Wallace v. Caring Sols.

• Decision Date: 05 July 2022
• Docket Number: AC 43975
• Parties: TYISHA S. WALLACE v. CARING SOLUTIONS, LLC
• Court: Connecticut Court of Appeals

TYISHA S. WALLACE
v.
CARING SOLUTIONS, LLC

No. AC 43975

Court of Appeals of Connecticut

July 5, 2022

Argued February 2, 2022.

Syllabus

The plaintiff, a certified nursing assistant, sought to recover damages from the defendant for an alleged violation of the Connecticut Fair Employment Practices Act (CFEPA) (§ 46a-60), for failing to hire the plaintiff, who is hard of hearing, on the basis of her disability. During the hiring interview with S, the owner and administrator of the defendant, the plaintiff asked S to speak up, as she had trouble hearing her. S subsequently asked how the plaintiff would be able to hear her clients and the plaintiff responded that she had no problem communicating with her nonverbal autistic son. The interview continued with no further questions regarding the plaintiffs disability but, instead, focused on the plaintiffs sporadic work history. After the interview, S received a fax containing employment discrimination information from the plaintiffs mother, which S interpreted as a potential threat of litigation. Thereafter, the defendant did not hire the plaintiff. Subsequently, the plaintiff filed her discrimination action with the trial court, which determined that the plaintiff had not proven that the reason she was not hired by the defendant was because of her hearing disability, and that the reasons given by the defendant for not hiring the plaintiff, the gaps in her employment history, her reliability, and the fax sent by her mother, were not due to intentional discrimination. On appeal to this court, the plaintiff claimed, inter alia, that the trial court applied the incorrect legal standard for determining the defendant's liability under CFEPA.

Held:

1. The plaintiff could not prevail on her claim that the trial court erred in applying the but-for causation standard in reviewing her disability claim pursuant to CFEPA, as the trial court properly applied the motivating factor test as the causation standard, which required the plaintiff to prove only that the illegal discrimination was a cause of the adverse employment action: although the trial court's decision did not state which causation test it applied, the court's use in its memorandum of decision of the phrase "because of," when it stated that the plaintiff had failed to prove that she was not hired because of her hearing disability, was not inconsistent with the court's application of the motivating factor test, as both our Supreme Court and this court have interpreted the phrase "because of in CFEPA as incorporating the motivating factor test; moreover, the language of the court's memorandum of decision was completely consistent with its application of the motivating factor test, as the court's findings made clear that it concluded that the plaintiff had failed to prove that her hearing disability played any role in the defendant's decision not to hire her and, therefore, was not a motivating factor, the record having supported the court's conclusion in crediting S's testimony that she decided not to hire the plaintiff because she had concerns about the plaintiffs work history and felt threatened by the fax from the plaintiffs mother.

2. Contrary to the plaintiffs claim, statements in the defendant's pretrial brief alleging that the plaintiff was not hired because of concerns that her hearing impairment could endanger her clients were not judicial admissions: although it is possible that, in certain circumstances, an attorney's unequivocal representations of facts on behalf of his client could constitute a judicial admission, the defendant made no clear, deliberate and unequivocal or voluntary and knowing concessions of fact, and, instead, set forth the arguments it intended to make based on the evidence it expected to be admitted at trial and explicitly referred to those statements as arguments, and those statements constituted, at most, evidentiary admissions that the trial court was free to accept or disregard; moreover, the plaintiff could not prevail on her claim that the court's findings were clearly erroneous in that the court failed to give sufficient weight to the different explanations offered by the defendant for not hiring the plaintiff, as the record sufficiently supported the trial court's finding that the plaintiff had failed to prove that she was

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not hired because of her disability and the trial court was free to weigh the evidence, consider the parties' credibility, and decide the facts based on all the information, and not just the particular statements on which the plaintiff focused and, accordingly, regardless of the different statements that the defendant made in its pretrial brief, the trial court's finding that the plaintiff failed to prove her discrimination claim was not clearly erroneous.

