35 Conn. App. 474 | Conn. App. Ct. | 1994
The plaintiff, Donald Levy, appeals from the judgment of the trial court dismissing his appeal from a decision by the named defendant, the commission on human rights and opportunities (CHRO).
The hearing officer found the following facts. ESPN hired the plaintiff in January, 1980, as a remote operator-truck driver. His duties included driving the truck to various locations where ESPN was covering sporting events, setting up the equipment on location, and performing general maintenance on the trucks. Before being hired, the plaintiff passed a road test and a written examination. No medical examination was required because the defendant had a certificate from a physician dated October 31,1979, stating that he was qualified to operate a remote vehicle. ESPN was aware that the plaintiff’s hearing was impaired when it hired him.
A series of mishaps ensued over the next few months. Shortly after being hired, the plaintiff fell asleep while driving a truck back from a sporting event. A passenger in the truck attempted unsuccessfully to awaken the plaintiff by shouting loudly at him; when the passenger grabbed for the steering wheel, the plaintiff awoke and managed narrowly to avoid an accident. The plaintiff struck an overhang in Louisiana, causing damage to the vehicle, and also struck an overhang while refueling at a gas station in Connecticut.
In November, 1982, ESPN posted an opening for a remote operator for which the plaintiff applied. He did not, however, provide his employer with any updated information regarding his qualifications for the position. Another person, who had extensive experience as a truck driver and mechanic, was selected for that position. The plaintiffs job performance began to deteriorate. On February 20, 1983, he refused to reedit a tape and subsequently walked off his job in the middle of his shift. ESPN posted a second opening for a remote operator on May 13, 1983, but the plaintiff did not apply for that position. He resigned in June, 1983.
On May 23,1983, prior to his resignation, the plaintiff filed a complaint with the CHRO alleging that ESPN had violated his rights under General Statutes § 46a-60 (a) (l)
On December 10,1991, after eight days of hearings, the hearing officer issued her decision dismissing the plaintiffs complaint. On January 27, 1992, the plaintiff appealed the decision of the hearing officer to the trial court, claiming that (1) in light of the direct evidence of discrimination, the hearing officer failed to apply the appropriate standard of evaluating the plaintiffs discrimination claim and therefore failed to shift the burden of proof to ESPN, and (2) the hearing officer’s factual findings were clearly erroneous. A hearing before Hon. David M. Shea, state trial referee, took place on January 5,1993. On February 23,1993, Judge Shea issued a memorandum of decision affirming the decision of the hearing officer. He concluded that the hearing officer properly applied the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to the plaintiff’s employment discrimination claim and that her findings were supported by the evidence. This appeal ensued.
I
The plaintiff first claims that the trial court should have concluded that the CHRO applied an incorrect
We look to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute. See State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989); Zlokower v. Commission on Human Rights & Opportunities, 200 Conn. 261, 265, 510 A.2d 985 (1986); Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 489, 503 A.2d 1151 (1986); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982); Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976). The United States Supreme Court has enunciated two theories of discrimination with differing requirements for establishing a prima facie case and the employer’s burdens of proof and production. These theories are the disparate treatment theory; see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802; and the direct evidence theory. See Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion).
Should the employer carry its burden of production, the plaintiff then has the opportunity to prove by a preponderance of the evidence that the reasons offered by the employer were a pretext for discrimination. McDonnell Douglas Corp. v. Green, supra, 411 U.S. 804.
“The United States Supreme Court recognized that the prima facie case set forth in McDonnell Douglas Corporation was not intended to be an ‘inflexible formulation.’ . . . Rather, the requirements of proof must be tailored to the particular facts of each case. . . . When the plaintiff presents direct evidence of discrimination, the McDonnell Douglas Corporation formulation does not apply . . . but rather a modified standard, the direct evidence theory, applies. . . . This departure from the McDonnell Douglas Corporation test is justified by the court’s interpretation that the shifting burdens of proof required by that case were intended to ensure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ ” (Citations omitted.) Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 204-205, 596 A.2d 396 (1991).
