Opinion
No. CV 09 4009597
April 22, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #128
FACTS
On May 28, 2009, the plaintiff, Joseph Tatro, filed a five-count complaint against the defendant, Cascades Boxboard Group Connecticut, LLC, for claims arising out of the plaintiff's employment relationship with the defendant and the defendant's treatment of the plaintiff after the plaintiff suffered injuries in August 2007. In his complaint, the plaintiff alleges a violation of the Connecticut Workers' Compensation Act, disability discrimination in violation of the Connecticut Fair Employment Practices Act (CFEPA), age discrimination in violation of the CFEP and retaliation in violation of the CFEPA and invasion of privacy.
On August 19, 2009, the defendant filed a motion strike counts two and four of the plaintiff's complaint. It moves to strike count two, the disability discrimination count, on the ground that the plaintiff has failed to plead facts that would establish that the plaintiff was a qualified individual with a disability who could perform the essential functions of his job with or without a reasonable accommodation. It moves to strike count four, a claim of retaliation under the CFEPA, on the ground that the plaintiff failed to exhaust his administrative remedies as he did not file an administrative charge based on allegations of retaliation with the commission on human rights and opportunities prior to commencing this law suit, thereby denying the court subject matter jurisdiction. Alternatively, the defendant moves to strike count four on the ground that the plaintiff has failed to state a prima facie case of retaliation. The defendant filed a memorandum in support and attached as an exhibit the plaintiff's affidavit of illegal discriminatory practice, which was filed with the commission on human rights and opportunities. On September 22, 2009, the plaintiff filed a memorandum in opposition to the motion to strike. The defendant filed a reply brief on January 28, 2010. The matter was heard at short calendar on February 1, 2010.
"[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion . . . Nonetheless, `[a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party . . .' Practice Book § 10-29(a). A complaint includes all exhibits attached thereto." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). In the present case, the plaintiff did not attach any exhibits to his complaint. Further, he did not refer or rely upon the affidavit of illegal discrimination in his complaint. Accordingly, the court may not consider the exhibit when determining the merits of the defendant's motion to strike.
Counts two and four allege the following pertinent facts. The plaintiff commenced work on January 3, 1994, as a millwright with the defendant's predecessor. After a series of acquisitions, the defendant became the plaintiff's employer. The defendant employs more than twenty employees and is subject to the CFEPA.
The plaintiff is over sixty and is physically disabled within the meaning of General Statutes § 46a-51(15) in that he suffers from a chronic physical handicap, infirmity or impairment and the defendant perceived him as suffering from such a handicap, infirmity or impairment. On April 26, 2000, the plaintiff sustained a workplace injury to his back, which has restricted his ability to climb for years. As a result of his back injury, the plaintiff sought workers' compensation benefits. Ultimately, the plaintiff was able to return to work and perform his job, with an accommodation for his climbing restriction.
On August 13, 2007, the plaintiff sustained another workplace injury. While attempting to repair a conveyor belt, the plaintiff injured his ribs. He reported his injury to his supervisor and the company's doctor, Dr. Paul H. Deutsch, and was told that he should go back to work. The following day, after feeling severe pain in his ribs, the plaintiff left work and went to a hospital where x-rays were taken and it was determined that the plaintiff had fractured his ribs. The plaintiff took a medical leave of absence and pursued a claim for workers' compensation.
On September 25, 2007, the plaintiff's doctor, Dr. Salman Zafar, wrote a letter stating that the plaintiff could return to work on October 1, 2007, but the defendant refused to allow him to return. On October 9, 2007, the defendant's human resources director wrote a memo stating that the plaintiff was suspended pending an investigation and that the plaintiff would have to undergo a full functional capacity exam that would be coordinated by Deutsch. On October 27, 2007, the plaintiff underwent the full functional capacity exam, and even though the results indicated that the plaintiff was able to return to work, the defendant still refused to allow the plaintiff to return. Instead, the defendant and Deutsch required the plaintiff to undergo additional intrusive medical examinations, tests and inquiries. The defendant threatened to terminate the plaintiff's employment if he did not cooperate with the company's demands.
In December 2007, the defendant required the plaintiff to undergo a stress test and a pulmonary functions test. The defendant used the results of these tests to conclude that the plaintiff had issues related to his cardiovascular health that prevented him from performing his job. In February 2008, the plaintiff provided the defendant with a comprehensive medical report from a cardiologist that stated that the plaintiff had a cardiovascular disease, diabetes and hypertension. The report did not state or otherwise indicate that the plaintiff was unable to return to work or perform his job. Deutsch reviewed the cardiologist's report and wrote his own report, concluding that the plaintiff was unable to return to work.
