220 Conn. 307 | Conn. | 1991
The plaintiff, John N. Adriani, appeals from the judgment of the trial court dismissing his appeal from a decision of the named defendant, the commission on human rights and opportunities (commission). The commission had dismissed the plaintiffs employment discrimination complaint without a hearing on the basis of its finding that there was no reasonable cause to believe that a discriminatory practice had been committed by the plaintiffs employer. Because we conclude that the trial court improperly denied the plaintiff the opportunity to present evidence extrinsic to the record, we remand the case for further proceedings.
On January 20,1988, the plaintiff resigned his position as a buyer for the defendant, the United Illuminating Company (UI), after he had been given the choice of either resigning or being fired. The plaintiff had been employed by UI since September, 1969. On April 14, 1988, the plaintiff filed a complaint with the commission alleging that UI had violated his rights under General Statutes § 46a-60 (a) (1)
On February 2,1990, the plaintiff, pursuant to General Statutes § 46a-94a, filed an appeal in the Superior Court from the commission’s dismissal of his complaint and its denial of his request for reconsideration.
On appeal, the plaintiff claims that the trial court improperly: (1) concluded that there was substantial evidence to support the commission’s finding that there was no reasonable cause for believing that UI had discriminated against the plaintiff on the basis of a physical disability; and (2) refused to allow the introduction of evidence outside the record to support the plaintiff’s claim of procedural irregularities at the agency level.
I
Before addressing the plaintiff’s claim that the trial court should have reversed the commission’s finding of no reasonable cause, it is necessary that we review the facts pertinent to this issue. In 1980, the plaintiff was promoted to a position as a buyer in the purchasing department at UI. The plaintiff’s performance evaluation for the latter half of 1985 rated him as good overall, but noted some reservations about the plaintiff’s attitude toward his job. His 1986 year end evaluation noted significant problems in the plaintiff’s performance, which was rated as marginal overall. The report
The plaintiff took a medical leave of absence from his job from December 14,1987, to December 29,1987, because of high blood pressure. That same month, the plaintiff, on the advice of Nesdale, sought professional counseling with UI’s employee assistance program, which in turn referred him to John Dolan, chairman of the psychiatry department at St. Vincent’s Medical Center. On or about January 7,1988, William Manniel, manager of training and development for UI, received a letter from Dolan concerning the plaintiff. The letter stated that, largely as a result of a personality clash between the plaintiff and his supervisor, the plaintiff suffered from hypertension and that this condition had become more serious in recent months. Dolan “strongly” recommended that the plaintiff be transferred to another job within UI.
General Statutes (Rev. to 1987) § 46a-83 (a) provides that “[a]fter the filing of any discriminatory practice complaint, the chairman of the commission shall refer the same to a commissioner or investigator to investigate and if the commissioner or investigator determines after the investigation that there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, he shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.”
We first note the limited scope of review to be exercised by the trial court in reviewing a determination that there is no reasonable cause to believe that a discriminatory practice has been committed. “Judicial
Before we can apply the substantial evidence test, however, we must resolve the parties’ conflicting contentions about the nature of the reasonable cause determination. The plaintiff contends that in making this determination, the investigator, and the commission when reviewing the investigator’s recommendation, may consider all of the evidence gathered, but the focus of the inquiry should be on the complainant’s representations concerning the alleged discrimination. Moreover, the plaintiff asserts that the commission is not entitled to draw inferences or make credibility determinations that would bear upon disputed material facts. The defendants, however, contend that the commission is allowed not only to consider all the evidence gathered, including that unfavorable to the complainant, but also to make findings concerning material issues of fact by drawing inferences and weighing the credibility of witnesses. We agree with the defendants.
In Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988), the Appellate Court addressed this specific issue. That court rejected
We conclude, as did the Appellate Court in Ierardi, that the reasonable cause standard requires the commission to consider all reliable probative evidence,
We conclude that a necessary corollary to allowing the commission to consider all relevant evidence gathered during the investigation is that in making the reasonable cause determination, the investigator, and the commission when reviewing the investigator’s recommendation, are entitled to make findings on disputed issues of material fact by weighing the credibility of the witnesses and drawing inferences.
