993) (CIV. No. N-90-480 (JGM)) Margolis, J., was first for this state to set forth the requirements of the safety defense:
The safety defense has been given narrow scope. It must be tailored to the individual characteristics of the employee in relation to specific, legitimate job requirements. The risk of injury to the employee must be imminent and substantial, and the mere possibility of future injury is not sufficient. Id., citing Ackerman v. Western Electric Co., 643 F.Supp. 836, 848 (N.D.Cal.1986), aff’d, 860 F.2d 1514 (9th Cir.1988).
These requirements were applied to the prison setting in Motta v. Meachum, discussed at length above, where the Respondent was the Department of Correction, as well. The court determined that the plaintiff-prison counselor’s exposure to inmates posed a danger to herself, her co-employees, and to other inmates, even in the administrative offices of a prison. Motta at 117. It ruled, using the terminology set forth in Kuntz, "[T]he threat is far from remote—it is not a "mere possibility," but instead is "imminent and substantial." Id. It further ruled that her suggested accommodations of solely administrative work or solely first floor work were unreasonable and would pose an undue hardship to the Respondent. Id.
The similarities between the Motta case and the instant matter are striking. The Respondent has also raised the safety defense here. Contrary to the Complainant’s argument, the Respondent did consider the individual characteristics of the Complainant in that it ordered an individualized medical examination of her. It requested Dr. Erdil to evaluate her pursuant to the job requirements of a CFSS, which is a hazardous duty position. Dr. Erdil did such an examination, and determined that her condition had changed from her initial examination, and further testing would be necessary using a stress test. He also looked to the Complainant’s own physician for guidance in evaluating her condition. As stated earlier, even the Complainant’s physician, who noticeably did not testify at the public hearing, wrote to Dr. Erdil that her physical condition ruled out occupational activity. Dr. Erdil’s stress test showed the poor physical condition of the Complainant. Measured against the job description in effect as of 1987, as discussed above, good physical condition is a requirement of the position. Clearly, the Complainant’s individual characteristics deduced from her medical examination by Dr. Erdil and her own doctor’s conclusions forwarded to Dr. Erdil, led Dr. Erdil to determine that she could not safely perform her job functions, which included protecting herself, her co-workers and the inmates by running, walking quickly, assisting staff, quelling disturbances, or physically restraining inmates—all activities which require physical exertion. The Respondent logically based its decision to discharge the Complainant on Dr. Erdil’s recommendation. The Complainant, herself, testified that she could not run. She also would be unable to walk quickly in the event of an emergency. Just as in Motta, in which the court ruled that the exposure to inmates posed an "imminent and substantial" risk, the Complainant’s exposure as a food service supervisor is even greater, which increases the risk so much more. Unlike the plaintiff in Motta, she is not meeting with one inmate at a time, but is required to supervise approximately 20 at a time, in a part of the prison known to be one of the most dangerous, as testified by Complex Warden Murphy. The Respondent produced several witnesses who set forth in detail the many dangerous incidents that can occur and do occur in the kitchen, the many assaults that can and have occurred against staff and other inmates and, specifically, the dangerous incidents that can occur and have occurred to persons holding the exact position as the Complainant. Based thereon, it is here determined that the Respondent has met its burden of proof with respect to legitimate safety concerns. Therefore, I find the Respondent has shown: (1) a reasonable probability of substantial harm to the Complainant, herself, her co-workers and the inmates she supervised as a CFSS-2 if she remained employed; and (2) the Complainant’s physical disabilities further prevent her from performing her job, as the above listed duties are requirements of the position. This showing meets the exceptions set forth within General Statutes §§ 46a-60(a)(1) and 46a-70(a). Consequently, the Respondent has proven by a preponderance of the evidence a legitimate reason for its discriminatory actions.
While General Statutes § 46a-60(a) does not have language setting forth a duty on the part of the employer to provide reasonable accommodation, the Connecticut courts as well as decisions rendered by the Commission all recognize such a duty. See Ezikovich v. CHRO, 1998 WL 258182, (Conn.Super.), Docket No. CV 970567872, May 11, 1998 (DiPentima, J.); Kalanquin v. CHRO, 1998 WL 57767 (Conn.Super.), Docket No. CV 970567909, February 3, 1998 (DiPentima, J.); Silhouette Optical, Ltd. v. CHRO, (Conn.Super.), 10 Conn.L.Rptr. 599, January 27, 1994 (Maloney, J.); Joseph Carter v. C.N. Flagg Power, Inc., No. 8840227, February 28, 2000, FitzGerald, HRR; Sharyn L. Grant v. Yale-New Haven Hospital, No. 9530477, October 13, 1999, Knishkowy, HRR; Duarte v. Hamilton Standard, No. 9610553, September 30, 1999, Giliberto, HRR.
