STATE OF CONNECTICUT
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
CHRO Case No. 9710678
FED No. 16a971429
March 14, 2003
Commission on Human Rights and Opportunities ex rel.
Hospital for Special Care
FINAL DECISION AND ORDERS
I. THE PARTIES
36 Leo Street
New Britain, CT 06053
William R. Scaringe, Esq.
Attorney at Law
P.O. Box 270969
West Hartford, CT 06127-0969
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES:
Cheryl A. Sharp, Assistant Commission Counsel II
21 Grand Street, 4th floor
Hartford, CT 06108
Hospital for Special Care
Ms. Lorraine Shea, Manager
2150 Corbin Ave.
New Britain, CT 06053
Andrew Cohen, Esq.
Letizia, Ambrose & Cohen, P.C.
One Church St.
New Haven, CT 06525
II. PROCEDURAL HISTORY
This case was initiated by the Complainant on June 10, 1997 by virtue of his executing an affidavit of Complaint with the Commission on Human Rights and Opportunities (hereafter the "Commission"). In his affidavit the Complainant charged that he was wrongfully terminated from his employment as a Nurse's Aide with the Respondent on January 10, 1997, and that this termination was based on illegal discrimination against him as a result of his sex, race, color, national origin, and learning disability. Mr. Navarro subsequently amended his Complaint on or about June 19, 1998, adding the claim of retaliatory action by the Respondent as against him, and adding his alcoholism disability to the factors used by the Respondent in connection with its alleged discriminatory employment actions.
Subsequent to this Complaint, as amended, the Commission conducted an investigation, which resulted in a determination by the agency that reasonable cause existed for believing that unfair and discriminatory practices were committed as alleged. After an unsuccessful endeavor to conciliate this matter, the Complaint, as amended, was certified to The Office of Public Hearings on or about December 2, 1998. The certified Complaint filed thus alleges violations of General Statutes §46a-58(a), §46a-60(a)(1), 46a-60(a)(4), 42 U.S.C. §2000e, 42 U.S.C.§12101 et seq. and 29 C.F.R.§1630 et seq.
Upon receipt of this Complaint the Office of Public Hearings issued on January 22, 1999 a Notice of Public Hearing providing for a Hearing Conference to be held on February 5, 1999, and designating the Honorable Lisa B. Giliberto as the Presiding Human Rights Referee. At that time various dates for pre-hearing activities were established, including but not limited to discovery via production. Later, on or about April 6, 1999 the above case was reassigned to the undersigned in substitution for the Hon. Lisa Giliberto.
On or about September 2, 1999 a status conference was held at which among other matters, Public Hearing dates were established for March 13 through March 17, 2000. After that date, as the record will unambiguously establish, substantial and recurring disputes arose relative to the production of certain records in the possession of the Respondent. On or about February 14, 2000 the Respondent brought an action in the Superior Court in New Britain ("Hospital for Special Care v. Gordon Allen, et al. CV-00-0500248-S) in order to enjoin further administrative proceedings until a resolution was achieved with respect to certain of these production issues.
The Public Hearing commenced on July 17, 2002, and continued thenceforth to further hearing dates on July 18, 19, August 13, 15, 16, 21, 22, September 4, 5, 20, and ending on October 8, 2002. On that later date the parties were ordered to submit their respective Briefs on or before January 15, 2003, at which time the record would be closed.
The Decision following hereinafter is made based on my careful review of the entire record, including the transcripts of all testimony, the records and exhibits submitted by the parties, and on my thorough consideration of the Briefs submitted.
III. FINDINGS OF FACT
1. All statutory and procedural prerequisites to the public hearing more satisfied and the complaint is properly before the undersigned presiding human rights referee.
2. The Complainant is a male Hispanic (CHRO Exh.16; Tr. 149).
3. The Complainant was diagnosed in 1996 as being an alcoholic and suffering from the condition known as ADHD (Attention Deficit Hyperactive Disorder) (Tr. 179-180); CHRO Exh. 16).
4. The Complainant was hired as a CNA by Lorraine Shea of the Respondent Hospital for Special Care (Tr. 152).
5. The Complainant's employment start date was December 4, 1995, and his termination date was January 10, 1997 (TR. 389; Exh. R-1; CHRO Exh. 4)
6. Symptoms associated with ADHD include rapid speech, hyperactivity, forgetfulness, and loss of concentration (Tr. 180). Complainant also had difficulties reading and writing, operating at first and second grade levels only (Tr. 148).
7. During the course of a normal workday Complainant came into contact with up to 30 patients in some form, up to 6-8 nurses, 5-6 respiratory therapists, and an equal number of CNA's (Tr. 160-165).
8. Complainant, like other CNA's, received his assignments at the start of his shift in a small report area approximately 12x15 feet in size (Tr. 153, 165).
9. During his first six months Complainant had "attendance issues when I was drinking" (Tr. 251) amounting to 13 absences in 5 months (TR. 445, R. Exh. 7, R Exh. 9). On May 15, 1996 he received a "final warning" memo (R#11) regarding the performance issue.
10. In May 1996 Complainant told his supervisor he was an alcoholic and he was given a leave of absence by Lorraine Shea to seek treatment at the Veterans Memorial Hospital in Meriden (Tr. 482, 486: CHRO#16).
11. Lorraine Shea thought the leave of absence would be for 2-4 weeks, as was the custom, but she extended it at Complainant's request for a period of between 8-10 weeks (Tr. 2279, 2284)
12. Complainant was not entitled to a leave of that length based on existing policy or precedent (Tr. 2279, 2396).
13. During the leave period Complainant met with Lorraine Shea regularly to discuss his progress and return to work (Tr. 260). On a number of occasions Lorraine Shea locked the door to her office during these meetings (Tr. 331). There were at least 3-5 meetings (Tr. 488).