On March 3, 2008, the plaintiff provided the defendant from another note from Zafar, which stated that the plaintiff was medically stable to go back to work. Four other doctors agreed with Zafar's findings. Deutsch disagreed with Zafar's conclusion, and on the basis of Deutsch's opinion, the defendant continued its refusal to allow the plaintiff to return to work. In April 2008, the plaintiff again provided the defendant with another note from Zafar, reiterating that the plaintiff was able to return to work. Deutsch disagreed and the defendant refused to permit the plaintiff to return.
Around this time, the defendant began sending harassing letters to the plaintiff, which were delivered to his home by a state marshal. Further, the defendant began to pressure the plaintiff to resign his employment with the company. The defendant insisted that the plaintiff undergo another independent medical examination and threatened that it would have no choice but to terminate the plaintiff's employment if he failed to cooperate.
On May 27, 2008, the plaintiff filed a charge of discrimination with the commission on human rights and opportunities alleging discrimination on the basis of disability and age. On May 11, 2009, the commission issued a release of jurisdiction to the plaintiff authorizing him to commence a civil action under the CFEPA. While the charge was pending, the plaintiff conceded to the defendant's request and underwent an independent medical examination on June 17, 2008. The results of the examination did not prohibit the plaintiff from returning to work, with a reasonable accommodation. However, the defendant still refused to allow the plaintiff to return to work, and it continued to threaten to terminate the plaintiff's employment.
The defendant has unlawfully mandated that the plaintiff undergo repeated invasive medical tests and examinations that were not needed and were broader and more intrusive than necessary. It has refused to engage in a good faith interactive process with the plaintiff to determine whether he can return to work, with or without a reasonable accommodation. It has permitted other employees to perform the plaintiff's job while he has been denied the right to return to work, and these other employees are substantially younger than the plaintiff, are not disabled or regarded as disabled and have not reported workers' compensation injuries. The plaintiff has been treated less favorably than other employees who are younger, not disabled or regarded as disabled and who have not reported workers' compensation injuries. The defendant has engaged in a pattern and practice of discriminating against individuals who suffer from serious health conditions, who are disabled or who report workers' compensation injuries. The defendant has also engaged in a pattern and practice of discriminating against older employees. The defendant, in combination with Deutsch, has intentionally violated the rights of the plaintiff and other employees who report workers' compensation injuries or who suffer from chronic medical conditions or impairments or who are regarded as suffering from such impairment.
The defendant has discriminated against the plaintiff on the basis of disability in violation of General Statutes § 46a-60 et seq., and it has acted with malice or reckless indifference to the plaintiff's rights, or it has intentionally and wantonly violated the plaintiff's rights. Further, the defendant has retaliated against the plaintiff for opposing the defendant's discriminatory employment practice and for filing a complaint with the commission on human rights and opportunities. As a result, the plaintiff has suffered damages, including lost wages, lost employment benefits, emotional distress, loss of enjoyment of life and the depletion of personal savings.
DISCUSSION Motion to Dismiss
Although the defendant filed a motion to strike, it has raised the issue of this court's subject matter jurisdiction with respect to the plaintiff's retaliation claim in count four. "[The question of subject matter jurisdiction] . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). Accordingly, the court will begin its analysis by determining whether it has jurisdiction over count four.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). It is "[t]he plaintiff [who] bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
In support of its argument that the court lacks subject matter jurisdiction over the retaliation claim, the defendant argues that the plaintiff failed to exhaust his administrative remedies or secure a right-to-sue letter with respect to his retaliation claim. In support of this argument, the defendant relies on the allegations contained in the plaintiff's complaint and on the affidavit of illegal discriminatory practice filed by the plaintiff with the commission on human rights and opportunities. The defendant argues that because the plaintiff filed a charge of discrimination on the basis of disability and age only, the release-to-sue letter issued by the commission on human rights and opportunities could only be for these discrimination claims and not for a claim of retaliation. Further, the defendant argues that the affidavit of illegal discriminatory practice demonstrates that the plaintiff did not seek a remedy for retaliation as the plaintiff did not mark the box for a claim of retaliation.
While the court cannot consider the affidavit of illegal discriminatory practice when ruling on the defendant's motion to strike, the exhibit may be considered as evidence for the limited purpose of determining whether the court has subject matter jurisdiction over count four.
