Wallace v. Caring Solutions, LLC

• Decision Date: 05 July 2022
• Docket Number: AC 43975
• Citation: 213 Conn.App. 605,278 A.3d 586
• Parties: Tyisha S. WALLACE v. CARING SOLUTIONS, LLC
• Court: Connecticut Court of Appeals

213 Conn.App. 605

278 A.3d 586

Tyisha S. WALLACE

v.CARING SOLUTIONS, LLC

AC 43975

Appellate Court of Connecticut.

Argued February 2, 2022

Officially released July 5, 2022

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

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

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

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 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 Censki 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 minutes, during which time Sergeant mostly focused on the plaintiff's work history because it was sporadic.

After the interview, Sergeant went to her office to get a business card to give to the plaintiff. While the plaintiff and Censki waited for Sergeant to return, the plaintiff told Censki that she had a really hard time hearing Sergeant. When Sergeant returned, she gave the plaintiff her business card and told the plaintiff to call her. The plaintiff, however, never called Sergeant as requested.

"Following the interview, the plaintiff's feelings were hurt and her self-esteem damaged. ... She was upset, started crying, and called her mother, Mitzi Treadwell-Green, who is also a registered nurse. ... Treadwell-Green was ‘appalled’ and indignant to learn that Sergeant had asked the plaintiff if she was going to hear the clients. ... She asked the plaintiff for Sergeant's contact information and told the plaintiff that she was going to fax Sergeant some information about discrimination." Thereafter, Treadwell-Green "faxed Sergeant a document in the form of a notice issued by the Connecticut Department of Labor" concerning "[d]iscrimination laws regarding disabilities." Sergeant was shocked to receive the fax and believed it was "some sort of implied threat." The defendant did not hire the plaintiff. Then, on July 13, 2017, the plaintiff filed a one count complaint alleging that the defendant had violated the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60,¹ because the defendant had "failed to hire the plaintiff on the basis of her hearing impairment" and, thus, had "intentionally discriminated against the plaintiff." On August 15, 2018, the defendant filed an answer and special defenses to the plaintiff's complaint. The defendant denied the plaintiff's allegations of discrimination and, as a special defense, pleaded that "[t]he defendant had legitimate nondiscriminatory reasons for not hiring the plaintiff."

A two day trial to the court was held on June 6 and 7, 2019. At trial, Sergeant testified that she initially had concerns about hiring the plaintiff because of her limited work history and the significant gaps in that work history. Although the plaintiff had been a licensed certified nursing assistant since 2002, she had "sporadic work experience in home health care." Given her work history, Sergeant was not confident that the plaintiff would be a reliable employee. Sergeant also testified that receiving the fax further compounded her concerns about hiring the plaintiff. Sergeant also testified that she had hired and accommodated employees with disabilities in the past. According to Sergeant, it was due to her concerns about the plaintiff's reliability and the fax that she received from Treadwell-Green, and not because of the plaintiff's hearing impairment, that she decided not to hire the plaintiff. The court found Sergeant's testimony as to her reasons for not hiring the plaintiff to be credible and persuasive.

The court found that the plaintiff had proven "by a preponderance of the evidence that she is disabled within the meaning of CFEPA" and had "established that she is able to perform the essential functions of the job as a home health aide or [certified nursing assistant] with reasonable accommodation in the form of hearings aids." The court also found, however, that the plaintiff "has not proven ... that the reason she was not hired by the defendant was because of her hearing disability, or that the defendant was unwilling to accept her as an employee with hearing aids as a reasonable accommodation. Rather, the court finds that the reasons given by the defendant for not hiring the plaintiff ... were not due to intentional discrimination because of the plaintiff's disability." Accordingly, the court rendered judgment for the defendant. The plaintiff appealed.

I

The plaintiff first claims that the court applied the incorrect legal standard for determining the defendant's liability when it concluded that the plaintiff's disability was not the "but-for" cause of the defendant's failure to hire her instead of considering whether her disability was a "motivating factor" in the defendant's hiring decision. The difference between the two tests is significant. Under the but-for test, the plaintiff must establish that the illegal discrimination was the cause of the adverse employment action. Under the motivating factor test, the plaintiff must prove only that the illegal discrimination was a cause of the adverse employment action. Specifically, the plaintiff argues that CFEPA, properly interpreted, does not require a plaintiff to prove but-for causation. The plaintiff further claims that under the motivating factor test, the court would have been required to render judgment for her because the evidence established that her hearing disability was a cause of the defendant's decision not to hire her. The defendant argues that, pursuant to the United States Supreme Court's decision in Gross v. FBL Financial Services, Inc. , 557...