Opinion
No. CV 07 5011977
November 29, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
FACTS
On June 20, 2007, the plaintiff, Steven Cimino, filed a one-count complaint against his employer, the defendant, Pratt Whitney. The complaint includes the following allegations. The plaintiff suffers from severe obstructive sleep apnea, which causes him to be excessively tired and to require naps throughout the day. In February 2004, the plaintiff took short-term disability leave due to his condition. Per his doctor's orders, the plaintiff sought a reasonable accommodation from the defendant in the form of either a schedule that required that he drive only during daylight hours, as he had fallen asleep at the wheel while driving in darkness, or an "alternative work week" schedule, which would allow him to work three long shifts per week and rest during his off days. The defendant refused to provide either accommodation. According to the plaintiff, the defendant's refusal constitutes a violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60(a)(1), and he has suffered damages in the form of lost wages and emotional distress. On September 13, 2007, the defendant filed a motion to strike the complaint on the ground that under Connecticut law, employers are not required to provide reasonable accommodations to their employees. The defendant included a memorandum of law in support of its motion. On October 17, 2007, the plaintiff filed its opposition to the motion.
According to the plaintiff, he initially filed a claim with the Connecticut Commission on Human Rights and Opportunities, which issued a release of jurisdiction.
DISCUSSION
"The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendant contends that unlike the Americans with Disabilities Act (the ADA), 42 U.S.C. § 12101 et seq., CFEPA plainly and unambiguously does not require that employers must provide reasonable accommodation to their employees. Moreover, according to the defendant, a finding that CFEPA lacks a reasonable accommodation requirement would yield reasonable and workable results, allowing CFEPA's antidiscrimination provisions to "operate soundly." The plaintiff counters that the defendant has not explained how the absence of a reasonable accommodation requirement could yield reasonable and workable results, and that if the courts adopted the defendant's interpretation of CFEPA, the results would in fact be absurd. The plaintiff also asserts that no court has ever held that CFEPA does not contain a reasonable accommodation requirement.
Numerous superior courts have addressed whether employers are required to provide reasonable accommodations under the CFEPA. Those courts have either answered the question in the affirmative, or assumed for purposes of their analyses that such a requirement exists. For example, in Trimachi v. Connecticut Workers' Compensation Commission, Superior Court, judicial district of New Haven, Docket No. CV 97 0403037 (June 14, 2000, Devlin, J.) (27 Conn. L. Rptr 469, 474), the court denied a motion to strike a cause of action alleging failure to provide reasonable accommodation. The court reasoned that "no statute should be construed in a manner that would thwart its purpose," and that "failure to impose upon state actions so prominent a federal requirement as the duty to reasonably accommodate would vitiate the remedial purposes of the Connecticut antidiscrimination statutes." Id., 473. Three years later, in Conte v. New Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 02 0466475 (May 15, 2003, Skolnick, J.), the court denied a motion to strike a similar CFEPA claim. In that case, the defendant argued that the plaintiff never requested an accommodation; the court disagreed, finding that the plaintiff had adequately alleged failure to accommodate. Id.
The Trimachi court also stated: "Decisions by the Commission on Human Rights and Opportunities have consistently held that under state law an employer has a duty to reasonably accommodate a disabled employee. In Frederick v. Bridgeport Hospital, CHRO No. 8720151 (October 16, 1992), the hearing officer unequivocally stated: `Implicit in Connecticut's prohibition against discrimination, based on physical or mental hardship, is a duty of reasonable accommodation. Without such implication, the protections of the statute should be largely meaningless. By the very nature of the classification, otherwise qualified disabled persons may require some sort of an accommodation in order to work.' See also CHRO ex rel. Grant v. Yale-New Haven Hospital, CHRO No. 9530477 (October 13, 1999); CHRO ex rel. Duane v. United Technologies Corp., Hamilton Standard Division, ruling on motion to dismiss, CHRO No. 9610553 (September 30, 1999) (CFEPA requires employer to reasonably accommodate disabled employees)." Trimachi v. Connecticut Workers' Compensation Commission, supra, 27 Conn. L. Rptr. 473-74. Commission decisions since 2000 have not deviated from this rule.
