Levy v. Commission on Human Rights and Opportunities

• Decision Date: 27 February 1996
• Docket Number: No. 15087,15087
• Citation: 671 A.2d 349,236 Conn. 96
• Parties: , 7 NDLR P 411 Donald LEVY v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.
• Court: Connecticut Supreme Court

Page 349

671 A.2d 349

236 Conn. 96, 7 NDLR P 411

Donald LEVY v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

No. 15087.

Supreme Court of Connecticut.

Argued Sept. 29, 1995.

Decided Feb. 27, 1996.

Jeffrey J. Mirman, Farmington, for the appellant (plaintiff).

Robert B. Hempstead, Torrington, with whom was Joseph F. Keefe, for the appellee (defendant Entertainment and Sports Programming Network, Inc.).

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

BERDON, Justice.

The principal issue presented in this case is whether the hearing officer of the defendant commission on human rights and opportunities (commission) correctly allocated the burden of proof between the plaintiff and the defendant employer in determining if the employer was liable for a discriminatory employment practice.

The plaintiff, Donald Levy, filed a complaint with the commission alleging that the defendant Entertainment and Sports Programming Network, Inc. (ESPN), discriminated against him on the basis of his physical disability--a hearing impairment--in violation of General Statutes § 46a-60. ¹ The commission's investigating officer found reasonable cause to believe that ESPN had discriminated against the plaintiff and certified the complaint for a public hearing pursuant to General Statutes §§ 46a-83 and 46a-84. The hearing officer appointed by the commission found that ESPN was not liable for a discriminatory employment practice. The plaintiff appealed to the Superior Court, which affirmed the hearing officer's decision. On appeal, the Appellate Court affirmed the trial court's decision and the hearing officer's analysis. Levy v. Commission on Human Rights & Opportunities, 35 Conn.App. 474, 646 A.2d 893 (1994). We granted the plaintiff's petition for certification ² and now affirm the judgment of the Appellate Court, though on different grounds.

The hearing officer found the following facts. ³ Aware of the fact that the plaintiff's hearing was impaired, and that he was required to wear a hearing aid, ESPN employed the plaintiff on January 3, 1980, as a remote operator-truck driver. The position required the plaintiff to operate a truck containing sophisticated broadcasting equipment to various broadcast locations and to assist in assembling the equipment for the telecast. Federal regulations required that the plaintiff meet minimum physical requirements, including a minimal level of hearing, before being allowed to drive. See 49 C.F.R. § 391.41 et seq. ⁴ Because ESPN accepted a medical certificate from Robert Marshall, the plaintiff's physician, dated October 31, 1979, stating that the plaintiff had the requisite level of hearing, the plaintiff was not required to undergo a medical examination when he was initially employed.

Within four months of the date of his employment, the plaintiff was involved in a series of incidents that raised concerns regarding his ability to perform safely the duties of his position. First, a few days after being employed, the plaintiff nearly caused an accident when he fell asleep at the wheel while returning from a sporting event in Rhode Island. Next, an ESPN vehicle was almost rendered inoperative when the plaintiff failed to notice that the safety valve to the compressor governor, which regulates the brakes, was venting pressurized air. On another occasion, while operating an ESPN vehicle, the plaintiff hit an overhang at a Connecticut gas station. Similarly, while backing up a truck at a location in Louisiana, the plaintiff failed to heed shouted warnings from his coworkers and struck the overhang of a building, thereby causing damage to the vehicle.

In addition, the plaintiff was involved in two separate unrelated incidents in which he improperly activated a television camera. The first incident caused minor damage to the equipment, while the second incident completely "smoked" the camera. After the second incident, Joseph Commare, ESPN's director of engineering, suspended the plaintiff for two weeks without pay, effective April 5, 1980. Commare then asked Rick McDowell, ESPN's safety manager, to evaluate the plaintiff's competence as a truck driver. McDowell concluded that the plaintiff's driving history demonstrated that he could not safely operate a truck.