Price Waterhouse v. Hopkins, supra, 490 U.S. 228, enunciated the standard to be applied where there is direct evidence of discrimination.
The trial court properly affirmed the hearing officer’s application of the disparate treatment theory. Despite the plaintiff’s claim to the contrary, there was no direct evidence of prohibited discrimination by ESPN. ESPN removed the plaintiff from the remote operator position because of the repeated incidents within a period of less than four months, in which the plaintiff caused damage to ESPN’s camera equipment and remote vehicles by failing to follow orders and by disregarding his
After the plaintiff was removed from the remote operator position, ESPN asked him to undergo a medical examination, including a hearing test, to determine whether the plaintiff had any medical problems affecting his driving ability. After an examination on April 21, 1990, in which the plaintiff failed his hearing test, Hanley, the physician conducting the test, refused to certify that he was qualified as a truck driver under the motor carrier safety regulations. Accordingly, ESPN assigned the plaintiff to a position as a studio technician.
Although the hearing officer concluded that the plaintiff successfully established an inference of discrimination by virtue of his hearing disability, the plaintiff failed to establish that any improper or discriminatory factor motivated ESPN to remove him from his position as a remote operator and to deny him the same position at a later date. The plaintiff’s hearing was a legitimate factor to consider because it was directly related to his ability to drive a truck safely.
As there was no direct evidence of prohibited discrimination, the hearing officer properly applied the disparate treatment standard.
II
The plaintiff next claims that the trial court improperly substituted its judgment for that of the hearing officer as to whether ESPN satisfied its burden of persuasion under Price Waterhouse v. Hopkins, supra, 490 U.S. 228. We disagree.
The Uniform Administrative Procedure Act governs the judicial review of administrative agency decisions. See Connecticut Light & Power Co. v. Dept. of Public
The trial court correctly concluded that the hearing officer did not apply the direct evidence theory enunciated in Price Waterhouse v. Hopkins, supra, 490 U.S. 228, and did not shift the burden of persuasion to the defendant. The hearing officer adopted the analysis set forth in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802, and concluded that the plaintiff had presented sufficient evidence to establish a prima facie presumption of discrimination. She then concluded that ESPN had articulated a legitimate and nondiscriminatory reason for transferring the plaintiff to a studio position at equal pay, thus rebutting the plaintiff’s prima facie case; “ESPN was concerned for safety and dependability in its remote operations.” She therefore concluded that the plaintiff had not met his burden of proving by a preponderance of the evidence that the reasons offered by ESPN were a pretext for discrimination.
Ill
The plaintiff’s final claim is that the trial court improperly concluded that the hearing officer’s findings of fact were supported by substantial evidence on the record. We disagree.
Under General Statutes § 4-183 (j),
A
The plaintiff first contends that the hearing officer’s finding that “Hanley did not certify [the plaintiff] as to the medical standards set forth in 49 C.F.R. [§ 391.41] et seq. because [the plaintiff] failed the hearing portion of the exam” is clearly erroneous. The results of the plaintiff’s hearing test, administered by Hanley on
The plaintiff was the only witness who testified that the testing procedures were defective. The hearing officer was not required to believe the plaintiff, but could rely on Hanley’s written statement that the plaintiff was unable to hear a forced whisper at five feet. Laufer v. Conservation Commission, 24 Conn. App. 708, 716, 592 A.2d 392 (1991).
B
The plaintiff further argues that the hearing officer’s finding that he never applied for the May 13,1983 opening for a remote operator was clearly erroneous. A review of the record before the hearing officer reveals that the plaintiff never filed an application in response to the letter posted by ESPN announcing the available position. The plaintiff admitted that he never filed a formal or written application, but testified that he responded to the job posting by informally discussing his interest in it with his supervisor, Joe Commare. The plaintiff testified that he met with Commare in his office regarding the position, but Commare was noncommittal and basically gave him no response. Commare testified, however, that neither the plaintiff nor any individuals from within ESPN applied for the May 13, 1983 opening. The hearing officer was free to believe Commare and conclude as she did. See id.