The court further noted that "[t]he vast majority of the states have enacted statutes requiring reasonable work accommodation. Even when it is not explicitly stated in the applicable statutes in a few states, courts have inferred a duty of reasonable accommodation. See, e.g., Jenks v. Avco Corp., 490 A.2d 912, 916 (Pa.Super. 1985) (finding Pennsylvania Human Relations Act requiring reasonable accommodation even though not explicitly stated therein); Plourde v. Scott Paper Co., 552 A.2d 1257, 1261-62 (Me. 1989) (finding state law requiring reasonable accommodation even though there is no statutory provision); Austin State Hospital v. Kitchen, 903 S.W.2d 83, 87 (Tex.App-Austin 1995) (finding statutes requiring reasonable accommodation even though not explicitly stated therein). Connecticut should be no exception, especially when the Connecticut antidiscriminatory statutes are at least coextensive with their federal counterparts. See General Statutes § 46a-58." Id., 474.
Soon after Conte, in Connecticut Commission on Human Rights Opportunities v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 02 0514467 (July 17, 2003, Owens, J.), the court observed that "General Statutes § 46a-60(a)(1) does not specifically state a duty of reasonable accommodation, although some Connecticut courts have held that § 46a-60(a)(1) imposes that duty." It then stated that it "d[id] not believe that the record contains substantial evidence that the defendants failed to reasonably accommodate [the plaintiff's] mental illness in this case." Id.; see also Curry v. Allan S. Goodman, Inc., Superior Court, judicial district of Hartford, Docket No. CV 02 0817767 (November 18, 2004, Stengel, J.) (finding that although a duty to provide reasonable accommodation existed, the plaintiff could not perform essential job functions even with the requested accommodation); McBrearity v. Connecticut Commission on Human Rights Opportunities, Superior Court, judicial district of Litchfield, Docket No. CV 95 0067609 (September 19, 1995, Pickett, J.) (noting that "[i]t is an open question as to whether Connecticut law imposes a burden of reasonable accommodation on an employer," and assuming, for purposes of its analysis, that reasonable accommodation is required).
Although the Appellate Court reversed that decision "because, through no evident fault of the [superior] court, the confusion caused by counsel's actions effectively deprived a party of the right to oral argument," see Curry v. Allan S. Goodman, Inc., 95 Conn.App. 147, 149, 895 A.2d 266 (2006), on remand, the Superior Court ratified its November 18, 2004 decision. See Curry v. Allan S. Goodman, Inc., Superior Court, judicial district of Hartford, Docket No. CV 02 0817767 (July 7, 2006, Stengel, J.).
The federal courts' interpretations of CFEPA have been less uniform than those superior courts. Several district courts have followed the state cases either finding or assuming a reasonable accommodation requirement. See, e.g., Gomez v. Laidlaw Transit, Inc., 455 F.Sup.2d 81, 87 n. 4 (D.Conn. 2006) ("Because defendant does not challenge the `discrimination' element of this claim, [the court] will assume that the CFEPA imposes a duty to accommodate and that failure to accommodate constitutes discrimination"); Hill v. Pfizer, Inc., 266 F.Sup.2d 352, 364 (D.Conn. 2003) (noting that "[t]he CFEPA has also been interpreted to require an employer to reasonably accommodate disabled employees," and finding "genuine issues of material fact as to . . . whether defendant failed to accommodate [plaintiff's] disability"). One district court recently disagreed with these interpretations. In Henderson v. United Parcel Service, 2007 WL 906151 (D.Conn. March 23, 2007), the plaintiff contended that he would have been qualified for a small sort job at UPS if the company had made reasonable accommodations for him. Citing Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 671 A.2d 349 (1996), and Beason v. United Technologies Corp., 337 F.3d 271 (2d Cir. 2003), the court found it unlikely that the CFEPA requires employers to make reasonable accommodations. Henderson v. United Parcel Service, supra, *3. The defendant in the current case cites all of these cases, namely, Henderson, Levy, and Beason, for the proposition that no duty to provide reasonable accommodation exists.
Both the Henderson court's and the defendant's reliance on Levy is misplaced. Levy stated the following: "Under federal law, there are four general theories of employment discrimination: disparate treatment, adverse or disparate impact, perpetuation into the present of the effects of past discrimination, and failure to make a reasonable accommodation . . . To date, in Connecticut, we have recognized the disparate treatment and adverse impact theories of employment discrimination." Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 103-04. As the plaintiff correctly notes, the Levy court expressed no opinion whatsoever as to whether reasonable accommodation was required. Indeed, a footnote in Henderson makes clear that its interpretation that Levy somehow leans in the direction of no duty to accommodate is by no means universal. See Henderson v. United Parcel Service, supra, 2007 WL 906151, *3 n. 6 ("The Court notes that the question of whether CFEPA requires employers to make reasonable accommodations for disabled employees is unsettled. While the Supreme Court of Connecticut indicated in 1996 that reasonable accommodation may not be required . . . other lower Connecticut courts have since inferred such a duty under CFEPA") (citation omitted). Accordingly, Levy cannot serve as the basis for a finding that no reasonable accommodation requirement exists.
