Opinion
HHBCV176037028S
11-09-2017
Erik Tryon v. EBM-Papst, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION Re EBM-Papst, Inc.'s Motion to Strike (No. 102.00)
Lisa K. Morgan, J.
The plaintiff, Erik Tryon, brings this action against Kelly Services, Inc. (Kelly Services), a temporary staffing agency, and EBM-Papst, Inc. (EBM), the manufacturing company with whom Kelly Services placed the plaintiff as a temporary worker, for claims arising from the plaintiff's employment by Kelly Services and placement with EBM. Counts one and two allege retaliation by EBM and Kelly Services, respectively, in violation of Gen. Stat. § 31-290a of Connecticut's Workers' Compensation Act. Counts three and four allege disability discrimination by EBM and Kelly Services, respectively, in violation of Gen. Stat. § 46a-60(a)(1) of Connecticut's Fair Employment Practices Act.
More specifically, the plaintiff alleges the following facts. On or about February 10, 2016, Kelly Services hired him for a position with EBM. The plaintiff performed his job duties at EBM's work site without any significant injuries until April 22, 2016. At that time, the plaintiff injured his right wrist when he moved a machine part. As a result, the plaintiff was assigned light-duty work restrictions. On April 25, 2016, the plaintiff reported to EBM and provided it with his light duty work restrictions. In response, the plaintiff was told that EBM could not continue to provide him work within his light duty work restrictions and that it did not have any additional work to provide him. The plaintiff believes that this was false and that there was light duty work that was reasonably available to accommodate his work restrictions. After the plaintiff was informed by EBM that it had no work for him, he returned to Kelly Services and asked for new work placement, which he was initially given. Thereafter, the plaintiff learned that he would need surgery to address his wrist injury. The surgery was scheduled to occur on or about August 28, 2016. The plaintiff informed Kelly Services about his need for surgery and missed work accordingly. On September 6, 2016, the plaintiff was released back to work on a light-duty basis. The plaintiff provided Kelly Services with notice that he was able to return to work on a light-duty basis, but Kelly Services failed to offer the plaintiff additional work assignments.
In count one of the amended complaint, the plaintiff alleges that EBM retaliated against him by terminating his employment due to his exercise or attempted exercise of his rights under Connecticut's Workers' Compensation Act. In count three of the amended complaint, the plaintiff alleges that EBM failed to provide him with a reasonable accommodation and terminated his employment on account of his disability or perceived disability in violation of the Connecticut Fair Employment Practices Act. The plaintiff received a release of jurisdiction from the Connecticut Commission on Human Rights and Opportunities enabling plaintiff to bring this action. EBM moves to strike counts one and three of the amended complaint on the ground of legal insufficiency because the plaintiff was employed by Kelly Services, not EBM, and therefore, EBM cannot be liable as the plaintiff's employer under General Statutes § § 31-290a and 46a-60(a)(1). EBM also seeks to strike count three on grounds that the plaintiff's alleged wrist injury is not a physical disability as contemplated under the Fair Employment Practices Act and that the amended complaint does not contain sufficient allegations regarding reasonable accommodations or that the plaintiff was terminated based upon a physical disability.
In the original complaint, the plaintiff erroneously identified EBM as the defendant in both counts three and four. This was later corrected by the plaintiff when he filed an amended complaint in which court three was asserted against EBM and count four was asserted against Kelly Services. EBM moved to strike court four of the original complaint prior to the amendment because count four was duplicative of count three. As the error has now been corrected by the amended complaint and the allegations against EBM did not change, the court construes EBM's motion to strike as being directed solely to counts one and three of the amended complaint as those counts are now the only counts asserted against it.
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief may be granted." Practice Book § 10-39(a)(1). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
I
Plaintiff's Employer under Workers' Compensation Act and General Statutes § 31-292
EBM moves to strike count one of the amended complaint sounding in retaliation under the Workers' Compensation Act because EBM was not the plaintiff's employer under the Act, and General Statutes § 31-292 provides where the plaintiff was " lent" by a staffing agency such as Kelly Services to work for one of the staffing company's clients such as EBM, the plaintiff is exclusively an employee of the staffing agency, not the client, under the Act.