14. Lorraine Shea was advised during these meetings of Complainant's ADHD diagnosis (Tr. 184).
15. Lorraine Shea told Complainant she would advise his supervisors and nurses of his ADHD so as to enable them to calm/slow him down when needed (Tr. 263).
16. Lorraine Shea never advised either her subordinate staff, Human Resources, or her supervisors of his ADHD (Tr. 2102, 2103, 2167, 2530)
17. Complainant asked Shea in July 1996 for a shift change which request Shea accommodated (Tr. 481) without posting the open job as would normally be the case (Tr. 2283).
18. Complainant did not request from Shea any specific accommodation for his disability upon his return to work (Tr. 493).
19. Complainant signed a Return to Work Agreement (R Exh. 15; Tr. 2289-2290) which acknowledged that at any time his performance fell below minimum expectations it could result in his discipline and/or termination.
20. Complainant acknowledged that he was taking medications to treat ADHD in July 1996 and that they were important in dealing with this disability (Tr. 2639, 2648).
21. Complainant testified that he stopped taking the medications because of the side effects but couldn't remember when he did so (Tr. 2639). This testimony on this subject I found to evasive and non-credible.
22. Complainant testified "that I could have stopped taking the medications before his termination" (Tr. 2650) which I find to have been the case (Tr. 2638).
23. From July 1996 until October 1996 there were no specific disciplinary incidents alleged against Complainant. (Tr. 1967)
24. In October 1996 Complainant got into an argument with a Registered Nurse, Maryanne Schwal (CHRO Exh. 6) relating to a changed shower assignment. This incident took place in front of patients (Tr. 2517).
25. As a result of this incident, and his argument about it with his supervisor, Lou DeRocco, he was sent home and suspended for a day (Tr. 2296).
26. Later that month, while off-duty, Complainant was seen walking through the hallway "screaming, yelling, and cursing" and slamming the fire door open violently against the wall (Tr. 2702).
27. Immediately after these two incidents Lorraine Shea consulted with Tom Lodge in Human Resources (aka EDS) in an attempt to have Complainant fired (Tr. 2047)
28. Human Resources, acting through the aforementioned Tom Lodge, did not agree with Mrs. Shea's desire to terminate Complainant (Tr. 2047).
29. On or about November 22, 1996 a memorandum was issued (R Exh. 17) referring to nine (9) additional attendance issues or "occurrences" over the last 6 months and that as result Complainant was not meeting the hospital policy for attendance (Tr. 2307).
30. Complainant testified that he was, and remained, alcohol-free after his rehabilitation treatment at the Veteran Memorial Medical Center, never drank thereafter, and did not ever keep alcohol at his home (Tr. 222).
31. The Respondent's Human Resource policies, including those involving discipline of employees, were hospital-wide policies that applied equally to everyone notwithstanding their unit (Tr. 1872-1873).
32. An employee's work history at the Respondent Hospital is important in evaluating prospective discipline; "employees are a product of [their] entire work history" (Tr. 1911, 1912, 1915-1916).
33. The Respondent's position was that its' employees were at-will employees, and that its prerogatives were not negated by the progressive discipline policy which served to provide managers with guidelines to follow in working through discipline issues (Tr. 2143)
34. During Complainant's tenure there were two other Hispanic male CNA's who worked for Lorraine Shea: Carlos Rios and Jorge Calazzo. Both testified credibly that neither felt treated differently or unfairly either by the Respondent Hospital or by Lorraine Shea (Tr. 2323-2326; 2709-2712; 2778-2780). The aforementioned Rios has a disability in the form of having a glass eye and being blind in his right eye.
35. In the period corresponding to Complainants' termination Ms. Shea terminated six (6) CNA's, of whom three (3) were Caucasian and two (2) male (Tr. 2339).
36. The personnel records/documents put forth by the Complainant and the CHRO representing the comparative groups allegedly treated more favorably than Complainant represented and extremely diverse, broad cross-section of genders, national origin, and races (see CHRO Exh. 34-79, 81), including other Hispanics.
37. There was a little or no evidence as to whether; and/or to what extent, any or all of the comparative groups were disabled, or considered disabled by the Respondent (CHRO Exh. 34-81).
38. In the particular case of Michael LaGasse (CHRO Exh. 54), who was disabled by virtue of cerebral palsy, the Respondent had a food service aide who had problems with temper control and frustration not greatly unlike that alleged of Complainant (Tr. 1231)
39. LaGasse was terminated at one point by his Supervisor, Donald Cyr; after several instances of using profanity and aggressive behavior. He was shortly thereafter reinstated after intervention of upper management (Supra) (Tr. 1222-1227, 1231, 1233, 1239, 1241, CHRO Exh. 54).
40. LaGasse was reinstated because he had been a Special Olympic participate in Spain (Tr. 1309) and had received along with the Respondent, favorable publicity in that regard. His reinstatement was not based on his being Caucasian.
41. Respondent's staff was prohibited from speaking in their native language in the presence of patients (Tr. 1032; 2061-2062). This rule applied to any language (Tr. 2780-2781), and did not apply on other situations not involving patient care (Tr. 1034).
42. Complainant's replacement, upon his termination, was Virgen Quirindongo, a female Hispanic certified nurse's aide hired in January 1997 (R #47; Tr. 2321).
43. Complainant's last day of work was December 29, 1996, which was a Sunday (Tr. 187, 221).
44. Complainant's described, credibly, his lad day of work as being a "typical" day in terms his work assignments, and in the number and circumstances of his interactions with other staff and patients (Tr. 196-200).