The court had previously recognized this unresolved issue in Adriani v. Commission on Human Rights Opportunities, 220 Conn. 307, 320 n. 12, 596 A.2d 426 (1991) ("We do not address whether provisions of General Statutes § 46a-60(a)(1) . . . are coextensive with the provisions of the federal statute, especially the `reasonable accommodation' duty under that statute").
Reliance on Beason v. United Technologies Corp., supra, 337 F.3d 271, for the position that no duty to accommodate exists under CFEPA is also questionable. The Beason court held that unlike a person suing under the ADA, an individual has no cause of action under CFEPA for perceived physical disability discrimination. Id., 279. It noted that although the ADA was not enacted until 1990, many years after the 1973-1975 enactment of and alterations to the physical disability component of the CFEPA, the ADA's "definition of disability borrow[ed] heavily from a definition contained in the Rehabilitation Act which was enacted by Congress in 1973 and amended in 1974 . . ." Id., 277. Accordingly, the court opined, "[g]iven that the definition of disability used by the ADA essentially pre-dates the definition of physical disability promulgated by the Connecticut General Assembly for the CFEPA, the General Assembly, had it wished to do so, could have adopted the ADA definition. The fact that the General Assembly chose not to adopt that language readily supports an inference that the Connecticut legislature appreciated the scope of the ADA definition and intended the CFEPA definition to be different." Id., 277-78.
The court later elaborated on this point, stating:
[T]he Rehabilitation Act's definition of a handicapped individual — the precursor to the modern ADA definition of disability — was approved by Congress in 1974, one year before Connecticut enacted the CFEPA definition of physical disability that, in substance, has survived until this day. Significantly, the Rehabilitation Act's definition, which originated the federal requirement that an impairment substantially limit a major life activity in order to qualify as a disability, also amended the Act to extend its protections to individuals "regarded as having" such a substantially limiting impairment.
Consistent with the notion that the Connecticut General Assembly, if it had wanted to do so, could have adopted the Rehabilitation Act's "substantially limit a major life activity" language, we similarly think that the Connecticut legislature had that been its purpose could have expressly adopted a cause of action for perceived physical disability discrimination. The absence of any reference to such a claim in the CFEPA strongly suggests that the present difference between Connecticut and federal law with respect to "regarded as" physical disability discrimination "was purposeful and is meaningful."
(Citation omitted.) Id., 280.
The defendant suggests that just as the legislature's failure to adopt the "regarded as" language for the physical disability component of CFEPA was deemed to be intentional in Beason, the legislature's failure to adopt the ADA's "reasonable accommodation" language in the CFEPA should also be deemed intentional. The foregoing passages from Beason, however, provide no insight into why the Connecticut legislature did not use the ADA's "reasonable accommodation" language. The defendant points to no "reasonable accommodation" language in either the 1973 or 1974 versions of the Rehabilitation Act for the Connecticut legislature to either adopt or reject as it drafted the disability elements of CFEPA.
Additionally, the plaintiff argues that the current case involves claims of actual disability, not perceived disability, rendering Beason irrelevant. Furthermore, whether Beason was correctly decided is debatable. See Graham v. Boehringer Ingelheim Pharmaceuticals, Superior Court, judicial district of New Haven, Docket No. CV 04 0488908 (October 19, 2007, Corradino, J.) ("There are problems with the position adopted by the federal courts [such as the Beason court] in interpreting [CFEPA]").
Regarding Henderson v. United Parcel Service, supra, 2007 WL 906151, the third case relied upon by the defendant for the proposition that CFEPA does not include a reasonable accommodation requirement, the plaintiff contends that the Henderson plaintiff's claim failed only because no reasonable accommodation would have allowed the plaintiff to perform essential job functions. The plaintiff's argument is unpersuasive, as the court stated the following: "Henderson alternatively argues that he would have been qualified for the small sort job if UPS had made reasonable accommodations for him. This argument is also unavailing, because CFEPA likely does not currently require employers to make reasonable accommodations for disabled employees . . . Even assuming that Connecticut law does require employers to make reasonable accommodations for disabled employees, however, Henderson's claim still fails as a matter of law because he presented no evidence that he would have been qualified for a small sort job with reasonable accommodation." (Citations omitted.) Id., *3-4. Nevertheless, because the Henderson court's reasoning is based solely on problematic readings of both Levy and Beason, Henderson has no bearing on the court's analysis.