On April 21, 1980, after he had been removed from the remote operator position, ESPN directed the plaintiff to undergo a medical examination by Bainbridge Hanley, a physician, to ascertain whether the plaintiff met the physical standards set forth in the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 391.41 et seq. ⁵ As part of the examination, the plaintiff's hearing was evaluated by means of a forced whisper test, which was administered by Hanley's wife. The plaintiff failed the forced whisper test, and, as a consequence, Hanley refused to certify that the plaintiff was qualified to be a truck driver. ⁶

Subsequently, on April 29, 1980, the plaintiff was transferred at his existing salary to the position of studio technician III. That same day, Barry Black, ESPN's director of human resources, sent an intraoffice memo to Commare stating that "this transfer is necessary due to the fact that [the plaintiff's] hearing impairment has prevented him from satisfactorily passing ... [a] physical examination required for him to continue in his present capacity of Mobile Unit Driver." The plaintiff, however, testified that he was simply told by Commare that he was being removed from his position as a truck driver because of his hearing disability.

With respect to the plaintiff's transfer from the position of remote operator-truck driver to that of studio technician, the hearing officer found that on "April 29, 1980, Mr. Commare advised [the plaintiff] that he was being transferred out of the remote area because of his hearing disability." ⁷ The hearing officer then concluded that the April 29, 1980 memo from Black to Commare, "without more, showed that ESPN deliberately used [the plaintiff's] hearing impairment as the basis of its decision to transfer [the plaintiff]."

After his transfer, the plaintiff periodically applied for other positions within ESPN, including a remote operator-truck driver position that was posted in November, 1982. ESPN offered various reasons why the plaintiff was never hired to fill any of those positions. Counsel for ESPN noted in correspondence with the commission's investigator that, with respect to "the remote operator positions [sought by the plaintiff in 1982], it was already ESPN's belief that because of his hearing impairment, [the plaintiff] was disqualified for them under [department of transportation] regulations...."

Ultimately, on June 4, 1983, the plaintiff resigned. On May 23, 1983, prior to his resignation, the plaintiff filed a complaint with the commission alleging that ESPN had violated his rights under § 46a-60(a)(1). The plaintiff claimed that, because of his hearing impairment, ESPN had removed him from the remote operator-truck driver position, had deprived him of promotional and other employment opportunities, and had constructively discharged him from his employment.

I

Connecticut statutorily prohibits discrimination in employment based upon race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, and learning disability or physical disability. General Statutes § 46a-60(a)(1). Additionally, state law protects individuals from employment discrimination based upon their sexual orientation. See General Statutes § 46a-81c. Nevertheless, express discrimination is legally permissible if the employer proves that the factor in question is a bona fide occupational qualification (BFOQ) reasonably necessary for the normal operation of the employer's particular business. ⁸ General Statutes § 46a-60(a)(1); see Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991) (whether gender is a BFOQ); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (age is a BFOQ for airline captains). Clearly, a minimal level of hearing is a BFOQ for the position of remote operator-truck driver; 49 C.F.R. § 391.41 et seq.; the hearing officer, however, made no finding as to whether the plaintiff met or did not meet that prerequisite. ⁹

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own anti-discrimination statutes. See Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991). Under federal law, there are four general theories of employment discrimination: disparate treatment, ¹⁰ adverse or disparate impact, ¹¹ perpetuation into the present of the effects of past discrimination, ¹² and failure to make a reasonable accommodation. ¹³ ABA Section of Labor and Employment Law, Employment Discrimination Law (2d Ed.1983) p. 1. To date, in Connecticut, we have recognized the disparate treatment and adverse impact theories of employment discrimination. ¹⁴

This appeal requires consideration of only the "disparate treatment" type of case. Used in this general sense, "disparate treatment" simply refers to those cases where certain individuals are treated differently than others. ¹⁵ Teamsters v. United States, 431 U.S. 324, 335-36, 97 S.Ct. 1843, 1854-55, 52 L.Ed.2d 396 (1977). The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status.

Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof: (1) the mixed-motive Price Waterhouse model; ¹⁶ Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268 (1989); and (2) the pretext McDonnell Douglas- Burdine model. Texas Dept. of Community Affairs v. Burdine, 450...