45. Complainant worked his entire eight hour shift that day and was not told by anyone that he had done anything wrong (Tr. 2002), or that his appearance or behavior was out of the ordinary (Tr. 222-224).
46. On or about January 2, 1997, Janet Brancifort, then acting as a Clinical Manager, received a patient complaint about Complainant from a Barbara Marsellessi (Tr. 860). Marsellesi claimed that on December 29, 1996 - at least two days earlier - complainant had been "angry" (in the day room), slamming his hand on the counter and used a great deal of profanity. She also claimed to have smelled alcohol on his breath (Tr. 866).
47. Branciofort provided Lorraine Shea with an oral summary of Mrs. Marsellesi's complaint (Tr. 932), and immediately thereafter an unsigned written summation (Tr. 932; R#33). In her conversation Marsellesi identified other aides as witnesses to the incident (Tr. 2317-2318; 868); Gertrude Leszczinski was not one of them (Tr. 913).
48. It is an affirmative duty for Hospital employees to report suspicious conduct or negative behavior to supervisors. A failure to timely report an incident may leas to an employees termination (Tr. 241; 1777-1779; 568).
49. No staff member or employee was disciplined for failing to report Complainant's alleged behavior and appearance on December 29, 1996 (Tr. 1947).
50. On or about January 2, 1997 Shea called Complainant to advise him that he was being suspended pending an investigation into the above-referenced complaint (Tr. 280). Shea testified that this occurred on or about January 6, 1997 (Tr. 2178).
51. Shea testified that she received no other patient complaints regarding this incident and did not discuss it with or attempt to verify it with any other patients (Tr. 1951).
52. Her investigation consisted of solely of interviewing three (3) CNA's on duty December 29, 1996; and Sonia Stephenson (Tr. 1951-1952) None of these testified at the hearing other than Lecszczynski (Record).
53. Barbara Marsellesi was a long-term patient subsequently deceased (Tr. 1943), who was maintained on a tracheotomy (Tr. 2667-2668). At the time at issue Mrs. Marsellesi was on at least a dozen medication whose side-effects included slight sedation, drowsiness, nausea, and somewhat impaired cognitive skills (Tr. 2667-2668).
54. Mrs. Marsellesi did not sign the complaint (Record) and was known to prefer female CNA's (Tr. 918-919).
55. Shea memorialized her conversations with Janet Ferrucci, Stephenson, and Leszczynski; none of whom were asked to sign memos (Tr. 1943-1949; CHRO #6).
56. Ms. Lesczczynski testified that she heard swearing from at least 120 feet away (Tr. 2816). Marsellesi's complaint alleged that the incident took place in the day room with approximately 10-12 people there at the time (Tr. 206-208, 210). This room is connected to the nurses station (Tr. 197-200) This claim is clearly exaggerated (Tr. 2819,2845).
57. Mrs. Leszczynski testified, adamantly, that Lorraine Shea called her the following morning (ie December 30th) about the alleged incident and that they spoke for 10-15 minutes about it (Tr. 2835, 2839). This is incompatible with Shea's testimony that the incident was just reported on January 2, 1997.
58. Shea testified that there were no complaints or proceedings against Complainant as of December 29, 1996, and that absent the latter incident he would not have been terminated (Tr. 1969).
59. Shea testified that she was not fearful of Complainant on December 29, 1996, and didn't remember precisely when she became so (Tr. 1952).
60. Subsequent to her investigation Shea contacted Jerdi Trczinski, her EDS Consultant (human resources consultant); she then, along with Trczinski met with Marie Pietuantiano, who at that time had oversight responsibility for EDS (Tr. 2577. 2581, 2583). Both Shea and Trczinski recommended Complainant's termination, with which Pietuantiano concurred (Tr. 2588).
61. Pietuantiano made no inquiry into the facts other than to accept, in a 10-minute meeting, the recommendation presented (Tr. 2588, 2607).
62. Shea did not disclose to, either Trczinski or Pietuantiano Complainant's ADHD, or that she had previously been denied by Tom Lodge in October 1996, a previous recommendation for termination of Complainant (Tr. 2166-2167, 2169).
63. Shea testified that she had been frustrated after her conversation with Tom Lodge in October 1996 (Tr. 2161).
64. Shea testified that sometime between January 6, 1997 and January 10, 1997 she had at least one conversation with David Crandall, then President and CEO of the Respondent Hospital. No written record of this discussion exists (Tr. 2170).
65. On January 10, 1997 the aforementioned Crandall telephoned the Complainant to advise him that he had been terminated (Tr. 2184-2187). Shea, among others, was present during this call, which was audio taped (Tr. 2184). In that call Carndall advised Complainant that his termination was a result of the patient compliant of December 29, 1996 as well as past performance and behaviors (Tr. 312, CHRO Exh. #9 and Appendix 1).
66. Crandall further advised Complainant that he would not be allowed on Hospital property because of "implied threats"…. and that "we are not going to call the police, but if you violate anything that I have said….they will be the first people we notify" (Tr. 312, CHRO Exh. #9, Appendix 1).
67. Complainant was non-threatening during this conversation (CHRO Exh. #9), and never threatened any employee or patient at the Hospital (Tr. 316).
68. Asked to attend this January 10, 1997 termination call was John Baccaro, Director of Security (under contract) with the Respondent Hospital (Tr. 1357) Baccaro testified that he does not recall ever being advised in 1996-1997 by management that it feared an employee.
69. One January 10, 1997 the Respondent sent a termination letter corresponding in content to the call mad by Crandall (R Exh. #18).