Even in the absence of claims of overt discrimination, only in the rare case would there be no issues of material fact concerning a discrimination claim. In the present case, for example, the availability, at the time of the plaintiff’s termination, of one of the positions to which he sought to be transferred was a disputed issue of material fact. Under the plaintiff’s view, the investigator would not be allowed to make a finding on that issue. In light of the fact that § 46a-83 contemplates that an investigator will examine all the relevant evidence and the likelihood that material issues of fact will remain after an investigation, we conclude that the investigator must be entitled to resolve such issues if the reasonable cause determination is to serve any practical purpose.
Finally, we emphasize that the standards of proof applicable to the reasonable cause determination are not the same as those that apply at the hearing stage. Reasonable cause, and the analogous probable cause standard, require a lesser showing than the preponderance of the evidence standard; Ierardi v. Commission on Human Rights & Opportunities, supra; and therefore, the nature of the reasonable cause determination is entirely distinct from a ruling on the merits made after a hearing.
The evidence concerning the statement allegedly made by Manniel that UI considered the plaintiff a “medical liability” necessitated a credibility determination between Manniel and the plaintiff, and the investigator and the commission found that Manniel was the more credible party. As we noted above, it is necessary that the commission be allowed to make such credibility determinations if the reasonable cause determination is to serve its intended purpose of screening claims.
Before reviewing the evidence concerning UI’s attempts to transfer the plaintiff, we must consider the plaintiff’s performance record because it is relevant to UI’s
The plaintiff’s employment history supports UI’s contention that his poor record was a major roadblock to its attempts to find another position for him. From 1985 through the time of the plaintiff’s termination, there was an ongoing attempt to accommodate the plaintiff’s requests to transfer to another job. In addition to the performance problems noted above, UI officials also cited attitude problems as reasons why the plaintiff was difficult to transfer. The existence of problems with the
We do not find it necessary to review in detail the evidence concerning the specific positions that the plaintiff claims were available at the time of his termination. Suffice it to say that the record provides substantial evidence to support the commission’s determination that either the plaintiff was not qualified for the positions or that the positions were not in fact available at that time. Finally, we note that the record also includes evidence that between 1985 and 1989, UI accommodated numerous employees with disabilities that included back problems, hand disabilities, anxiety and stress. We conclude that the commission’s determination that there was no reasonable cause to believe that UI committed a discriminatory practice was reasonable in light of the substantial evidence in the record.
II
The plaintiff next claims that the trial court improperly denied his motion to supplement the agency record by introducing evidence of alleged procedural irregularities that undermined the commission’s determination of no reasonable cause. We conclude that the trial court’s denial of this motion was improper.
General Statutes (Rev. to 1987) § 4-183 (f) provides that an administrative appeal “shall be confined to the record” but that “[i]n cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court.” “An appeal
In his complaint, the plaintiff alleged that the commission failed to perform its statutory duty to determine whether reasonable cause existed. The plaintiff also claimed that the commission’s procedures favored the dismissal of cases without regard to merit and prevented the staff of the commission from making fair reasonable cause determinations. The complaint stated that these allegations of procedural irregularities would require the presentation of proof not contained in the agency record.
At the first trial court hearing, the plaintiff sought to introduce the testimony of James Noonan, the commission’s investigator on this case; Philip Murphy, commission counsel; and Leslie Brett, chairperson of the commission. The plaintiff contended that the testimony of these three witnesses would establish that: (1) neither Noonan nor the commission applied the “reasonable cause” standard in deciding whether to dismiss the plaintiff’s complaint; and (2) the commission had a quota system whose goal was to close a certain number of cases each month, and, as a result of this system, Noonan was pressured to reach a “no cause”
The plaintiff aptly notes that, assuming his allegations of procedural irregularities are correct, the first rationale proffered by the trial court for its decision would be appropriate only if the court conducted a de novo review of the evidence underlying the commission’s determination of no reasonable cause. When, however, the trial court applies the substantial evidence test in reviewing the commission’s decision to dismiss the complaint, as it did in this case, it is inappropriate to refuse extrinsic evidence of alleged procedural irregularities on the ground that the existing record is adequate to conduct the review. The substantial evidence test assumes that an agency’s decision is not tainted by procedural irregularities that implicate the validity of the decision itself. Where there is a question, as there is in this case, as to whether an agency favored a certain outcome or applied an incorrect standard in reaching its decision, the court must determine whether the alleged procedural irregularities did in fact occur before it can utilize the substantial evidence test.
The case is remanded for further proceedings in accordance with this opinion.
In this opinion Peters, C. J., Covello and F. X. Hennessy, Js., concurred.