C
The plaintiff’s final claim is that the hearing officer’s findings that the plaintiff’s “job performance began
William Lamb, a member of ESPN’s engineering department, testified to the February 20,1993 incident in which the plaintiff walked off the job in the middle of his shift. A letter describing the incident was also admitted as an exhibit.
The plaintiff claims that the hearing officer ignored his testimony that he felt he was constructively discharged by ESPN, and credited only the testimony of ESPN’s witnesses. It is the hearing officer’s prerogative to assess the credibility of the witnesses and believe or disbelieve any evidence presented. Briggs v. State Employees Retirement Commission, supra, 210 Conn. 214. Thus, the trial court correctly held that the hearing officer’s findings were not clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 4-183 requires that the CHRO be named a defendant. Because, however, the CHRO was in privity with and an advocate for the plaintiff during the administrative proceedings, it believed it could not oppose him on appeal and repudiate a position it had recently espoused. Accordingly, subsequent to the filing of this appeal, on April 20,1993, the CHRO submitted a statement indicating that it could not participate in the appeal in light of Quist v. Commission on Human Rights & Opportunities, Court of Common Pleas for Tolland County, Docket No. 5055 (November 10,1975).
On the same day that he was evaluated by Hanley, the plaintiff also underwent an audiogram at the University of Connecticut Medical Center performed by James Dempsey, an audiologist. Dempsey concluded that the plaintiff met the minimum hearing requirement under the department of transportation standards as well as the requirements of 49 C.F.R. § 391.41 (b) (11) of the motor carriers safety regulations. The plaintiff’s supervisor disregarded the results of the audiogram, however, as it was not performed by a licensed physician in compliance with 49 C.F.R. § 391.43 (a). See footnote 3 for the text of the regulations.
Section 391.41 of title 49 of the Code of Federal Regulations provides in pertinent part: “(a) A person shall not drive a motor vehicle unless he is physically qualified to do so and, except as provided in § 391.67 has on his person the original, or a photographic copy, of a medical examiner’s certificate that he is physically qualified to drive a motor vehicle.
“(b) A person is physically qualified to drive a motor vehicle if that person ... (11) [f]irst perceives a forced whisper voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz 1,000 Hz, and 2,000 Hz
Section 391.43 of title 49 of the Code of Federal Regulations provides in pertinent part: “(a) Except as provided in paragraph (b) of this section the medical examination shall be performed by a licensed doctor of medicine or osteotherapy.
“(b) A licensed optometrist may perform so much of the medical examination as pertains to visual acuity . . . .” (Emphasis added.)
General Statutes § 46a-60 (a) provides in pertinent part: “It shall be discriminatory practice in violation of this section: (1) For an employer, by himself or his agent ... 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 . . . physical disability . . . .”
General Statutes § 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 or from illness, including, but not limited to, epilepsy, deafness or hearing impairment . . . .” (Emphasis added.)
See footnote 4.
The plaintiff has adopted the language of the plurality opinion of Price Waterhouse, which does not specifically refer to a “direct evidence” theory, but, rather, characterizes Price Waterhouse as a “mixed motives” case. Our Supreme Court, however, in applying the Price Waterhouse analysis, has adopted the term “direct evidence theory.” See Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 596 A.2d 396 (1991). Accordingly, we use the term “direct evidence theory” in the present case, in place of the term “mixed motives” theory.
The United States Supreme Court also set forth the disparate impact theory which “applies to patterns and practices which are facially neutral
“Direct evidence has been held to include discriminatory statements by decisionmakers related to the decisionmaking process. See Price Waterhouse v. Hopkins, 490 U.S. 228, 255-58, 109 S. Ct. 1775, 104 L. Ed. 2d 523 (1989); Equal Employment Opportunity Commission v. Alton Packing Corporation, 901 F.2d 920, 924 (11th Cir. 1990). Direct evidence has also been held to include a policy discriminatory on its face. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) . . . .” Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 206.
General Statutes § 4-183 (j) provides in pertinent part: “The [reviewing] court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”