IV. ANALYSIS AND DISCUSSION
As noted at the outset the Complainant, and the CHRO, have alleged specified violations of both federal and state law. The language of the relevant statutory and regulatory provisions have been set forth in the Commission's Brief and are duly noted. There is no need for a verbatim recitation of these provisions and reference for brevity's sake will be made only to those passages bearing directly on this analysis and the issues needed for final determination of this matter.
It is accepted by both parties that Connecticut's employment discrimination laws are essentially co-extensive with federal law, Levy v. CHRO, 256 Conn. 96, 108 (1996), and as such that "an analysis [in a particular case] is the same under both" Craine v. Trinity College, 259 Conn. 625 (2002). Claims of disparate treatment, when direct evidence is otherwise lacking, under both state and federal law are both analyzed using the familiar burden-shifting analysis propounded under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The generally accepted order and allocation of proof therein is: (1) the Complainant has the initial burden of proving a prima facie case; (2) the burden then shifts the Respondent to articulate a legitimate non-discriminatory reason for its action; (3) the Complainant then has the ultimate burden of proving by a preponderance of evidence that Respondent's stated rationale was not its true reason but rather a pretext for discrimination Miko v. CHRO 200 Conn. 192, 204 (1991).
A. RACE , COLOR, GENDER AND RETALIATION CLAIMS
Respondent's Brief devoted little space or attention to these issues (pp. 49-50) and in my judgement deservedly so. There is no credible evidence in this record, which supports even a prima facie case based on these allegations. This is true even in light of the established principle that [a] "Complainant's burden of establishing a prima facie case is not onerous" Texas Department of Community Affairs v. Burdine, 450 U.S. 2348 (1981). Not onerous is not synonymous with non-existent.
Lorraine Shea, who the Complainant and Commission both concede to be the main "actor" in this matter, hired Complainant. It could not have escaped her attention that Mr. Navarro was male and Hispanic. It was Mrs. Shea who approved Complainant's leave, subsequently extended beyond customary parameters, for his alcoholism rehabilitation and who met regularly with him as he approached return to work status. His sex, color and national origin still could not have escaped her attention. Mrs. Shea approved, nonetheless aware of his sex, color and national origin, Complainant's request for a shift change without posting the job, which would also have been customary.
Complainant and the Commission submitted no direct evidence that either Lorraine Shea or the Hospital as an institution discriminated against him on the basis of his race, color or gender. There was also no statistical or macro employment date submitted to support these claims. In point of fact what evidence was presented, in the form of the various "one on one" files and witness testimony, tended to show that the Respondent's work force was extremely diverse.
The only two witnesses presented at the hearing as male Hispanics, namely Carlos Rios and Jorge Calazzo, both testified credibly that they were not treated differently or unfairly by the Hospital or Lorraine Shea. The Complainant's successor after his termination, Virgen Quirindongo was also Hispanic.
There were also generalized claims that Hispanic employees were treated poorly, allegedly manifested in a discriminatory prohibition against speaking Spanish. However, the record supports a finding that the prohibition applied equally to all foreign languages spoken by staff in the presence of or during the care for patients (not speaking that language). This is and was a perfectly legitimate, reasonable, and non-discriminatory rule.
There was also no evidence - other than Complainant's self-serving belief as to it - to support any retaliatory claim. There is no credible evidence that he "opposed" derogatory comments about Hispanics by Hospital staff, or that the Hospital sanctioned any discriminatory behavior as against Hispanics (as noted above). As to Maria Borrero's (his future wife) workmen's compensation claim, her date of injury on November 17, 1996 was subsequent to the various incidents which Complainant claims already evidenced discriminatory intent on the part of the Respondent. There was not the slightest evidence presented to tie his termination January 10, 1997 into the workmen compensation claim by his then - significant other, or to indicate that the handling of that claim was itself in any way based on discriminatory impulses.
In short, as to these claims, there was utterly insufficient evidence to support even the minimalist showing that a prima facie case would require; ie the prong of a prima facie case that would show that "a termination occurred under circumstances giving rise to an inference of unlawful discrimination" Levy v. CHRO, 236 Conn. 96, 107-8 (1996). Nothing remotely suggestive of such circumstances was presented.
B. CLAIM OF WRONGFUL TERMINATION BASED ON ADHD AND/OR LEARNING DISABILITY
The allegation that the Respondent wrongfully terminated the Complainant because of his alleged disability presents a substantially different situation, and one considerably more difficult to resolve. The scenario put forward by the Complainant and CHRO in support of their contention plays out something like the following:
Unlike Complainant's sex, color, or race/national origin, the Complainant's ADHD/Learning Disability ("hereafter considered together as ADHD") was not known to Lorraine Shea when he was hired. In fact the Complainant himself did not know this until tests conducted by the Members Veteran Memorial Hospital in June 1996 identified his malady. Upon learning of this condition, Lorraine Shea and the Respondent Hospital determined that accommodating or otherwise dealing with this situation was too difficult and that a determination to fire Complainant was made. The "incidents" in October 1996, and then December 29, 1996 was either manufactured or exaggerated in order to accomplish this objective. The inconsistencies and unusual actions of the Respondents during the period December 29 - January 10 were but manifestations of what was a pre-textual termination of employment based on Mr. Navarro's disability and not based on his work performance and behavior.
This is not completely impossible or fanciful scenario as was the case with respect to the sex, color, race and retaliation claims. Its plausibility was made more conceivable, as will be seen hereinafter, because of some of Respondents clearly inconsistent, exaggerated and unnecessary statements and actions during the period December 29, 1996 and January 10, 1997.
