Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

I've returned from vacation today with hundreds of e-mails to dig through and about 3000 posts in various RSS feeds.

But one e-mail I received relating to the Connecticut Supreme Court's decision earlier this month in Curry v. Allan S. Goodman, bears some immediate discussion. The comments are from Attorney Richard Hayber, the attorney representing the employee in that matter.  He has authorized me to re-publish his comments in part here, which I'm pleased to do so and I thank Richard for taking the time to comment. 

[Y]our coverage of this case has failed to point out the most disturbing fact of the case. The employer had a policy of only permitting injured workers to return to work if they had been cleared to "full duty." When asked at a deposition how the company applied this policy, it stated that it would not return an employee to work even if the only restriction he had was to take a 60 second break during the day to stretch his back!!! The Supreme Court held this policy, which foreclosed an individualized analysis of each disabled worker's request for accommodation, to be illegal.

I greatly appreciate Richard's comments and as I've suggested before, readers should read the lengthy decision to get a full appreciation for the contested facts.  Because the case is at the summary judgment stage, however, many of the facts remain disputed.

In my defense, reading the decision again, I do not see the deposition referenced, nor do I believe that the Court placed a particular emphasis on the "full duty" clearance requirement.  In fairness to Richard, however, the Connecticut Supreme Court, in footnote 23, did say that the Court's newly imposed "interactive process" requirement  creates a parallel requirement that assessments of a disability be done on an individualized basis. 

A policy—whether express or by application—that eliminates the individualized assessment of each disabled employee for purposes of reasonable accommodations is for all the reasons articulated in this opinion necessarily illegal. ... Whether the plaintiff ultimately will prevail after an individualized assessment will depend on the interactive reasonable accommodation process.

Ultimately, I agree with Richard that with the Connecticut Supreme Court's imposition of an interactive process for small employers will require those employers to conduct an individualized assessment of an employee's capabilities and abilities.  Because each case is unique and may also have some relationship to workers compensation injuries, employers may want to seek legal assistance in these types of determinations, at least until Connecticut law becomes more settled.

Richard also notes that "most superior court judges had already interpreted our Fair Employment Practices Act to require reasonable accommodations. Employers reading your Blog should not
be as alarmed as you would have them be."  A fair enough point, though there were hardly a significant number of cases in this area to begin with and I don't believe the law was as settled as Richard suggests.  In any event, I think the Curry decision's broad application to employment law warrants the concern that I have sounded.

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Reading the Connecticut Supreme Court case of Curry v. Allan S. Goodman, Inc. decided last week,  I'm struck by how many questions the decision seems to raise -- and how many are left unanswered. I've discussed the case and some questions it raises before, most recently here. 

The case appears to stand for the proposition that an employer must engage in an interactive process with a disabled employee who requests some type of reasonable accommodation.  But another question that arises is: What types of "disabilities" are within the scope of this reasonable accommodation duty under state law? 

The Americans with Disabilities Act has a plain definition of "disability" that reviews the person's condition in relation to a major life activity.  Connecticut's anti-discrimination scheme, however, is different.

In many ways, Connecticut's anti-discrimination provision of Conn. Gen. Stat. Sec. 46a-60(a)(1) is broader in scope because it includes "present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness." Broadening the scope even further are the definitions of these categories in Conn. Gen. Stat. Sec. 46a-51.

So what answer does the Supreme Court say about what types of "disabilities" are covered? It appears to say: All of the above (with emphasis noted below):

Because the text and legislative history illustrate that the intent of the legislature is to stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation), we must not interpret the statute in a way that would thwart this purpose. ....

Accordingly, we adopt the commission’s time-tested interpretation construing § 46a-60 (a) (1) to require employers to make a reasonable accommodation for an employee’s
disability.

This leads to more issues.  For example, the definition of a "mental disability" in Connecticut is essentially anything that is defined as a disorder within the Diagnostic & Statistical Manual IV, which includes diagnoses such as "Pathological Gambling" and "Exhibitionism". 

Some strange questions then arise.  Do employers now need to accommodate "Pathological Gambling" because it falls within the definition of a "mental disability" and perhaps provide an employee with a "break" to play online poker or take a visit to Foxwoods?   Or even more bizarre, does an employer need to provide a "reasonable accommodation" to someone who suffers from Exhibitionism and what would that entail?

As for providing reasonable accommodations to people with "learning disabilities", suppose an employee suffers from dyslexia.  Suppose that this employee is computer programmer, but can't read all the instruction manuals. Must the employer provide an audio version of the same manuals as a "reasonable accommodation" or how about a person who must be available to read those manuals to them? How must an employer provide a reasonable accommodation for others who suffer from similar types of learning disabilities?

While the analysis of the Curry case thus far has noted that it now applies the reasonable accommodation provisions normally found in the ADA to small employers (who were not covered by the ADA),  there is a flip side too: Employers who were covered by the ADA, might need to contemplate reasonable accommodations to disabilities that are much broader than covered by the ADA. 

Is this settled? No.  And it may be that Superior Courts reviewing this case will take a narrow approach to the decision.

But after reading the Curry case over several times, I'm convinced that the importance of this case and its potential scope cannot be understated.   Absent some legislative intervention and oversight, this case has the potential to create lots of work for employment law attorneys in the years to come.