General Statutes § 31-292 provides: " When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hire by another." Notwithstanding the foregoing, the plaintiff claims that this court can find that he was EBM's employee for purposes of the Workers' Compensation Act under the " right to control" test or the " dual employment doctrine." The court disagrees.
Our Supreme Court explicitly rejected the right to control doctrine when an employee is " lent" to another person in Lucarelli v. Earle C. Dodds, 121 Conn. 640, 642, 186 A. 641 (1936). The Supreme Court held " [t]he right of direction and control of the employee is no longer the test in determining the question of liability for compensation, but such liability is in all cases imposed upon an employer who has 'temporarily lent or let on to hire to another the services of one of his employees [under § 31-292]." Id. Our appellate courts have not recognized a dual employment doctrine under the workers' compensation act. This court declines the plaintiff's invitation to do so in this case.
The plaintiff does not allege that he was employed by EBM. To the contrary, the allegations of the amended complaint are that he was hired by Kelly Services, not EBM, and that he continued to work for Kelly Services once EBM stopped providing him with work. On these facts, Kelly Services is deemed to be the employer of the plaintiff under General Statutes § 31-292 of the Workers' Compensation Act and EBM cannot be found liable as the plaintiff's employer. Consequently, count one of the amended complaint does not state a legally sufficient retaliation claim against EBM under General Statutes § 31-290a.
II
Disability Discrimination under General Statutes § 46a-60(a)(1)
A
Employee Status
EBM moves to strike count three of the amended complaint alleging disability discrimination under General Statutes § 46a-60(a)(1) on the ground that EBM is not the plaintiff's employer and, therefore, the count fails to state a legally sufficient claim upon which relief may be granted. Specifically, EBM argues that § 46a-60(a)(1) " pertains only to those persons who have sought or obtained an employment relationship with the employer alleged to have engaged in the discriminatory employment practice." The plaintiff responds that it has sufficiently alleged an employer-employee relationship between EBM and himself.
General Statutes § 46a-60 provides in relevant part: " (a) It shall be a discriminatory practice in violation of this section: (1) For an employer . . . to discharge from employment any individual . . . because of the individual's . . . physical disability . . . (2) For any employment agency . . . to discriminate against any individual because of such individual's . . . physical disability . . ." The Connecticut Fair Employment Practices Act defines " employer" as " any person or employer with three or more persons in such person's or employer's employ." Gen. Stat. § 46a-51(10). " Employment agency" is defined as " any person undertaking with or without compensation to procure employees or opportunities to work." Gen. Stat. § 46a-51(11). " Employee" is defined as " any person employed by an employer but shall not include any individual employed by such individual's parents, spouse or child." Gen. Stat. § 46a-51(9).
1. Remuneration Test
Our appellate courts have not had yet determined whether a plaintiff who is placed at a defendant's worksite by a staffing company is an employee of the defendant worksite or the staffing company for purposes of the Connecticut Fair Employment Practices Act and General Statutes § 46a-60(a)(1). However, our Supreme Court addressed an analogous situation in Commission on Human Rights & Opportunities v. Echo Hose Ambulance, 322 Conn. 154, 140 A.3d 190 (2016), when it considered whether a plaintiff, who volunteered for the defendant, was a protected " employee" under the Connecticut Fair Employment Practices Act. Although the Supreme Court acknowledged that subsequent to the plaintiff's alleged injury, the legislature passed Public Act 15-56 to include interns within the protections of the Connecticut Fair Employment Practices Act, the court explicitly adopted a threshold remuneration test to determine whether a party is a protected " employee" of a defendant under the Connecticut Fair Employment Practices Act. Id., 163-64 and 166. " The remuneration test instructs courts to conduct a [two-step] inquiry by requiring that a [plaintiff] first show remuneration as a threshold matter before proceeding to the second step-analyzing the putative employment relationship under the [common-law] agency test." (Citation omitted; internal quotation marks omitted.) Id., 161-62.