(1) PRIMA FACIE CASE
Establishing a prima facie case under the McDonnell Douglas model generally requires a showing of four elements: (1) the Complainant belongs to a protected class; (2) that he was qualified for the position at issue; (3) that he suffered an adverse employment action (e.g. here he was fired); and (4) that the adverse action occurred under circumstances which inferred it was based on unlawful discrimination Texas Department of Community Affairs v. Burdine , 450 U.S. 248 (1981). As noted in Burdine, supra (p. 253), this standard is not absolutely rigid and the elements of a prima facie case can and should be appropriately modified depending on the respective factual scenario. Adjusted accordingly, a prima facie case here of discriminatory discharge based on disability should require establishing (1) that the Respondent had notice of Complainant's disability; (2) that he was disabled within the meaning of the law; (3) he was otherwise qualified to perform the essential function of his job with or without reasonable accommodations; and (4) he was terminated under circumstances which inferred it was based on unlawful discrimination based on that disability. Heyman v. Queens Village Committee for Mental Health, 198 F.3d68, 72 (2nd Cir. 1999); Ann Howard's Apricots Restaurant, Inc. v. CHRO, 237 Conn.209, 225 (1996).
There is no argument that Lorraine Shea, and thus the Respondent, had notice of Complainant's ADHD, at least from June/July 1996 onward. There is, however, considerable argument as to whether under federal or state law, he was disabled. Under the ADA, both parties agree, a person is considered disabled if he has a (1) physical or mental impairment which substantially limits one or major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment 424 U.S. C. § 12102; 29 CFR § 1630 2(h) to (j).
Neither party provided any authority from Connecticut or the Second Circuit specifically addressing whether ADHD is per se a disability or protected impairment. EEOC regulations define major life activities as exemplified by "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" 29 CFR § 1630 2(i). The same regulations described "substantially limited" as unable to perform a major life activity that the average person in the general population can perform (i) or significantly restricted as to the condition, manner, or duration under which and 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)(i).
Complainant himself described his symptoms of ADHD as rapid speech, fidgetiness, hyperactivity, and loss of concentration and/or memory (Finding #6). It is difficult to correlate these aspects with the substantial impairments associated with a protected disability or mental disorder. It is also to be stressed that the Complainant did not testify as to, or describe, any major life activities he felt substantially limited in other than reading and writing. He certainly maintained throughout that his ADHD did not affect his ability to hold down his job as a CNA or other jobs as well. The reading and writing limitation he described appears to constitute the "learning disability" he refers to, and in his testimony frequently overlapped with or seemed often synonymous in his own mind with his ADHD. However no expert or other evidence was in fact presented that proved that his ADHD caused his claimed reading difficulties, or caused difficulties in the major life activity of learning. One notes that he completed a 10th grade education according to his own testimony, and passed tests for his nursing aide certification (TR. 320; 146). Further, it can be noted and recognized that there are hundreds of thousands, if not millions of individuals with ADHD who exceed 2nd and 3rd grade levels of reading and writing. In the absence of evidence or authority to the contrary, I find a failure to establish that one necessarily connotes the other.
Notwithstanding the above, Complainant would fail on the facts of this case to sustain his claim of being disabled under the law by virtue of the U.S. Supreme Court's holding in Sutton v. United Airlines, 527 U.S. 471 (1999), to the effect that "a person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently substantially limits a major life activity" Sutton, Supra 527 U.S. 47, 482 (1999). Thus Sutton requires that Complainants ADHD, assuming it rises to the level of a "disability", be examined in the light of corrective measures that may ameliorate its effects. E.g. Muller v. Costillo, 187 F. 3d 298, 314 (2nd Cir.)(" We must evaluate [plaintiff's] disability with reference to the applicable corrective measures of inhalers or other medications"). The Respondent cites the case of Shaw v. Greenwich Anesthesiology Assoc., P.C., 137 F. 2nd 48 (D. Conn. 2001) for the proposition that the Sutton analysis applies to state claims under FEPA (C. G. S. § 46a-58 et seq.) as well. In that case the court reviewed whether the plaintiff was in pain and had restricted motion when she was on medication, or only when she was off medication. The court said "if she does not suffer these conditions when she is on her medication and she is able to take her medication such that she is not chemically handicapped, infirm, or impaired then she would not be actually disabled under C.G.S. § 46a-60 (a)(1)" I.d. at 66 n.22. See also Beason v. United Technologies Corp., 213 F. Supp. 2nd 103, 115 (Conn. 2002)(adopting Sutton analysis of ADA claim in granting motion for summary judgement on plaintiff's EPA disability discrimination claim).
Although the wording of the ADA and the comparable provisions of state law are not, and were not in 1997 exactly similar, the US Supreme Court's reasoning with respect to the corrective steps made possible by modern medicine appears logically persuasive to me. It would also be consistent with the general tendency of Connecticut courts to be guided by federal law in interpreting state anti-discrimination statutes. Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996).
This conclusion, to put it mildly, greatly undermines Complainant's ability to establish his prima facie case; in fact is probably determinative thereof. The Complainant's own testimony established that he was prescribed medication for his ADHD during his detoxification treatment in May/June 1996. He further acknowledged that these medications, which he was taking through July 1996, were important in dealing with this condition. Complainant also conceded that he stopped taking these medications, not because of any lack of effect on his ADHD, but rather because of their side effects ("sexual problems" Tr. 258) See FF 19-21.
During cross-examination the Complainant was noticeably and obviously evasive as to when he stopped taking the medications. It was clear, however, to the undersigned that Complainant had in fact stopped taking the medications sometime during the third quarter of 1996 (See R Exh. 24 at 32; Tr. 2693; CHRO Exh. 6), meaning the period August-September 1996. One is forced to conclude, from any reasonable evaluation of the evidence, that the Respondent is correct when it said "Complainant cannot satisfy any meaningful definition of a disabled person because the effective remedy for his disability was on his night table or in his medicine chest, and he chose to let it stay there" (Resp. Brief p. 29).