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Like the television show, Lost, reading the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, Inc. will leave readers with more questions than answers at the end of the day.  (For more background on the case, see this prior post.)

Those unanswered and indeed, troubling questions arise from the suggestion by the Connecticut Supreme Court that an employer's duty to accommodate an employee (and engage in the interactive process) may arise even after the employer has already terminated the employee. 

For example, if the employee makes a request for reasonable accommodation after the employee has already been terminated, does the employer have to listen to this request? And more importantly, does the employer then have to reinstate the employee with the new accommodations in place?  And what if the request for accommodation comes a month after the employee has already been terminated, must the employer still consider the request? The decision appears to say "yes" to these questions.

In order to understand this, some background facts on the case are needed as described by the Court:

The plaintiff  began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor  weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff  injured his back during work when lifting a case of liquor. ... [He] returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. ...

When the plaintiff returned to work, the defendant negotiated with the plaintiff’s union and placed him in a night shift position, working the ‘‘split line’’ in the  warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff’s union and the defendant. ..
When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases [part of the job of a night-shift position]. ...

[By] March 7, 2001, however, [Plaintiff's physician] indicated that the plaintiff had not improved as expected and that his light duty restriction— ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds—likely would be ‘‘permanent.’’ ...

Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff’s employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff’s attorney sent a letter to one of the defendant’s managers, Richard Conroy, advising him of the defendant’s obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.

As the Supreme Court recognized, it is up to the employee to initiate the request for a reasonable accommodation, not the employer.  Here, the Court found that the employee's placing his name on a "bid list" for a warehouse position and the letter from the employee's attorney after the employee was terminated was sufficient to start the request for reasonable accommodation. 

In the present case, the plaintiff made an affirmative request to continue working the warehouse night shift in March, 2001. In addition, the plaintiff’s counsel, in his April 19, 2001 letter to the defendant, requested that the defendant: (1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions. These actions satisfy the plaintiff’s burden of initiating the interactive process.

The defendant’s response to this request was merely to reject it. Conroy, the defendant’s manager, stated during his deposition that, upon receiving the letter from the plaintiff’s counsel, he did not reconsider his decision, confer with anyone else, review any records, or conduct any investigation or cost-benefit analysis of the hardship that the proposed accommodation would cause the defendant. The record reflects no effort by Conroy or any other representative of the defendant to contact the plaintiff or his counsel to engage in any additional, meaningful discussion. We conclude that this response is clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant’s duty of good faith compliance.

From an employer's perspective, this is a disturbing because it seems to suggest that an employer's obligations to provide a reasonable accommodation continues after an employee has already been terminated.  Moreover, it suggests that "demand letters" (in which an attorney demands that the employer take certain action, like paying severance or reinstating the employee) can also be a requests for reasonable accommodation.

In addition, this decision suggests that even though the employee may not make a reasonable accommodation while employed (and only applies to be considered for a position with the company without explanation), the employer must still consider any request by the employee made after the employee was terminated.

It is unclear whether the employer will be filing a motion for rehearing in the case to rule on this issue. But if left unchallenged, this part of the Court's decision could be the real legacy of the case and set the stage for lots of demand letters for disabled workers even after they've already been fired.

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A few years ago, there was lots of debate among attorneys about whether summary judgment was still a disfavored remedy in employment discrimination cases in federal court.  (For those readers unclear what "summary judgment" is, the Wikipedia entry is a pretty good start and George's Employment Blawg has a nice post about how to best prepare a motion for summary judgment.) 

If the latest in a series of recent decisions by Judge Vanessa Bryant is any indication (see prior posts here, here and here), summary judgment is still alive and well. 

In Grunberg v. Quest Diagnostics, Inc., Judge Bryant was faced with a multi-count complaint alleging claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq., and Connecticut common law.  The court granted Quest's request for summary judgment on each and every count. 

The decision itself is fairly routine in its analysis of the issues. Among the notable points:

• Employees cannot rely on generalized statements of progressive discipline in an employee handbook to create a "contract" claim, particularly if the employer has set forth adequate disclaimers.
• An employee cannot prevail on an FMLA claim, where the employer can show that it had already made a decision to remove the employee from his/her position prior to the exercise of FMLA rights.  This is important for employers to understand; the employee need not be notified of the decision in order to invoke this protection, but the decision must have already been made in one fashion or another.

So, does this decision signal a trend of granting summary judgment in Connecticut?  No, at least not generally. Certainly, Judge Bryant has shown that she is not afraid to use this procedural device to dispose of cases.  But each federal district court judge in Connecticut has their own style of handling cases.  Indeed, in a prior post, I noted that two federal court judges even outlined their summary judgment philosophies in their chambers practices.

For example, Judge Thompson believes that "dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case." ...  Judge Droney, however, states that, "in employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court."

Thus, when employees and employers are in federal court, the best way to evaluate a case may not be to merely look at the merits of the case, but to also understand the judge's philosophy and history as well.  An employer who may have a shot at summary judgment (thereby avoiding the cost of a trial) may value a case entirely differently than a party who knows that the case is going to trial regardless of what the parties uncover during discovery. 

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