The threshold remuneration test adopted by Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 160, mirrors the test applied in federal court. Our Supreme Court held that " [r]emuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits that are not merely incidental to the activity performed." (Citation omitted; internal quotation marks omitted.) Id., 161-62. Indirect benefits have been found to include " a retirement pension, life insurance, death benefits, disability insurance, and limited medical benefits" as well as " paramedic certification, tax-exemptions for unreimbursed travel expenses, reduced-rates on commemorative license plates, and benefits under the Federal Public Safety Officer's Benefits Act." Juno v. Livington Parish Fire District No. 5, 717 F.3d 431, 437-38 (5th Cir. 2013). In Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, the court found that the plaintiff failed to state a claim as an employee of the defendant because the plaintiff had not pleaded sufficient facts to allege remuneration in the form of direct compensation or indirect benefits. See Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 166.
Count three of the amended complaint incorporates paragraphs one through seventeen of the complaint, including paragraph six, which alleges that " Plaintiff was hired by Defendant Kelly for a position with Defendant EBM on or about February 10, 2016." The reasonable inference behind this allegation is that the staffing company 'lent' the plaintiff to the client for work at the client's work site. Count three does not, however, include any factual allegations that the plaintiff received remuneration in the form of direct compensation or indirect benefits from EBM. Count three, therefore, is legally insufficient because it fails to provide sufficient allegations to satisfy the remuneration test adopted by our Supreme Court. See Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 166.
2
Right to Control
Our appellate courts also have not yet determined whether a plaintiff, who receives remuneration or indirect benefits from a defendant, is an employee of the defendant under common-law agency principles, where the plaintiff alleges a discrimination claim against that defendant under the Connecticut Fair Employment Practices Act. In Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 154, the Supreme Court found that because the intern did not receive remuneration from the defendant, it was not necessary for the Supreme Court to examine any employment relationship between the intern and defendant under the common-law agency test. The Supreme Court, nevertheless, identified the applicable agency test as the right to control test. Id., 160 n.4.
" Connecticut's right to control test similarly determines the relationship between a worker and a putative employer by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job." Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 160 n.4, citing Doe v. Yale University, 252 Conn. 641, 680-81, 748 A.2d 834 (2000). Although our Supreme Court has stated that it " has not expressly endorsed the factors used by the federal courts" to determine whether a putative employer has the right to control the plaintiff, and would therefore, be its employer; id.; our Supreme Court considered in Doe v. Yale University, supra, whether the defendant had the right to " control the means and methods used by the worker in the performance of his job."
Our Supreme Court acknowledged in Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 160, " in construing [the Connecticut Fair Employment Practices Act] [the court is] properly guided by the case law surrounding fair employment legislation . . . [O]ur legislature's intent, in general, was to make CFEPA compliment the provisions of Title VII" of the Civil Rights Act. Accordingly, this court acknowledges a persuasive case, Shah v. Bank of America, 346 Fed.Appx. 831 (3rd Cir. September 10, 2009), which examined whether the plaintiff was an employee of the bank or a staffing company in deciding whether the plaintiff successfully stated a claim under Title VII of the Civil Rights Act against his putative employer. The Shah court examined " the common law of agency and the traditional master-servant doctrine, " and found that in determining whether the defendant was the plaintiff's employer for the Civil Rights Act, the court " should consider: the hiring party's right to control the manner and means by which the product is accomplished, the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional protects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." (Citation omitted.) Id., 835.
Although the Shah court found that the plaintiff did not provide evidence that the bank was his employer rather than the staffing company; id.; the Eastern District of Pennsylvania in Cauler v. Lehigh Valley Hospital, United States District Court, No. 15-CV-01082, (E.D. of PA, May 14, 2015) found the Shah factors " helpful in defining [the employer-employee] relationship" but found that it was " unable to conduct" " an analysis [under the Shah factors] because [a] plaintiff's factual allegations [were] so sparse." The Cauler court found, nevertheless, that a plaintiff's allegations " clearly show[ed] that [the staffing company] not [the hospital] had control over [a plaintiff's] employment . . ."