Although the Complainant states that she did not need one, the Respondent argues that there was no reasonable accommodation that could overcome the Complainant’s disabilities. Its witness, Maria Houser testified that it would be ridiculous to hire another person to do the Complainant’s responsibilities because it would be paying two people to do the job of one. For the reasons set forth under the federal analysis set forth above, it is here determined to be an undue hardship on the Respondent and an unreasonable accommodation under state law as well.
The Complainant states in her reply brief that the Respondent improperly takes into account the Complainant’s own safety in concluding that she was a threat to herself. "Such a view is not only paternalistic but not allowed under current disability law." See Reply Brief, page 4. She cites an Illinois district court case, Kohnke v. Delta Airlines, Inc., 932 F.Supp. 1110 (N.D.Ill.1996) which held that an individual’s threat to himself could not be considered in evaluating whether an individual posed a direct threat to safety in the workplace. However, the Second Circuit affirmed a New York district court case which did evaluate and consider whether an individual posed a threat to his own safety in Serrapica v. City of New York, 708 F.Supp. 64, 73 (S.D.N.Y.), aff’d, 888 F.2d 126 (2d Cir.1989). Also, the EEOC’s own regulations allow for consideration of the individual’s safety. See 29 C.F.R. § 1630.2(r). However, even without considering the Complainant’s own safety, her job functions also required her to assist her co-workers, the custodial staff, as well as restrain and protect other inmates. Therefore, her risk to others still supports the safety defense, whether or not she posed a risk to herself, and this argument must fail.
The Complainant also takes issue, under state law, with the chronology of the Respondent’s less arduous duty search and its decision to discharge the Complainant. Specifically, the Complainant charges that the Respondent improperly ordered the search after already deciding to separate her from state service, which raises an inference of discrimination. The Respondent argues that the search was necessarily requested after her separation because they first had to decide whether she could perform the duties of her position. When it was determined she could not, then the search was requested.
General Statutes § 5-244 requires the transfer to less arduous duties or separation from state service to be conducted "[w]hen an employee has become physically or mentally incapable of, or unfit for, the efficient performance of the duties of his position." Presumably, this means that a determination must first be made whether the employee can perform her job or not. If not, then she may be transferred. The evidence shows that the Complainant’s medical leave was effective August 24, 1996 (Exh. R-16). Dr. Erdil’s reports, dated September 9 and 16, 1996, respectively, conclude that she was not qualified for the position. (Exh. R-20) A less arduous duties search was initially requested on September 19, 1996 (Exh. R-22). The Respondent’s decision to separate her from state service was conveyed to the Complainant on November 18, 1996, after the less arduous duties search had been completed. (Exh. C-21) Based on these facts, I find no inference of discrimination. First, the Complainant was placed on medical leave due to her supervisor’s notations in her performance review and the fact that she possessed a handicapped sticker. The search was not conducted until Dr. Erdil reported, after an individually tailored medical examination and inquiry to the Complainant’s physician that she could not perform her current job. I see no evidence of wrongdoing on the part of the Respondent.
Finally, the Complainant also points to the fact that the initial report, dated September 9, 1996 stated that she could not perform the duties of a "correction officer," which also, it is alleged, raises an inference of discrimination since this was not even her correct job title. It is here determined that Dr. Erdil made a simple clerical error, which was corrected after the Respondent pointed it out to him in his September 16, 1996 report. (Exh. R-20) I do not interpret this to mean that the Complainant was evaluated based on the wrong job description, nor do I interpret this to be evidence of the Respondent attempting to "cover its tracks." The Complainant’s stress test results revealed her poor exercise capacity and led Dr. Erdil to recommend modified duty and limited walking which render her ineligible for the CFSS-2 position.
Based on the above, the Complainant has failed to set forth a prima facie case under the ADA and the Rehabilitation Act and therefore those claims must fail. Under state law, the Complainant has established a prima facie case, however the Respondent has met its burden in proving the safety defense and showing that the Complainant was prevented from performing her duties. Therefore, judgment must enter for the Respondent and the Complaint is dismissed.
V. Conclusions of law
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 9th day of March, 2000.
Hon. Lisa B. Giliberto
Human Rights Referee
C: Mary L. Johnson
Barbara G. Hager, Esq.
C. Joan Parker, Assistant Commission Counsel II
Department of Correction
Lynn D. Wittenbrink, Assistant Attorney General
Raymond Pech, Deputy Commission Counsel