Articles

The Connecticut Law Tribune
September 14, 2015

This Connecticut Supreme Court (“Court”) term was relatively quiet in the area of labor and employment, with only a few decisions that impact employers, and the labor, employment, and benefits law advice practitioners give their clients.

Perceived Disabilities Protected Under Connecticut Employment Discrimination Law

In Mirielle Desrosiers v. Diageo North America, Inc., et al., 314 Conn. 773 (2014), state law was found to protect individuals who are perceived to be physically disabled from employment discrimination, not just those that are actually physically disabled.

Plaintiff worked at an alcoholic beverages producer, Diageo North America, Inc. (“Diageo”).  Following a merger, Plaintiff’s position was eliminated and she was assigned a new position.  In this new position, her performance was not satisfactory and she was placed on a performance review plan.  The following month, Plaintiff was told her performance was satisfactory and she was no longer on an improvement plan.  Two months later, Plaintiff requested leave for surgery and Diageo terminated her the next day stating her performance had not sufficiently improved.  Diageo’s conflicting statements about Plaintiff’s performance and its termination of Plaintiff the day after she requested medical leave all but invited Plaintiff to file suit.  Plaintiff’s lawsuit included a claim of unlawful termination based on perceived disability.

At the trial court level, adverse employment action based on perceived disability was not a legally recognized action under state law and the Appellate Court agreed.  The Appellate Court leaned on the unambiguous definition of “physically disabled” which includes “any individual who has any chronic physical handicap, infirmity or impairment” (emphasis added).  The Supreme Court disagreed.

Interestingly, the Court agreed with the Appellate Court’s strict statutory interpretation but reversed based on common sense finding the literal statutory interpretation would lead to a “bizarre result.”  The Court offered the example that an employee with a chronic illness would be protected but not an employee undergoing testing for a potential chronic illness.  The Court found support for its conclusion in the legislative history and in the Connecticut Human Rights and Opportunities Commission’s historical interpretation of the statute.

Although this case created new state law, the federal Americans with Disabilities Act expressly protects perceived disabilities so the net effect of this decision is nothing new.  Practitioners should remind clients that “perceived disability” could include information obtained by an employee based on rumors or gossip, observation, or assumptions based on medical history.  Based on this decision, there is no longer any argument that mere perceptions of a disability are somehow less protected than actual disabilities; discrimination based on either basis is equally discriminatory and equally unlawful under Connecticut law.

Despicable Slurs by a Manager are not Enough to Prove Unlawful Termination

In Doris Feliciano v. Autozone, Inc., 316 Conn. 65 (2015), the Court held that 1) an Autozone supervisor terminated for stealing, failed to show her termination was based on her being Rastafarian, Jamaican, or female despite her supervisor’s “despicable” racial slurs, and 2) the frequent, severe, and pervasive verbal harassment supported her hostile work environment claim.

Plaintiff, a black female who was born in the U.S. Virgin Islands and practiced the Rastafarian religion, worked at Autozone.  In 2007, Autozone’s theft prevention program flagged twenty transactions under a loyalty program within 2 weeks, nineteen of which were made by Plaintiff.  Autozone investigated and ultimately accused Plaintiff of using the program for her own benefit.  Plaintiff was terminated.  Plaintiff sued alleging various claims including failure to accommodate a disability, sexual harassment and termination based on national origin, religion, and race.  The Trial Court granted summary judgment on all counts in favor of Autozone and the Appellate Court affirmed.  The case was appealed.  The Court affirmed with respect to all counts except the sexual harassment claim.

Regarding the unlawful termination based on national origin, religion, and race, the Court sympathized with Plaintiff but did not find a sufficient nexus between the comments and the termination.  Plaintiff put forth evidence that her manager repeatedly referred to her as “f’ing Jamaican;” suggested Jamaicans live in grass huts, wear grass skirts, drink out of coconut shells, and eat cats and dogs; ridiculed her dreadlocks; suggested her hair was dirty; and even wore a wig made of dreadlocks.  However, Plaintiff could not establish the connection between this extreme conduct and her termination.   Instead, the Court found her discharge by a second manager for stealing was a legitimate non-discriminatory action.  Further, Plaintiff failed to demonstrate other employees were treated more favorably or that there was a pattern of disparate treatment against her and those like her

Regarding the hostile work environment claim, the Court found the comments and behavior were so frequent and pervasive that the facts could support the claim.  Plaintiff showed that her manager rubbed up against her three times, made fun of her hairstyle, called her a man who was not capable of feeling pain, made sexual vulgar comments about female customers, made sexually provocative statements, and repeatedly touched his crotch in front of her, all in the span of several months.