General Statutes (Rev. to 1987) § 46a-60 (a) (1) provides: “It shall be a discriminatory practice in violation of this section:
“(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation or physical disability, including, but not limited to, blindness.”
“[General Statutes (Rev. to 1987)] Sec. 46a-83. complaint: investigation; conciliation; DISCLOSURE; SUBPOENA, (a) After the filing of any discriminatory practice complaint, the chairman of the commission shall refer the same to a commissioner or investigator to investigate and if the commissioner or investigator determines after the investigation that there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, he shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.
“(b) No commissioner or investigator may disclose what has occurred in the course of such endeavors provided the commission may publish the facts in the case and any complaint which has been dismissed and the terms of conciliation when a complaint has been adjusted.
“(c) In the investigation of any complaint filed pursuant to this chapter, the commission may issue subpoenas requiring the production of records and other documents relating to the complaint under investigation.”
In his appeal to the Superior Court, the plaintiff named as defendants UI, the commission and Vincent Festa, the chairperson of the commission.
The trial court also rejected the plaintiff’s contention that his rights to procedural due process under the federal constitution were violated because the commission dismissed his complaint without allowing a hearing, sworn testimony, confrontation of witnesses or the opportunity to examine documents. Although the plaintiff included this issue in the preliminary statement of issues on appeal, he did not brief it and it is therefore deemed abandoned. State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).
There is no entry in the 1987 performance evaluation indicating that the plaintiff was given such a deadline. William Manniel, UI’s manager of training and development, told the investigator, however, that the plaintiff had told him that he had received his final disciplinary warning and faced the prospect of termination.
General Statutes § 46a-83 was amended by Public Acts 1989, No. 89-332. Among other things, that act specifically defined the “reasonable cause” standard. The amended version of the statute, however, does not apply to complaints pending on January 1,1990, and is therefore not applicable to the present case. See Public Acts 1989, No. 89-332, § 6.
The commission contends that hypertension is not a “physical disability” as that term is used in General Statutes § 46a-60 (a) (1). General Statutes (Rev. to 1987) § 46a-51 (15) defines “physically disabled” as referring “to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes as from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device.”
Dolan’s letter stated that the plaintiff’s hypertension had become a serious problem in recent months. Hypertension is defined as “abnormally high arterial blood pressure.” Webster’s Third International Dictionary. In addition, the plaintiff had taken a medical leave of absence from work during the last two weeks of 1987 as a result of high blood pressure. On the basis of this record, we conclude that the plaintiff was “physically disabled” within the meaning of § 46a-51 (15).
Our conclusion is also supported by the fact that this claim was not raised during any of the proceedings at the agency level. Therefore, the plaintiff was not provided with an opportunity to provide additional medical documentation for inclusion in the agency record. Under these circumstances, it would be unfair to foreclose the plaintiff’s claim on this basis.
We note, however, that this formulation of the reasonable cause standard affects only those claims pending on January 1,1990. Claims filed after that date are controlled by the statutory definition of reasonable cause provided in the amended version of General Statutes § 46a-83. See footnote 6, supra. We express no opinion on whether the amended statute was intended to articulate the standard articulated in Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 580-81, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988).
See footnote 2, supra.
We note that the Appellate Court suggested that it would reach a contrary conclusion. See Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 581 n.5, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988). For the reasons set forth below, we disagree with that conclusion.
We reject the plaintiff’s argument that the use of some hearsay statements by the investigator in making his recommendation that the complaint should be dismissed mandates that we exercise de novo review of the finding of no reasonable cause. It is well established that, even at the hearing stage of adjudicative proceedings by agencies, hearsay is admissible if it is reliable and probative. Jutkowitz v. Department of Health Services, 220 Conn. 86, 108, 596 A.2d 374 (1991). We conclude that the hearsay statements at issue here, which involved statements by UI employees about what they had been told by other UI employees, were sufficiently reliable to be considered by the investigator. Moreover, we note that only a portion of the evidence upon which the investigator relied constituted hearsay.
The plaintiff asserts that the analysis contained in the investigator’s report and the staff attorney’s memorandum recommending the denial of the motion for reconsideration indicate that the commission misunderstood the nature of his claim. Specifically, he asserts that the portions of those documents that discuss whether his removal from his position as a buyer was based on his past performance are irrelevant because his claim was not that UI discriminated against him by terminating him as a buyer, but rather, that UI failed in its obligation to make a reasonable effort to accommodate his physical condition by transferring him.