The plaintiff contends, however, that he did sufficiently exhaust his administrative remedies. In support of this contention, the plaintiff relies on federal case law which has held that the requirement to exhaust administrative remedies under the CFEPA is satisfied with respect to retaliation claims if the claim is reasonably related to the allegations of discrimination that were previously filed with the commission on human rights and opportunities. See Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003); Dembinski v. Pfizer, Inc., 628 F.Sup.2d 267 (D.Conn. 2009); Soares v. University of New Haven, 175 F.Sup.2d 326 (D.Conn. 2001). The defendant maintains this "reasonably related" exception to the exhaustion requirement is not recognized by Connecticut state courts, and further, even if the court were to recognize this exception, the plaintiff's retaliation claim does not meet the "reasonably related" standard.
"Under [the exhaustion doctrine], a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009). "The doctrine of exhaustion is nevertheless subject to certain narrowly circumscribed but . . . recognized exceptions." Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, 578 A.2d 1025 (1990). One such exception permits the court to exercise jurisdiction over a charge that was not presented during an administrative proceedings as long as it is reasonably related to the conduct complained of during the administrative proceedings, such that the claim could have been reasonably expected to grow out of the original charges. Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009).
"In drafting and modifying the Connecticut Fair Employment Practices Act . . . our legislature modeled that act on its federal counterpart. Title VII of the Civil Rights Act of 1964 . . . and it has sought to keep our state law consistent with federal law in this area." Id. "[I]n matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance." (Citations omitted.) Id. "The United States Court of Appeals for the Second Circuit `has recognized that [a] claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made . . . In this inquiry, the focus should be on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving . . . The central question is whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination on both bases . . . The reasonably related exception to the exhaustion requirement is essentially an allowance of loose pleading and is based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering.' (Citations omitted; internal quotation marks omitted.) Williams v. Housing Authority, 458 F.3d 67, 70 (2d Cir. 2006)." Id., 82-83. "This determination will in large part rest on . . . [the court's] determination of the plaintiff's pleadings, which is always a question of law for the court." (Internal quotation marks omitted.) Id., 83.
In the present case, the plaintiff's affidavit of illegal discriminatory practice filed with the commission on human rights and opportunities alleged, inter alia, a violation of General Statutes § 46a-60(a)(1). In his complaint filed with this court, the plaintiff has alleged an additional violation of retaliation under § 46a-60(a)(4). Section 46a-60(a)(1), as it is pertinent to the facts of this case, makes it discriminatory to refuse to hire or to discharge an employee because of the employee's age or physical disabilities. Section 46a-60(a)(4) provides that "[i]t shall be a discriminatory practice . . . [f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding [before the commission on human rights and opportunities]."
On the affidavit of illegal discriminatory practice, the plaintiff marked boxes regarding discrimination on the basis of age and physical disability. In explanation of the physical disability, the plaintiff distinguished between perceived disabilities, which included heart disease, vascular, high blood pressure and diabetes, and an actual disability, his pre-existing back injury. There is no reference to any other basis.
General Statutes § 46a-60(a)(1) provides: "It shall be a discriminatory practice in violation of this section [for an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness."
"The central question is whether the complaint filed with the commission gave that agency adequate notice to investigate the discrimination claimed in the present action." Ware v. State, supra, 118 Conn.App. 85. In his affidavit of illegal discriminatory practice filed with the commission, the plaintiff alleged that as of October 2007, after recovering from breaking his ribs, he was cleared by his doctor to return to work, but the defendant's company physician refused to accept his doctor's release and instead insisted upon additional testing. Further, he alleged that the defendant's refusal to reinstate him to his job, its failure to accept the medical evaluations of the plaintiff's doctor and its insistence that the plaintiff submit to a battery of tests constitutes harassment and discriminatory treatment based on his age and the defendant's perceptions of the plaintiff's medical disabilities. In his complaint before this court, the plaintiff alleges that after recovering from his injuries to his ribs, he was denied the right to return to work by the defendant's company physician, and that the defendant's refusal to permit him to return to work was as a result of the plaintiff's age or his perceived physical disabilities. He also alleged that the defendant "retaliated" against him because he opposed a discriminatory employment practice and because he filed a complaint with the commission on human rights and opportunities.
The plaintiff does not allege any specific retaliatory acts in his complaint and does not distinguish between discrimination committed by the defendant and retaliation. That is, the plaintiff does not allege that his employment was terminated because he filed a complaint with the commission on human rights and opportunities or opposed a discriminatory practice.
The court cannot conclude that the plaintiff's retaliation claim is so closely related to the allegations in his complaint to the commission that they would have been investigated by the commission. Nothing in the complaint to the commission gave the agency adequate notice to investigate a claim for retaliation. There were no allegations made before the commission that the plaintiff had opposed any discriminatory practice or had filed a complaint alleging a discriminatory practice prior to the defendant's refusal to permit him to return to work. Accordingly, the court dismisses count four for lack of subject matter jurisdiction.