Although this case does not establish new law, it is a good reminder that strong animus alone will not make a prima facie case of discrimination where the disciplinary action is legitimate and is unrelated to the animus.  The case is also valuable to practitioners in illuminating the relationship between hostile work environment claims and discrimination claims that may be built around the same or similar facts.

Reinstatement of Certified Nursing Assistant Who Delayed Reporting Alleged Abuse Not Contrary to Public Policy

In Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618 (2015), reinstatement of a certified nursing assistant who delayed reporting alleged resident abuse at a nursing facility was not contrary to public policy.

Grievant, a certified nursing assistant at the Westport Health Care Center (“Westport”), overheard two co-workers talking about an incident where a registered nurse made a resident cry.  Grievant investigated over the next two days, confirmed that a registered nurse had in fact treated a resident roughly, and reported the incident.  When Westport found out, it investigated and suspended the registered nurse as well as the two employees who had talked about the incident but not reported it.  Since Grievant already had a final written warning, she was terminated.  She grieved the termination.

The arbitrator determined that although Grievant failed to timely report the alleged abuse, she was the only employee who reported it.  Therefore, the arbitrator concluded Grievant’s misconduct was less egregious than that of the other employees and there was no good cause to terminate her.  Instead, the arbitrator suspended Grievant without pay for one month and issued another final warning.  Westport appealed on the ground that the award violated public policy protecting nursing facility residents from abuse.  The Trial Court rejected the argument while the Appellate Court accepted it and vacated the reinstatement.  The case was appealed.

In the Court’s opinion, the arbitrator’s award did not violate public policy.  The Court found there was a public policy at issue but it was not violated based on a four-factor test.  The four factors are 1) guidance offered by statutes, regulations or other embodiments of public policy at issue, 2) whether employment at issue implicated public safety or public trust, 3) the relative egregiousness of grievant’ s conduct, and 4) whether the grievant was incorrigible.  The Court provided lengthy explanations of these factors as well as additional considerations for each one.

The Court concluded every factor was either neutral or weighed against vacating the award.  The Court explained that although laws protect nursing home residents from abuse, most require reporting within 72 hours, not immediately.  The Court was also persuaded since Grievant did not intentionally violate Company policy, was the only employee who reported the alleged abuse, and was unlikely to repeat the misconduct if reinstated.

This case is valuable for practitioners since it sets forth the factors and considerations for determining whether an arbitration award should be vacated based on a violation of public policy.  Due to the decision’s clear enunciation of the law, it is likely to become the seminal case on this issue.

Reinstatement of Police Officer Who Lied About Seizures Not Contrary to Public Policy

Similar to Burr Road Operating Company, the Court upheld an arbitration award reinstating a police officer who lied about his seizures during a medical examination.  Town of Stratford v. American Federation of State, County and Municipal Employees, Council 15, Local 407, 315 Conn. 49 (2014).

Grievant, a police officer, suffered from latent epilepsy which the Town of Stratford (“Town”) knew before he was hired.  Several years later, Grievant had a seizure while driving a police car and struck two parked cars.  He saw both his own doctor and the Town’s doctor after the incident.  When the Town reviewed the reports from both doctors, it found Grievant lied to the Town’s doctor about his medical history. Grievant was terminated.  A three-member arbitration panel found the termination excessive given the seizures did not impact Grievant’s performance and both doctors had reinstated him.  They ordered Grievant reinstated without back-pay, which amounted to a nine-month unpaid suspension.  The Town appealed arguing reinstatement would violate public policy.  The Trial Court upheld the decision based on lack of clear public policy.  The Appellate Court reversed and concluded there was a clear public policy against intentional dishonesty of police officers and remanded the case with the direction to vacate the award.  The case was appealed.

Again, the Court agreed that there was a strong public policy at issue.  However, it concluded the nine-month unpaid suspension was sufficient since, among other considerations, the lie was not significant, not made on duty or under oath, and Grievant’s health did not prevent him from performing his job.

This case serves as another reminder of the difficulty in convincing courts to vacate arbitration awards based on public policy, even where a strong public policy exists.  This case and the Burr Road Operating Company lend much clarity in this area of the law and will likely be widely cited in future cases.

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Each year brings a new focus for the Court.  As the Court begins their new term, employees, employers, and their counsel should remain aware of the Court’s latest leanings.  We look forward to next year’s update.

Robert G. Brody is the founder of Brody and Associates, LLC.  Abby M. Warren is an associate at the firm.  Brody and Associates represents management in employment and labor law matters and has offices in Westport and New York City.