We first note that the plaintiffs claim that UI did not “reasonably accommodate” his disability appears to be based on an analogy to the protection afforded by the federal Rehabilitation Act of 1973, 29 U.S.C. § 793 et seq. and 41 C.F.R. § 60-741.6 (d). We do not address whether provisions of General Statutes § 46a-60 (a) (1) forbidding an employer from discriminating on the basis of a physical handicap are coextensive with the provisions of the federal statute, especially the “reasonable accommodation” duty under that statute. Under federal law, “[ejmployers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies.” School Board of Nassau County v. Arline, 480 U.S. 273, 289 n.19, 107 S. Ct. 1123, 94 L. Ed. 2d 307, reh. denied, 481 U.S. 1024,107 S. Ct. 1913, 95 L. Ed. 2d 519 (1987); cf. Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987) (“an employer is not required to find alternative employment for an employee who cannot perform his job unless the employer normally provides such alternative employment under its existing policies”).
In the present case, the plaintiff claims that UI, upon receiving Dolan’s letter, stopped its ongoing effort to place him in other departments and thereafter refused to consider transferring him to any available positions because of his hypertension. We conclude that such conduct, if proven, would constitute a discriminatory act forbidden by § 46a-60 (a) (1). We reject, however, the plaintiff’s claim that, even assuming that he was slated for termination at the end of January of 1988 and that there were no available jobs for which he was qualified within UI at the time that Dolan’s letter was received, this case would still constitute a “mixed motives” case in which the employer’s action was motivated by both proper and improper factors. See Price Waterhouse v. Hopkins, 490 U.S. 228, 247, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion). This conclusion is con
With respect to the plaintiffs assertion that both the investigator’s report and the memorandum of the staff attorney for the commission misconstrued the nature of his claim, we note that the complaint did not clearly state the basis of the claim and therefore the commission’s conclusion that he was alleging that his removal as a buyer was made on discriminatory grounds was understandable. In any event, the commission’s consideration of the evidence of the plaintiffs performance record is still pertinent because this evidence corroborated UI’s claim that its repeated attempts to accommodate the plaintiff’s request for a transfer were stymied by the fact that managers in other departments were not interested in the plaintiff because of his performance record.
The plaintiff also contends that Nesdale made a statement providing direct evidence of discrimination. Specifically, the plaintiff claimed that in January of 1988 Nesdale had “brushed [him] off” when he inquired about a job opening and told him there now was no chance that he would ever get a transfer to another job within the company. We disagree with the plaintiff’s characterization of this statement as “direct evidence” of discrimination. First, the plaintiff’s affidavit, although not clear on the timing of this alleged statement, suggests that it was made before the receipt of Dolan’s letter. Moreover, even if it was made after the letter was received, the statement could also reasonably be construed to mean that the plaintiff’s poor performance record made transfer impossible, and therefore it is not inconsistent with the commission’s determination of no reasonable cause.
We note that, had the commission found that the plaintiff was entitled to a hearing, the hearing officer would have had to determine which of two different theories to apply in weighing the proof in this case: (1) the direct evidence, or mixed motives theory; see Price Waterhouse v. Hopkins, 490 U.S. 228, 246-48, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion), and 276-77 (O’Connor, J., concurring); Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 202-203, 596 A.2d 396 (1991); or (2) the disparate treatment theory. See Texas Department of Community Affairs
In Price Waterhouse v. Hopkins, supra, 275-76 (O’Connor, J., concurring), the court held that, under the direct evidence theory, once the plaintiff has shown by direct evidence that an impermissible motive was a substantial factor in an employment decision, the defendant must prove by a preponderance of the evidence that the same decision would have been made even if the improper motive did not exist. In order to establish a prima facie case under the disparate treatment theory, the plaintiff must prove that: (1) he is a member of a protected class under the statute; (2) he applied for and was qualified for a position for which the employer was seeking applicants; (3) he was denied the position despite being qualified; and (4) the employer continued to seek applicants for the position after denying the plaintiff’s application. See McDonnell Douglas Corporation v. Green, supra, 802. The burden then shifts to the employer to provide a legitimate nondiscriminatory reason for its action. Id. If the employer does so, the plaintiff then has the opportunity to show that the reason provided by the employer is pretextual. Id., 804.