Thus I find that the Complainant has not established an essential complainant of his prima facie case, namely that he was disabled within the meaning of either federal or state law. As such further inquiry into the other elements of a prima facie case becomes irrelevant. Those other elements, namely whether he was otherwise qualified for the position, and whether his termination took place under inferentially discriminatory circumstances, are in any event inextricably intertwined with the Respondent's proffered reasons for the termination, and the alleged pre-text for same.
(2) RESPONDENT'S NON-DISCRIMINATORY REASONS FOR TERMINATION
For the reasons set forth above I have concluded that Complainant and the CHRO failed to sustain their burden of establishing a prima facie case with respect to the disability discrimination claims. Notwithstanding that conclusion, I find that even if it were determined that such a prima facie case had been made the result would still be the same on the alternative grounds that the Complainant failed to establish by a preponderance of the evidence that the Respondent's stated non-discriminatory reasons for his termination were pre-textual. This determination is made with some degree of difficulty on account of misgivings about aspects of Respondent's actions post December 29, 1996 that are troubling, but not ultimately decisive.
As noted previously David Crandall, the Respondent's CEO, gave as the Hospital's reason for Complainant's dismissal the "incident" of December 29, 1996 as well as "past performance and behaviors" (CHRO Exh. 9. Appendix 1; Tr. 312. Resp. Exh. 18). The latter phrase is significant if only because the Complainant implicitly, if not explicitly argues that his dismissal was either largely or solely a result of the December 29, 1996 patient complaint. It is important also because the heart of the Complainant's case was that he was singled out for disparate treatment in that he was not afforded the kind of progressive (meaning in Complainant's mind "lenient" or "tolerant") discipline comparatively afforded other personnel (CHRO Brief p. 18). It was the search for such comparisons that led us down the path to the infamous one-on-one files that consumed so much of this proceeding.
The Commission cites, and relies heavily, in the context of the December 29, 1996 "incident", on the case of Reeves v. Sanderson Plumbing Products, Inc., 30 U.S. 133 (2000). In that case the U.S. Supreme Court held that "in appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [Respondent] explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt", quoting Wright v. West, 505 U.S. 277, 296 (1992). Moreover, "once an employer's justification has been eliminated, discrimination may well be the most likely alternative exploration, especially since the employers in the best position to put forth the actual reason for its decision….thus plaintiff's prima facie case, combined with sufficient evidence to find that the employers asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated" Id.
Putting aside for the moment my earlier conclusion that a prima facie case was not established, the Commissions' case in a nutshell boils down to this: the "incident" or patient complaint of December 29, 1996 was substantially, if not entirely, fabricated by Lorraine Shea in an attempt to find grounds for terminating the Complainant, and that the motivating factor in her determination to do so was her knowledge of Complainant's ADHD/Learning Disability. Further, the Commission argues that even on its own terms (assuming some validity to the patient complaint) that the (according to it) abrupt - and apparently quite harshly done - termination in no way resembled the more "progressive" discipline it feels was meted out to other employees in roughly similar circumstances. This putative disparate treatment was, in this scenario, established by the numerous case histories ("one-on-one files") entered into evidence. The Respondent's tardiness and reluctance, to put it mildly, in disclosing and producing such files, is, further proof in the Commission's eyes of the Respondents "dissembling and affirmative evidence of guilt".
The Respondent counters that even an unpersuasive and/or contrived reason, if shown, is not determinative; in other words "it is not enough to disbelieve the employer, the fact finder must believe that plaintiffs' explanation of intentional discrimination" United Technologies Corp v. CHRO, 72 Conn. App. 212, 232 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Importantly also, and I think especially in this case, it argues that discrimination laws do "not prohibit an employer from discharging an employee based on non-discriminatory factors, however subjective and unsound" Haskell v. Kaman, 743 F.2d113, 119 (2nd Cir. 1984). These laws were "not intended as a vehicle for judicial review of business decisions…The employer has the prerogative to be shortsighted and narrow-minded" Starrojiv v. Ebasco Services, Inc., 643 F.2d914, 921-22 (2nd Cir. 1981); absent discrimination, "the employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, so long as its action is not for a discriminatory reason", Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir. 1984).
Looked at solely through the prism of the period December 29, 1996 to January 10, 1997, it is fair to conclude, and I do, that the Commission is right in describing some actions and assertions of the Respondent as being conflicting, contradictory, exaggerated, and/or implausible. There is no reason to doubt that Mrs. Marsellesi did in fact complain to Janet Brancifort on or about January 2, 1997 about an incident involving the Complainant. To do so otherwise would require a belief, for which there is no reason or evidence, that Mrs. Brancifort was an active participant in a conspiracy to rid the Respondent of the Complainant. There are reasons, however, for doubting some elements of this story, which was otherwise faithfully reported by Mrs. Brancifort to Mrs. Shea.
As the transcripts will show the undersigned never believed that part of Mrs. Marsellesi's complaint which claimed that she had smelled alcohol on his (the Complainant's) breath. It is to be recalled that Complainant worked an entire 8-hour shift on December 29, 1996, and necessarily came into close contact with trained medical staff, including nurses, as well as numerous patients. It strains credibility to believe that Mrs. Marsellesi, apart from her own medical condition, could have detected such an odor on Complainant's breath in a common area, while professionals under a duty to report such a fact failed for on entire shift to do so. It is difficult to believe Mrs. Shea could have believed this under these circumstances, although she allegedly did at the time. In fact at the end of this proceeding the Respondent appeared to somewhat back off this claim.