Motion to Strike
The defendant moves to strike count two's disability discrimination claim on the ground that the plaintiff failed to allege facts to establish that he could perform the essential functions of his job with or without a reasonable accommodation. "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, supra, 262 Conn. 498. "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 294. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). Connecticut is a fact pleading state. Practice Book § 10-1 provides that "[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation. If any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement; and, if in the opinion of the judicial authority the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the judicial authority." Pursuant to the rules of practice, the plaintiff must have pleaded plain and concise statements of material facts which would set forth a claim for discrimination under General Statutes § 46a-60(a)(1).
Connecticut has recognized three general theories of employment discrimination: disparate treatment; adverse or disparate impact; and failure to make a reasonable accommodation. See Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103-04, 671 A.2d 349 (1996). "Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof: (1) the mixed-motive/ Price Waterhouse model . . . and (2) the pretext/ McDonnell Douglas-Burdine model." (Citation omitted.) Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 104. The plaintiff need only plead facts sufficient to bring a claim under one of these theories in order to maintain a cause of action for disability discrimination.
"The disparate impact theory applies to patterns and practices [that] are facially neutral but discriminatory as applied, and does not require evidence of subjective intent to discriminate." (Internal quotation marks omitted.) Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 n. 11, 671 A.2d 349 (1996).
To plead a reasonable accommodation claim, the plaintiff must allege facts that demonstrates that "(1) he is disabled within the meaning of the [statute], (2) he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiff's] disability, did not reasonably accommodate it." (Internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008).
In order to bring a claim under the Price Waterhouse disparate treatment framework, the plaintiff must allege that "he . . . is within a protected class and that an impermissible factor played a `motivating' or `substantial' role in the [defendant's] employment decision." Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 106.
"In the disability context, [to allege a claim] . . . for disparate treatment . . . under the McDonnell Douglas . . . framework . . . the plaintiff [must allege facts that demonstrates that]: (1) he suffers from a disability or handicap, as defined by the [applicable statute]; (2) he was nevertheless able to perform the essential functions of his job, either with or without reasonable accommodation; and that (3) the defendant took an adverse employment action against him because of, in whole or in party, his protected disability." (Internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 426.
In moving to strike count two, the defendant relies upon the Supreme Court's decision in Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 390, which held that to prevail on a claim based on failure to make a reasonable accommodation or on a disparate treatment claim under the McDonnell Douglas approach the plaintiff must produce enough evidence for a reasonable jury to find that the plaintiff was able to perform the essential functions of the job with or without a reasonable accommodation. Because the plaintiff has not alleged that he is capable of performing the essential functions of a millwright position with or without a reasonable accommodation, the defendant submits that count two should be stricken. The plaintiff, however, contends that because Connecticut has explicitly recognized multiple theories of discrimination, all of which involve different burdens of proof, it would be erroneous to require the plaintiff to plead the elements of a prima facie case required by each particular framework in order to state a claim for disability discrimination.
In determining whether it is appropriate to strike count two of the plaintiff's complaint, the court must be mindful of the well established rule that "grounds other than those specified [on the face of the motion] should not be considered by the trial court in passing upon a motion to strike." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). In the present case, the defendant has moved to strike count two on the ground that the plaintiff has not adequately alleged a cause of action under the reasonable accommodation theory or the McDonnell Douglas disparate treatment theory as the plaintiff has not alleged that he was able to perform the essential functions of his millwright position with or without a reasonable accommodation. The defendant has not, however, challenged the sufficiency of the count with respect to whether the plaintiff has adequately pleaded a cause of action for disability discrimination under the Price Waterhouse disparate treatment theory or the adverse impact theory. The defendant's ground for striking count two is therefore limited to the challenge that the plaintiff's allegations are insufficient under the reasonable accommodation theory and the McDonnell Douglas disparate treatment theory. Even if the court were to agree with the defendant and find that count two is legally insufficient to allege a cause of action under the theories, the court would be unable to strike the count because it is possible that the count alleges a discrimination claim under the Price Waterhouse disparate treatment theory or the adverse impact theory. The court cannot determine the merits of the defendant's motion because the defendant has not addressed whether count two is legally sufficient under the other theories for disability discrimination. Accordingly, the defendant's motion to strike count two is hereby denied.
CONCLUSION
For the foregoing reasons, count four is dismissed for lack of subject matter jurisdiction as the plaintiff has failed to exhaust his administrative remedies. Furthermore, the defendant's motion to strike count two is hereby denied.