Count three of the amended complaint contains no factual allegations that EBM " ha[d] the right to control the means and methods used by [the plaintiff] in the performance of . . . [his] job." See Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn 160 n.4. Similarly, the plaintiff has alleged that it performed work at EBM's worksite, but the plaintiff has not alleged any additional facts in count three that EBM had the right to control the plaintiff's work under the Shah factors. Accordingly, count three is legally insufficient because it does not allege facts in support of a claim that EBM had the right to control the plaintiff's work. Without those allegations, count three does not sufficiently allege that EBM was the plaintiff's employer, a condition necessary to state a disability discrimination claim under the Connecticut Fair Employment Practices Act.
See also Perodeau v. Hartford, 259 Conn. 729, 744, 792 A.2d 752 (2002) (finding that the Connecticut Fair Employment Practices Act imposes liability upon employers).
B
Disability Discrimination Factors
EBM contends that the plaintiff's disability claim under the Connecticut Fair Employment Practices Act fails for several other reasons. First, EBM argues that the plaintiff's right wrist injury was not a chronic physical injury, and therefore, the plaintiff has not pleaded that he suffered a physical disability under the Connecticut Fair Employment Practices Act. Second, EBM argues that the plaintiff has not pleaded that he could work with a reasonable accommodation at EBM's worksite and that EBM failed to provide the plaintiff with a reasonable accommodation. Third, EBM argues that the plaintiff has not sufficiently plead that EBM terminated the plaintiff on account of his physical disability. The plaintiff does not directly respond to these arguments.
" McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), ] and subsequent decisions have established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases . . . First, the [complainant] must establish a prima facie case of discrimination . . . In order to establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination." (Citations omitted; internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 505, 832 A.2d 660 (2003).
1. Physically Disabled under Connecticut Fair Employment Practices Act
" Physically disabled" is defined by General Statutes § 46a-51(15) 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." (Emphasis added.) The statute does not define the terms " handicap, " " infirmity" and " impairment, " therefore, the terms " shall be construed according to the commonly approved usage of the language." General Statutes § 1-1(a). The courts have used the dictionary to define these terms. The District Court in Medvey v. Oxford Health Plans, Inc., United States District Court, Docket No. 3:01CV1977 (EBB), (D.Conn. September 20, 2005) used Webster's Third New International Dictionary Unabridged (1966) to define " handicap" as " a disadvantage that makes achievement unusually difficult; especially: a physical disability that limits the capacity to work." Id. " Infirm" is defined as " not strong or sound physically; of poor or deteriorated vitality especially as a result of age; feeble." Id. " Impair" is defined as " to make worse; diminish in quality, value, excellence or strength; do harm to; damage, lessen." Id. See also Seely v. Winchester Electronics Corp., Superior Court, judicial district of New London, Docket No. CV-11-6008102-S, (August 2, 2013, Devine, J.) (using Webster's Third International Dictionary Unabridged (1966) to define terms " handicap, " " infirmity" and " impairment" by following the definitions in Medvey v. Oxford Health Plans, Inc., supra ).
The handicap, infirmity or impairment must also be " chronic" under § 46a-51(15), however, the Connecticut Fair Employment Practices Act does not define the term " chronic, " and our appellate courts have not defined the term. Caruso v. Siemens Business Communication Systems, Inc., 418 F.3d 164 (2d Cir. 2005). Consequently, the courts have defined " chronic" under the statute a number of different ways. Some have used the dictionary to define " chronic." One Superior Court decision used Black's Law Dictionary to define " chronic" " with reference to diseases, [as] of long duration, or characterized by slowly progressive symptoms; deepseated and obstinate, or threatening a long continuance; distinguished from acute." Gilman Brothers Co. v. Connecticut Commission on Human Rights & Opportunities, Superior Court, judicial district of Hartford, Docket No. CV-95-0536075-S, (May 13, 1997, McWeeny J.); see Hutchinson v. Ecolab, Inc., United States District Court, Docket No. 3:09CV1848, (JBA) (D.Conn. September 28, 2011) (citing same definition for " chronic"). See also Setkoski v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-10-6012794-S, (May 10, 2012, Domnarski, J.) (54 Conn. L. Rptr. 67, 69, ) (finding " [m]uch like a pregnancy complication that is of limited duration, the plaintiff's allegation that she suffered a disability that lasted three months is insufficient to be considered chronic"); Kucharski v. Cort Furniture Rental, 536 F.Supp.2d 196, 202 (D.Conn. 2007), aff'd, 342 Fed.Appx. 712 (2d Cir. 2009) (finding evidence of " pregnancy complications" for " two months" was " short duration" and did not establish the plaintiff physically disabled under Connecticut Fair Employment Practices Act).