It is also somewhat suspicious that Mrs. Shea's "investigation" involved no other patients, even though the record would indicate that other patients were around the area at the time of the incident, and that no nurses were interviewed even though the nurse station was directly connected with or adjacent to the day room where "incident" allegedly took place. None of the CNA's interviewed were asked to sign the written memos of the statements which were drawn up entirely by Mrs. Shea, and only one of the witnesses, Ms. Lesczcznski, testified.
Ms. Lesczcznski's testimony was also somewhat suspect. For example she claimed Complainant was swearing so loud she could hear him from at least 120 feet away, when it apparently at the same time did not unduly disturb either other patients or hospital personnel in and around the day room and nurses station. Ms. Lesczcznski also adamantly testified that she was clear that Mrs. Shea had called her the following morning (December 30) about this alleged incident, which completely contradicts Shea's testimony that she first heard of this matter on or about January 2, 1997 from Mrs. Brancifort.
Subsequently, Mrs. Shea brought the results of her investigation to her superiors, interestingly and unusually going all the way up to Mr. David Crandall, the then CEO of the hospital. A review of the record will show that all of the superiors involved more of less passively accepted Mrs. Shea's description of this incident along with her perception of and record of Complainant's entire tenure with the Hospital. It is obvious to the undersigned that Mrs. Shea substantially embellished (a/k/a exaggerated) her supposed fear for of the Complainant as she went up the chain of command.
The record clearly establishes some highly unusual circumstances surrounding Complainant's termination. The fact that it was the President of the Hospital himself who made the call was itself exceptional, as was the fact that the Director of Security was called in to be in attendance; according to the latters' testimony this was the only time in his entire career that this had been called for. Significantly, Mr. Crandall went so far in his call to Mr. Navarro as to bar Complainant from the property because of "implied threats…and that we are not going to call the police, but if you violate anything that I said…they will be the first people we notify" (See Tr. 312; CHRO Exh. #9, Appendix 1). There was nothing that had happened, to that point, or was known about the Complainant at that time, that could possibly have warranted such remarks or actions. It was plain to the undersigned at the hearing, and upon further careful review of the record became plainer still, that Mrs. Shea had considerably exaggerated her supposed personal fear of Mr. Navarro to her superiors during the period January 2 to January 10, 1997, and this exaggerated representation is what triggered this unusual manner of termination. It also in all likelihood is what caused this contentious, lengthy, and expensive proceeding to take place.
The record shows that Mrs. Shea had a number of one on one personal meetings with Complainant, and on several occasions had the door to her small office closed and locked. She admitted that she had not feared him then, and in fact had not feared him personally up to and including December 29, 1996. She claimed that she developed a fear thereafter and that because she feared calling Mr. Navarro to terminate him it was decided to have Mr. Crandall call him instead. This purported fear, however, had somehow not prevented her from calling him on or about January 6, 1997 to tell him that he had been suspended. Mrs. Shea's testimony on this score was not credible.
There are, therefore, some reasons for disbelieving elements of Respondent's version as to the events occurring between December 29, 1996 and January 10, 1997. The Commission argues that this disbelief, under Reeves is sufficient to categorize Respondent's reasons for its dismissal of Complainant as pre-textual, and evidence instead of discriminatory discharge. I do not subscribe to this view, however, and do not feel that it suffices to meet the Commission's burden of proof in this case, however unflattering it may be to Respondent.
My conclusion is that an incident of some kind of upsetting behavior did occur on December 29, 1996, however expanded (eg. alcohol on breath) and exaggerated it later became. I believe Mrs. Shea exaggerated her personal fear of the Complainant to her superiors, and exaggerated the severity and nature of this patient complaint in order to make sure that Complainant was in fact discharged. It must be remembered, however, that Mrs. Shea had believed that Complainant should have been terminated in October 1996 when she had gone to Tom Lodge for that very purpose. She conceded that she had been frustrated with the results of her conversation with Lodge, and no doubt wanted to make sure in January 1997 that she presented her case in such a way that this time her superiors would back her: thus the embellishment of her supposed "fear".
Does this coloration by itself prove that Mrs. Shea's and thus the Respondent's, actions were influenced instead by a discriminatory motive based on Complainant's alleged disabilities? I think not, for it needs emphasizing that the Respondent was clear that the discharge was also based on Complainant's past performance and behaviors (ie his entire work record). That record was not stellar to say the least.
In point of fact I find credible all the other negative performance indicia put forward by Respondent, beginning as early as the January 6, 1996 parking lot incident. For again restating, to do otherwise would require concluding that all the other Respondent employees were equally motivated by a discriminatory animus toward the Complainant, a conclusion not supported by even a shred of evidence. In addition to the incident of driving while impaired on company property in January 1996, Complainant had a terrible attendance record involving 13 absences between December 12, 1995 and May 8, 1996 (R Exh. 6). Complainant received a warning (R Exh. 7) and two days later another "occurrence" took place resulting in a 3-day suspension from his supervisor Ms. Dagadou. Several days later Complainant called and admitted he was so impaired that he could not work, the incident which resulted in his prolonged leave of absence, a leave that was extended beyond the norm in order to accommodate the Complainant.
Upon Complainant's delayed return he signed a Return to Work agreement clearly establishing that a future failure of performance could result in discipline and/or termination. In October there were separate disciplinary incidents (CHRO Exh. 6), the first of which culminated in a suspension from work for two shifts for "escalating disruptive behavior" and an "insubordinate attitude" by his supervisor, Lou DeRocco. There is no reason to challenge the veracity of either of these incidents, which resulted in the aforementioned suspension and warning memo (R Exh. 16); hese latter are what the Commission refers to as "progressive discipline" when applied to other employees. Finally, in November an additional warning memo (R Exh. 17) was issued to Complainant referring to a further nine additional attendance issues or occurrences over the previous 6 months.
