Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities

• Decision Date: 28 May 1996
• Docket Number: No. 15231,15231
• Citation: 237 Conn. 209,676 A.2d 844
• Parties: , 8 NDLR P 93 ANN HOWARD'S APRICOTS RESTAURANT, INC. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.
• Court: Connecticut Supreme Court

Page 844

676 A.2d 844

237 Conn. 209, 8 NDLR P 93

ANN HOWARD'S APRICOTS RESTAURANT, INC. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

No. 15231.

Supreme Court of Connecticut.

Argued March 21, 1996.

Decided May 28, 1996.

Charles Krich, Assistant Commission Counsel, with whom was Philip A. Murphy, Jr., Commission Counsel, for appellant (named defendant).

Gregg D. Adler, with whom was Anne Goldstein, Hartford, for appellants (defendant John Doe II et al.).

Frederick L. Dorsey, New Haven, with whom was William A. Ryan, Hartford, for appellee (plaintiff).

Catherine Hanssens, Kathleen A. Sullivan, New Haven and David Lesser, law student intern, filed a brief for the Connecticut AIDS Action Council et al. as amici curiae.

Before CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

KATZ, Associate Justice.

The principal issue on appeal is whether the trial court properly determined that a hearing officer for the commission on human rights and opportunities had abused her discretion in failing to strike the direct testimony of a defendant who died before he could be fully cross-examined. We disagree in part with the trial court and, consequently, reverse the judgment in part.

This case began in 1991 when the defendant John Doe II, a waiter employed at the plaintiff restaurant, Ann Howard's Apricots Restaurant, Inc. (plaintiff), filed a complaint with the named defendant, the commission on human rights and opportunities (commission), alleging that the plaintiff had discriminated against him in violation of General Statutes § 46a-60(a)(1) ¹ on the basis of the plaintiff's belief that Doe suffered from acquired immune deficiency syndrome (AIDS). The commission investigated the complaint and issued a probable cause finding on January 23, 1992. After attempts at conciliation had failed, the commission certified the complaint for a public hearing pursuant to General Statutes §§ 46a-83 and 46a-84, ² at which hearing officer Deborah S. Freeman presided.

Doe testified during three days of hearings, ³ on August 14, November 2 and November 16, 1992. The first two days consisted of Doe's complete direct testimony, while the third day consisted of Doe's partial cross-examination. Thereafter, all parties agreed to postpone the remainder of Doe's cross-examination in order to permit the testimony of nonparty witnesses. Although hearing dates were scheduled in December, 1992, to complete Doe's cross-examination, those dates were cancelled because Doe became ill. Doe died on February 3, 1993, before he could be cross-examined any further.

After Doe's death, the complaint was amended to substitute for him Annette Blondeau executrix of his estate. Additionally, the commission was added as a party. Soon thereafter, the plaintiff filed a motion to strike Doe's direct testimony because it had not been subject to full cross-examination, but the motion was denied. The hearing officer determined that instead of striking the direct testimony, she would take into consideration the fact that a large part of the direct testimony had not been subject to cross-examination and would, accordingly, afford that portion less weight than any contrary evidence that had been presented during the hearing and that had been subject to cross-examination.

During the three days of hearings Doe testified to the following. He had been hired by the plaintiff in May, 1983. Toward the end of 1990, he began to lose weight and hair and, because he was weak, tired and had shaking episodes, he experienced difficulty in serving food and drinks that spilled easily. Doe initially diagnosed himself with hypoglycemia and placed himself on a special diet to counteract the effects of hypoglycemia. Because his condition worsened, the plaintiff placed Doe on an involuntary leave of absence to commence on December 8, 1990, in order to permit him to recover from his illness. Doe testified that there had been no time limit on this leave and that Kevin Quinn, the plaintiff's general manager, had told him that his job would be available when he was ready to return. During his subsequent medical treatment, Doe was diagnosed with bacterial pneumonia and tested positive for the presence of the human immunodeficiency virus (HIV). While Doe was on the leave of absence, Quinn, other members of the managerial staff, and other employees became suspicious that Doe had AIDS. In March, 1991, when Doe had recovered from pneumonia and was able to return to work, the plaintiff refused to reinstate him. Doe also testified as to the treatment afforded to other employees who had taken leaves of absence to recover from broken bones, pregnancy and a heart attack, and to receive treatment for substance abuse. Doe stated that, unlike those other employees, Quinn required him periodically to check in with management and to present documentation from his physician indicating that he was capable of returning to work.