There is a split of authority on whether the plaintiff's condition must be unresponsive to medical treatment and ameliorative measures for the condition to be " chronic." On the one hand, courts acknowledge that the condition must substantially limit a major life activity to be a disability under the ADA, and some courts require the condition to be unresponsive to medical treatment and ameliorative measures to be " chronic" under the Connecticut Fair Employment Practices Act. See Shaw v. Greenwich Anesthesiology Associates, 137 F.Supp.2d 48, 65 n.22 (D.Conn. 2001) (stating " [i]f [the plaintiff] does not suffer [from symptoms of the condition] when [the plaintiff] is on [the] medication and [the plaintiff] is able to take [the] medication such that [the plaintiff] is not chronically handicapped, infirmed, or impaired then [the plaintiff] would not be actually disabled under [the Connecticut Fair Employment Practices Act]"); see also Seely v. Winchester Electronics Corp., supra, Superior Court, Docket No. CV-11-6008102-S (applying Shaw and finding that " the plaintiff's cysts respond to medical treatment and ameliorative measures . . . including surgery, pain-relievers and warm compresses, and that, although long-lasting, the cysts cannot be considered chronic under the [Connecticut Fair Employment Practices Act]." [Citations omitted; internal quotation marks omitted.]); Medvey v. Oxford Health Plans, Inc., supra, United States District Court, Docket No. 3:01CV1977 (EBB) (applying Shaw to determine whether plaintiff's condition is " responsive to medical treatment and ameliorative measures, " finding that " plaintiff's condition responds to treatment with small doses of the medication Valium and, failing that, [the] plaintiff compensates by reducing the pace and intensity of her work, " and concluding that plaintiff's condition is not chronic under [the Connecticut Fair Employment Practices Act]." [Citations omitted.])
On the other hand, some courts recognize that " disability" is defined more broadly under the Connecticut Fair Employment Practices Act than the ADA, and one court rejects the requirement that the condition must be unresponsive to medical treatment and ameliorative measures to be " chronic" under the Connecticut Fair Employment Practices Act. Gomez v. Laidlaw Transit, Inc., 455 F.Supp.2d 81, 88 n.5 (D.Conn. 2006) (finding in asthma case that " corrective measures" are considered by court in ADA disability claim but not in " physical disability" claim under [Connecticut Fair Employment Practices Act]); see also Beason v. United Technologies Corp., 337 F.3d 271, 278-79 (2d Cir. 2003) (lower court erred by relying on ADA standard in determining whether plaintiff's arthritis was disability under Connecticut Fair Employment Practices Act).
Notwithstanding the foregoing definitions, our Supreme Court has held that liability may attach if the plaintiffs are perceived as having chronic physical disabilities even if they are not " physically disabled" as defined by the statute. Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 794, 105 A.3d 103 (2014) (concluding that the Connecticut Fair Employment Practices Act " prohibits employers from discriminating against individuals whom they regard as physically disabled").
Count three of the amended complaint incorporates earlier paragraphs one through seventeen into the count. In paragraphs seven and eight, the plaintiff alleges that he presented EBM's human resources department with his light duty work restrictions related to his workplace injury on his right wrist. A permissible inference from these allegations is that the plaintiff may claim that his right wrist injury was a " handicap, " which has been defined commonly as a " physical disability that limits the capacity to work." See also, e.g., Christophe v. People's Bank, Superior Court, judicial district of Fairfield, Docket No. 385621 (February 20, 2003, Levin, J.) (34 Conn. L. Rptr. 158, 160, ) (stating " our trial courts have held that carpal tunnel syndrome can be a physical disability under § 46a-60, particularly when the condition is chronic, " and citing Farahani v. University of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV-01-0809033, (July 10, 2002, Wagner, J.T.R.); Infante v. Thomas, Superior Court, judicial district of New Haven, Docket No. CV-97-0395925, (June 21, 2001, Moran, J.)). The plaintiff has not, however, alleged that his right wrist injury was chronic, defined as " of long duration, or characterized by slowly progressive symptoms; deepseated and obstinate, or threatening a long continuance; distinguished from acute" or provided any factual allegations to support that contention. Without any factual allegations that the right wrist injury was chronic, count three does not sufficiently allege that the plaintiff was physically disabled.