We note, however, that this choice of theories is irrelevant to the reasonable cause determination. If the commission determines, on the basis of either direct or circumstantial evidence, that there is reasonable cause to believe that a discriminatory motive has played a role in an employment decision, the complainant is entitled to a hearing. See Price Waterhouse v. Hopkins, supra, 249-50 (plurality opinion). Accordingly, it would not be proper for the commission, having made such a determination, to dismiss a complaint on the ground that the employer has sufficient proof to demonstrate that the same action would have been taken in the absence of the discriminatory motive. This adjudicative function must be left to the hearing officer.
The memorandum of the commission’s staff attorney recommending the denial of the plaintiff’s request for reconsideration does include a section that engages in this type of improper analysis. That portion of the memorandum, however, was mere dictum because the commission, having adopted the investigator’s findings, resolved all questions of material fact in favor of UI. Because'this improper analysis was not necessary to the commission’s determination of no reasonable cause, it does not provide grounds for reversal.
As noted in footnote 12, supra, the staff attorney misconstrued the issue in this case by focusing on whether the plaintiff was qualified to continue to serve as a buyer, rather than whether he was qualified for any available positions within UI at the time Dolan’s letter was received. The memorandum makes clear, however, that the commission’s decision to dismiss the complaint was made on the basis of its agreement with the findings of the investigator, and therefore it is those findings we shall review.
This same principle governs the commission’s finding that the plaintiff had been given a verbal warning by Nesdale in the middle of December, 1988, that he would be terminated if his performance did not improve within the next thirty days. The commission credited the statements of Manniel and Nesdale over that of the plaintiff, who claimed that no such statement was ever made.
In his affidavit, the plaintiff contended that his supervisor’s criticism of his performance, as reflected in the evaluations, was unjustified and unfair.
In his offer of proof, the plaintiff stated that he would prove that Noonan used a “litigation worthy” standard, not the “reasonable cause” standard, that Noonan did not understand the reasonable cause standard and that Noonan was under pressure to reach findings of no cause. The plaintiff also indicated that he intended to question Murphy about testimony Murphy gave before the Governor’s Task Force on the Commission on Human Rights and Opportunities concerning the reasonable cause standard and the “litigation worthy” standard, or, alternatively, to introduce a copy of the report of the Governor’s Task Force on the Commission on Human Rights and Opportunities. Finally, the plaintiff sought to have Brett testily as to why General Statutes § 46a-83 was amended and why she was named as the new chairperson.
We do not address, however, whether notice of the intention to supplement the record in order to introduce evidence of procedural deficiencies must always be provided at some point prior to the initial hearing, whether in the complaint or another pleading. See Billings v. Commission on Human Rights & Opportunities, 18 Conn. App. 241, 244, 557 A.2d 147 (1989).
The commission challenged the introduction of this testimony on two other grounds. First, the commission claimed that, contrary to the plaintiff’s assertions, Noonan had never been served with a subpoena. This factual issue, however, was never resolved, nor did the trial court rely on this ground in denying the plaintiffs request to supplement the record. We therefore do not address it.
The commission also argued that neither Murphy nor Brett was involved in this case in any manner and that their testimony and the report of the Governor’s Task Force on the Commission on Human Rights and Opportunities were irrelevant to the issues in this case. We do not address this argument, however, because the record is not sufficiently clear on this point and it is not material to our disposition of this case. At a minimum, Noonan should have been allowed to testify because he was the investigator who made the preliminary finding of no reasonable cause. At the hearing on this matter, the trial court will have to rule on the relevance of the additional evidence proffered by the plaintiff.
Finally, we reject the commission’s assertion that the testimony of Noonan was irrelevant because under § 31-125-11 of the Regulations of Connecticut State Agencies, only the chairperson of the commission, not an investigator, can dismiss a complaint. We find this argument a bit disingenuous. In addition to the fact that the commission adopted Noonan’s findings in toto, it would seem likely that if Noonan was under pressure to reach findings of no cause, then that pressure flowed from the hierarchy of the commission.
The form of our remand is governed by the principle that when a trial court concludes that an administrative agency has made invalid or insufficient findings, the court must remand the case to the agency for further proceedings if the evidence does not support only one conclusion as a matter of law. Persico v. Maher, 191 Conn. 384, 410, 465 A.2d 308 (1983); Denby v. Commissioner, 6 Conn. App. 47, 57-58, 502 A.2d 954 (1986). Because the plaintiff’s claims implicate the validity of the commission’s finding of no reasonable cause, and because the credibility determinations underlying that finding may have been affected by the alleged irregularities, we conclude that the case must be remanded if the trial court finds that the commission’s decision was tainted by procedural deficiencies.