Therefore it is not accurate for the Commission to charge that Complainant was wrongfully discharged solely, or even necessarily largely, because of a "manufactured" December 29, 1996 complaint, nor is it accurate to allege that Complainant was deprived of a progressive discipline reserved for non-disabled, differently situated employees. In fact the record is replete with warnings to the Complainant, and at least two suspensions prior to his final suspension and ultimate dismissal. Thus, although I believe the patient complaint incident of December 29 was exaggerated, as was Mrs. Shea's alleged fear of the Complainant, there remain ample reasons for Mrs. Shea to have concluded that Complainant was an unfit employee, especially in light of his brief tenure at the hospital (13 months).
The Commission and the Complainant were unable to present any direct evidence that Mrs. Shea, or the Hospital, were motivated or influenced by the latter's ADHD or learning disability in terminating his employment. Indeed, it does appear inherently illogical and inconsistent to allege that attitude on the part of Mrs. Shea when she went to considerable lengths to accommodate treatment of his drinking problem at a time when he had worked less than six months at the hospital.
The Commission also failed in its burden of establishing by circumstantial evidence a disability-based discrimination against the Complainant. Although, a plethora of individual personnel cases were examined (nearly fifty), no pattern of bias or discrimination emerged across a range of protected classes, including sex, race, and national origin. There was little in the record to show what, if any, disabilities resided in this group. The closest parallel to Complainant probably was the case of Michael LaGasse. The latter was a food service aide with cerebral palsy, and the evidence shows that he was treated very considerately, although in part because of his quasi-celebrity status. His case, however, certainly does not show any indicia of bias against the disabled. In any event, the progressive discipline afforded these other individuals, in varying degrees at least, was also afforded the Complainant for the reasons set forth above.
It is thus my conclusion that the Commission has not met its ultimate burden of proving by a preponderance of the evidence that Respondents' rationale for Complainant's termination was but pretext for discrimination. In fact there were valid reasons for terminating Complainant based on his record as a whole - for his one year of employment - and, again looked at in its entirety, - Complainant was afforded more tolerance, or progressive discipline, than the Commission contends. It is unfortunate for everyone that Respondent's actions post December 29, 1996 made this less clear than it should have been at the time or subsequently.
In making this determination I am not unmindful of Respondent's actions. The embellishment of the December 29, 1996 complaint, and Mrs. Shea's exaggerated "fear" of Complainant, as reflected in Mr. Crandall's termination call, no doubt sparked the seeds of suspicion that prompted this complaint by Mr. Navarro; it would have been surprising if it hadn't. The "delay", charitably described, in locating and producing the "one-on-one" files and the Respondent's obduracy generally during the production phase of this case undoubtedly fueled further suspicion and animosity. The Respondent's distasteful efforts to justify the termination based on subsequently obtained information leaves a bad taste as well. It can well and truly be said that the Respondent was often its own worst enemy in this proceeding.
This does not, however, alter the facts that in the end there was insufficient evidence actually in the record to show Respondent's actions were based on disability discrimination. It's personnel practices and case management have to be left to others to improve or rectify.
C. FAILURE TO ACCOMMODATE
The Respondent is correct - again - in noting (Respondent's Brief p. 45) that the Complainant did NOT allege failure to accommodate in either his original or amended complaint. That being true, the determination must initially be that this issue was not properly before me, and must fail in consequence.
Even if this claim had been properly brought it would have been to no avail to the Commission or Complainant. It can hardly be argued that the Respondent failed to accommodate Complainant's alcoholism, or discriminated against him in any way on that basis. After all he was given a prolonged, unusually so, leave of absence for precisely the purpose of addressing his condition. Thereafter, Complainant himself testified that he was alcohol free from July 1996 onward and thus in no further need of accommodation. No basis exists on these grounds.
As to the ADHD/Learning Disability it must again be stressed that the Complainant himself did not request any special accommodation for this condition, and in fact adamantly insisted that he was perfectly capable of performing the essential job functions of a CNA without any. It is difficult indeed to provide a non-requested accommodation. Further, a failure to reasonably accommodate can only lie where the Complainant "establishes that an effective accommodation existed that would render him otherwise qualified", Jackan v. New York State DOL, 20 S F. 3d 562, 566 (2nd Cir. 2000). It is again difficult to see what sort of accommodation could have been requested that would have been relevant, even assuming the Complainant had identified a need for one and requested it. "Accommodating misbehaving employees or forcing others to accept non-compliant behavior is not a reasonable accommodation. See Palmer v. Circuit Court, 117 F. 3d 351, 353, (7th Cir. 1997); Williams v. Wedreall, 79 F. 3d 1003, 1007 (10th Cir. 1996). This is not a valid claim, or one that was made validly.
V. CONCLUSION OF LAW
1. There is no credible evidence in the record to support the claim of wrongful termination of the Complainant on account of his race, color, or gender.
2. Complainant and the Commission failed to establish their prima facie case with respect to their disability claim because Complainant was not disabled under either federal or state law.
3. Alternatively, even assuming the existence of a prima facie case with respect to disability, the weight of the evidence is that Complainant was discharged for performance issues, and that notwithstanding some negative personnel and case management practices, the Respondents reasons for the termination were not pretexts for discrimination based on Complaint's disability.
4. There was no proper claim made that Respondent failed to accommodate Complaint's disability, and, in the alternative, no evidence in the record to support such a claim in any event.
In light of the forgoing, and in accordance with the provisions of General Statutes 46a-86(c), it is hereby ORDERED that the Complaint be, and hereby is, DISMISSED.
Dated at Hartford this 14th day of March 2003 at the Office of Public Hearings.
Honorable Gordon T. Allen
Presiding Human Rights Referee