2. Reasonable Accommodation
EBM next argues that count three of the amended complaint is legally insufficient because the plaintiff has failed to allege that he could work at EBM's worksite and perform the essential functions of his job either with or without a reasonable accommodation for his right wrist injury. Specifically, the plaintiff's allegation that he provided EBM with light duty restrictions is merely conclusory and provides no facts upon which to conclude that the plaintiff " was able to perform the essential functions of his position" with light duty work restrictions. EBM further argues that the plaintiff's allegation that EBM failed to make an accommodation for the plaintiff, similarly, is a " threadbare legal conclusion" without sufficient facts pleaded, rendering count three a legally insufficient failure to accommodate claim.
Our Supreme Court in Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 410-13, 944 A.2d 925 (2008) found that an employer is required to provide an accommodation for a physically disabled person under the Connecticut Fair Employment Practices Act. " A reasonable accommodation requires the plaintiff to allege facts 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." Gaillard v. Southwestern Connecticut Agency on Aging, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-13-6036506-S, (October 23, 2014, Gilardi, J.T.R.), citing Curry v. Allan S. Goodman, Inc., supra, 415. " Once a disabled individual has suggested to his employer a reasonable accommodation . . . the employer and the employee [must] engage in an informal, interactive process with the qualified individual with a disability in need of the accommodation . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations . . . In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion." (Citation omitted; internal quotation marks omitted.). Id. The Superior Court found there is a " low threshold for a plaintiff initiating a discussion [with an employer] about a possible accommodation." See Gaillard v. Southwestern Connecticut Agency on Aging, Inc., supra, Docket No. CV13-6036506-S.
As noted previously, count three of the amended complaint incorporates paragraphs one through seventeen of the complaint. In paragraph ten, the plaintiff alleges that " [o]n April 25, 2016, Plaintiff reported to the human resources department of Defendant EBM and provided it with his light duty work restrictions." A reasonable construction of paragraph ten is that the plaintiff alleges that he asked EBM for a work accommodation " within his light duty work restrictions" on April 25, 2016. In paragraph eighteen, the plaintiff alleges that " [t]he defendant failed to provide Plaintiff with a reasonable accommodation, though it reasonably could have, and then terminated his employment because of his disability or perceived disability, in violation of Conn. Gen. Stat. § 46a-60(a)(1)." Based upon these allegations, the plaintiff alleges that he requested a reasonable accommodation from the defendant for his light work restrictions, but the defendant " failed to provide [him] with a reasonable accommodation."
Although the plaintiff alleges that he requested light work accommodations from EBM, he does not allege that " he was able to perform the essential functions of the job with or without a reasonable accommodation." See Curry v. Allan S. Goodman, supra, 286 Conn. 415. Accordingly, count three of the amended complaint is legally insufficient because it does not allege that the plaintiff " was able to perform the essential functions of the job with or without a reasonable accommodation."
3. Termination Based on Physical Disability
Lastly, EBM argues that count three of the amended complaint is legally insufficient because the plaintiff did not properly allege that EBM terminated the plaintiff on account of his physical disability. EBM further argues that count three is legally insufficient because the Connecticut Fair Employment Practices Act does not prohibit employers from discriminating against individuals whom they regard as physically disabled.
The court declines to strike count three on either of those grounds. In paragraph eighteen of count three, the plaintiff alleges that the client " terminated [the plaintiff's] employment because of his disability or perceived disability, in violation of Conn. Gen. Stat. 46a-60(a)(1)." Moreover, our Supreme Court held in Desrosiers v. Diageo North America, Inc., supra, 314 Conn. 794 that the Connecticut Fair Employment Practices Act " prohibits employers from discriminating against individuals whom they regard as physically disabled."
CONCLUSION
For the reasons set forth above, the court grants EBM's motion to strike counts one and three of the amended complaint.