The defendant contends that General Statutes § 1-2z, known as the "plain meaning rule," mandates the conclusion that no reasonable accommodation requirement exists. Section 1-2z states: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." See also Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650-51, 931 A.2d 142 (2007) (explaining the role of § 1-2z in statutory construction). According to the defendant, CFEPA is plainly and unambiguously devoid of any reasonable accommodation language, and an interpretation that it does not allow a cause of action for reasonable accommodation would not yield absurd or unworkable results. This court believes that contrary to the defendant's claim, an interpretation that CFEPA lacks a reasonable accommodation requirement would yield absurd results, and the legislative history supports the conclusion that Connecticut lawmakers intended CFEPA to cover reasonable accommodation.
Although § 1-2z requires courts to assess the plain meaning of a text, when that meaning runs counter to legislative intent, courts have readily adopted more reasonable interpretations. For example, in Blasko v. Commissioner of Revenue Services, 98 Conn.App. 439, 910 A.2d 219 (2006), which addressed whether the plaintiffs were entitled to use a certain tax credit in the 1998 taxable year, the court determined that "on its face, [the statute at issue] appears to create a mathematical impossibility . . . As such, we are left with what appears to be an absurd or unworkable result, and, therefore, we look to extratextual evidence to determine the meaning of the statute. See General Statutes § 1-2z." Id., 454-55. It later stated the following: "[W]e are left with the peculiar situation in which a statute, which the legislature clearly enacted to provide a mandatory credit to taxpayers, creates a profound probability that no taxpayer will ever be entitled to recoup such a credit, as a result of its flawed mechanics. We conclude that this flaw purely was a manifestation of legislative inadvertence and runs counter to the legislature's clear attempts to avoid such a situation. Therefore, to follow blindly the wording of the statute without regard to the obvious intention of the legislature would create an absurd result in accord with neither established principles of statutory construction nor common sense." Id., 457.
Similarly, here, the Connecticut legislature clearly enacted CFEPA for the purpose of eliminating employment discrimination. As Representative Robert Satter explained, "[t]he noble purpose of this bill . . . is to create an effective machinery in this state for the elimination of discrimination in employment." 8 H.R. Proc., Pt. 12, 1959 Sess., p. 2584, remarks of Representative Robert Satter.
In order for CFEPA to be effective and workable as the legislature intended it to be, employees must have legal options when employers fail to provide them with reasonable accommodations to perform their jobs. See Trimachi v. Connecticut Workers' Compensation Commission, supra, 27 Conn. L. Rptr. 473 (noting that a finding of no reasonable accommodation requirement would "vitiate the remedial purposes of the Connecticut antidiscrimination statutes"); cf. Graham v. Boehringer Ingelheim Pharmaceuticals, Superior Court, judicial district of New Haven, Docket No. CV 04 0488908 (October 19, 2007, Corradino, J.) ("Without even going to the definitional statute, § 46a-51, could it be said that an employer cannot engage in employment discrimination because of a `past' (as opposed to a present and ongoing) mental disability but there is no bar to discrimination based on `perceived' mental disability [under the CFEPA]? Such a result would be incongruous with any rational legislative purpose"). Otherwise, as the plaintiff argues, an employee who suddenly required the use of a wheelchair would have no recourse if his employer refused to provide an inexpensive ramp enabling the employee to access the building, and instead discharged him, presumably for failing to report to work. Such a result would be "absurd," and "in accord with neither established principles of statutory construction nor common sense." Blasko v. Commissioner of Revenue Services, 98 Conn.App. 457; see Southern New England Telephone Co. v. Cashman, supra, 283 Conn. 653 ("When more than one construction [of a statute] is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results"). Therefore, although CFEPA does not on its face outline a duty to provide reasonable accommodation, General Statutes § 1-2z does not preclude the courts from finding that such a duty exists. This court is in agreement with the Connecticut Superior Courts that have been presented with this issue in the past, all of which have found that CFEPA does require an employer to make reasonable accommodations.
For the foregoing reasons, the court finds that a reasonable accommodation cause of action exists under CFEPA. The defendant's motion to strike is denied.