Procedural History

Action to recover damages for alleged employment discrimination, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Honorable A. Susan Peck, judge trial referee; judgment rendered for the defendant, from which the plaintiff appealed to this court. Affirmed.

James V. Sabatini, with whom, on the brief, was Zachary T. Gain, for the appellant (plaintiff).

George C. Schober, for the appellee (defendant).

Bright, C. J., and Alvord and Lavine, Js.

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OPINION

BRIGHT, C. J.

The plaintiff, Tyisha S. Wallace, appeals from the judgment of the trial court rendered after a trial to the court in favor of the defendant, Caring Solutions, LLC. On appeal, the plaintiff claims that the court erred when it rendered judgment for the defendant because the court (1) applied the wrong causation standard to the plaintiff's discrimination claim and (2) failed to find that certain statements in the defendant's pretrial brief were binding judicial admissions and ignored other statements made by the defendant that conflicted with its purported, nondiscriminatory reason for not hiring the plaintiff. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our disposition of this appeal. The plaintiff has been hard of hearing since birth and a licensed certified nursing assistant since 2002. "She hears at a level of 40 percent in her left ear and 20 percent in her right ear. . . . She is able to hear with hearing aids and can [also] read lips .... She can work as a [certified nursing assistant] provided she wears hearing aids." The defendant provides at-home health care to elderly and disabled individuals "who wish to remain in their homes and need help caring for themselves."

On July 25, 2015, the plaintiff applied for a certified nursing assistant position with the defendant by submitting a preemployment screening form. "At the time of her employment application with the defendant, the plaintiff had sporadic work experience in home health care. . . . When she first became a [certified nursing assistant] in 2002, she worked mainly for nursing pool agencies in nursing homes, including Maximum Healthcare and MGM Healthcare, but these were not listed on either her application or her questionnaire. . . . Her first job as a [certified nursing assistant] was at Avery Heights in April, 2002. ... In May, 2006, for a period of time, she worked at Kettlebrook. . . . She was fired from Kettlebrook for missing too many days of work. . . . From January to March, 2012, she worked for Comfort Keepers as a [certified nursing assistant]. . . . From December, 2014 to July, 2015, she worked as a [certified nursing assistant] or home health aide at Interim Health Care, a home health care agency, but ultimately was not able to work the number of hours she had hoped." (Footnote omitted.)

After submitting the prescreening form, the plaintiff received a phone call from Carol Censki, the defendant's human resources administrator, who asked the plaintiff to come in for an initial interview. On July 28, 2015, Censki interviewed the plaintiff and gave her a preemployment exam, which the plaintiff passed. Censki then had the plaintiff complete a formal application

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for a position with the defendant as either a full-time or part-time caregiver.

On July 30, 2015, the plaintiff returned to the defendant's office for a second interview, this time with Cen-ski and Sandra Sergeant, the owner and administrator of the defendant. "Sergeant is a registered nurse who has worked in hospitals, nursing homes and home health care. . . . She started the defendant home health care company in 2000 with ten employees. . . . She now employs approximately eighty-five people. . . . The defendant provides home health aides for elderly and disabled clients. ... It is a requirement of the job of a home health aide to be able to hear the clients he/she is serving. . . . Sergeant has interviewed thousands of potential employees. . . . Reliability is an essential qualification for a home health aide. . . . Sergeant evaluates the reliability of potential employees based on their work history. . . . The defendant has hired individuals as home health aides with disabilities and has made reasonable accommodations in the past. . . . The defendant hires and trains some [home] health aides directly out of school and also sometimes hires experienced home health aides for a probationary period." During the interview, Sergeant questioned the plaintiff about her certified nursing assistant license, her work experience, and several gaps in her employment history. Approximately twenty to twenty-five minutes into the interview, the plaintiff asked Sergeant to speak up and then informed Sergeant and Censki that she was hard of hearing. Sergeant responded by asking the plaintiff how she would hear her clients. The plaintiff replied that "she had a nonverbal autistic child with whom she had no trouble communicating." Sergeant found this explanation plausible. The interview continued for another ten...