Additionally, during his direct testimony, Doe offered evidence regarding the damages that he had incurred as a result of the plaintiff's decision to terminate his employment. He discussed the earnings he would have received had he continued to work for the plaintiff in comparison to the earnings he received at other jobs that he took after the plaintiff had discharged him. Moreover, Doe testified as to the reasonable efforts that he had made to find other work, including where he had looked, how often he had looked, and which jobs he had secured. Doe also testified as to his emotional state following his discharge. The plaintiff, however, did not have the opportunity to cross-examine Doe on the issue of damages.

Much of the same evidence pertaining to the plaintiff's liability was presented at the hearing by witnesses other than Doe. Roger Alsbaugh, another waiter who worked for the plaintiff, testified that Doe's appearance began to change toward the end of 1990 in that Doe had lost weight and hair and appeared pale. Furthermore, at that time, Doe's work performance changed in that he began having difficulty carrying certain items to tables. While Doe was on his leave of absence, Quinn asked Alsbaugh whether he thought that Doe had AIDS. Additionally, Alsbaugh testified as to other discussions that management and other employees had had regarding whether Doe had AIDS. Finally, Alsbaugh referred to other employees who had taken leaves of absence to recover from various medical conditions and stated that they all were permitted to return to work.

Sheila Murray, a waitress who worked for the plaintiff, also testified that she had spoken with Quinn regarding Doe's condition. "I asked him what was wrong, if he knew. And [Quinn] said, 'Well,' I remember this, 'oh come on Sheila,' you know, 'it seems quite apparent that [Doe] is dying from AIDS.' " She also testified regarding other employees who had taken leaves of absence for medical reasons, and who, upon recovery from their illnesses, returned to work for the plaintiff. Jessica West, another waitress, testified that when she took a leave of absence, there was no requirement that she either report in during her leave or produce documentation from her physician indicating that she could return to work.

Lastly, Quinn testified to the circumstances regarding Doe's employment and discharge. He stated that even though none of the other employees who had been on leaves of absence had been asked to produce medical documentation regarding their ability to return to work, and none of them had been discharged while on leave, the circumstances surrounding the leaves of absence for those other employees were different than they were for Doe. Quinn explained two differences. "One, the knowledge of what was wrong with the individual and, two, communication with the individuals regarding their treatment and their prognosis for return to work.... In [Doe's] situation, it was very unclear to me as to what was wrong with [him]. I did not know. And the second part of that was that there was no communication between [Doe] and I following a conversation in December until, I believe, late February or early March." Quinn testified that even though Doe had told him at a meeting on December 28, 1990, that Doe had been diagnosed with bacterial pneumonia, he did not find Doe's statements regarding his health to be credible because, in the past, Doe had incorrectly diagnosed himself with hypoglycemia and had lied about seeing a physician. Consequently, Quinn wanted some proof from Doe's physician that he in fact had bacterial pneumonia, that he was being treated for it, and that he could return to work.

Doe had also informed Quinn during their December 28 discussion that he had had blood tests performed as part of his medical treatment, the results of which would be available at the beginning of January. Quinn testified that he had expected Doe to contact him with the test results and with information from Doe's physician indicating when Doe would be able to return to work. When Doe failed to contact Quinn at the beginning of January, Quinn assumed, without knowing whether Doe's condition had improved, that Doe was forfeiting his job with the plaintiff. Quinn further testified that when Doe finally contacted him in March, when Doe's physician released him to return to work, Quinn refused to discuss Doe's health and his ability to return to work, believing that Doe had long since been discharged.

Moreover, Quinn testified that there were other occasions when Doe had been dishonest, including the times when Doe allegedly had made drinks for himself from the plaintiff's bar after the bar had closed, when Doe had failed to share his tips, and when Doe had avoided performing certain tasks. Quinn stated, however, that at the time that he had placed Doe on the leave of absence, he was prepared to reinstate Doe despite those past instances of dishonesty once he was provided with medical documentation that Doe was well enough to return to work....