Robert E. Dwyer v. Waterfront Enterprises, Inc. (2013)

MEMORANDUM OF DECISION IN RE MOTION TO STRIKE # 119

FACTS

The present case arises out of the termination of the plaintiff, Robert E. Dwyer, by his employer, Waterfront Enterprises, Inc., DBA Gateway Terminal, LLC (Gateway), one week after Dwyer returned to work following a heart attack.   Dwyer alleges that his termination was substantially motivated by his diagnosis of various medical conditions attendant to his heart attack and his subsequent request for a leave of absence.   On October 15, 2012, he filed a one-count revised complaint ¹ against Gateway alleging that it discriminated against him on account of his physical disabilities and protected activities in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statute § 46a–60 et seq.²  The allegations contained in Dwyer's revised complaint are set forth below.

Gateway employed Dwyer as superintendent of its dry cargo division from approximately March 24, 2007, until November 29, 2010.   Dwyer's performance at work was satisfactory or better.   On October 31, 2010, Dwyer left work early and went to the hospital after experiencing chest pain.   He was subsequently diagnosed as having experienced a heart attack.

On November 22, 2010, Dwyer reported back to Gateway after being cleared to return to work without restrictions.   At that time, Dwyer's supervisor advised him to take the rest of the week off.   When Dwyer returned to work on November 29, 2010, Gateway's chief operations officer notified him that he was being laid off due to lack of work.   Dwyer maintains that Gateway's dry cargo division was busy and there was no lack of work.

Dwyer alleges that at the time he was terminated he suffered from chronic arteriosclerosis, high cholesterol, high blood pressure and coronary artery disease, and was thus physically disabled under General Statutes § 46a–51(15).   He further avers that these medical conditions—as well as his request for a medical leave of absence, effective from October 31, 2010, to November 22, 2010—were the reason for his termination.   On May 31, 2011, he filed a revised complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) alleging that his termination violated CFEPA.   On March 30, 2012, the CHRO released jurisdiction over Dwyer's claims.   The present case followed.

On December 31, 2012, Gateway moved to strike Dwyer's revised complaint, arguing that it failed to set forth sufficient facts from which it could be concluded that Dwyer was:  (1) “physically disabled” as defined in § 46a–51(15);  (2) discharged because of his disability;  and (3) engaged in activity protected by General Statutes § 46a–60(a)(4).   Gateway further argues that punitive damages are neither authorized under CFEPA nor the common law.   Dwyer filed an objection to Gateway's motion on January 8, 2013, arguing that he has pleaded sufficient facts to support his cause of action and that punitive damages are authorized under CFEPA.   The matter was argued before the court at the short calendar on February 25, 2013.

As more fully addressed below, (1) Dwyer has pleaded sufficient facts to support a claim of discriminatory discharge on account of physical disability in violation of § 46a–60(a)(1);  (2) Dwyer's allegation that he was terminated for requesting a reasonable accommodation sufficiently pleads a violation of § 46a–60(a)(1), even if it fails to plead a violation of § 46a–60(a)(4);  and (3) punitive damages are not authorized under CFEPA.   Accordingly, that Gateway's motion to strike Dwyer's complaint should be granted in part and denied in part.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991);  see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action).

I

Gateway first argues that Dwyer has failed to plead sufficient facts from which it can be concluded that he is “physically disabled” within the meaning of § 46a–51(15).   Specifically, Gateway argues that under CFEPA, an individual is physically disabled only if he or she suffers from a chronic physical handicap, infirmity or impairment.   Since Dwyer has not pleaded any facts establishing that the conditions specified in his complaint are chronic, he has failed to state a claim for a violation of CFEPA.

Dwyer argues in response that he has specifically pleaded that his medical conditions are chronic and that he is not required to plead their causes and symptoms.   Dwyer further contends that he has adequately apprised Gateway of his claim and is not required to plead the evidentiary basis of that claim.

Section 46a–51(15) provides that “physically disabled” refers 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 or reliance on a wheelchair or other remedial appliance or device ․” Because the statute does not define the term “chronic,” many courts have utilized a common dictionary definition.   See, e.g., Setkoski v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV 10 6012794 (May 10, 2012, Domnarski, J.) (54 Conn. L. Rptr. 67, 69) (defining “chronic” as “[o]f long duration, or characterized by slowly progressive symptoms;  deepseated and obstinate, or threatening a long continuance ․ distinguished from acute”);  Wanamaker v. Board of Education, United States District Court, Docket No.3:11–CV–1791 (D.Conn. September 25, 2012) (same);  Hutchinson v. Ecolab, Inc., United States District Court, Docket No. 3:09cv1848 (D.Conn. September 28, 2011) (same);  Martinez v. State Library, 817 F.Sup.2d 28, 55 (D.Conn. September 21, 2011) (same).

Dwyer's complaint alleges that he was “physically disabled within the meaning of [§ 46a–51(15) ] in that he suffered from one or more chronic, physical impairments;  more specifically:  arteriosclerosis, high cholesterol, high blood pressure and coronary artery disease ․” ³ These facts, construed in Dwyer's favor and assumed to be true, support a cause of action under CFEPA.   Dwyer need not, as Gateway suggests, particularize each of his various symptoms, the medications that he must take or the procedures that he may need to undergo in the future.   While our pleading standards require that a plaintiff's complaint include “a plain and concise statement of the material facts on which the pleader relies”;  Practice Book § 10–1;  they do not require that a plaintiff regressively plead all subordinate facts from which all other facts follow, ad infinitum.  “Our Supreme Court has repeatedly eschewed applying the law in such a hypertechnical manner so as to elevate form over substance ․ In accordance with that principle, it has consistently refused to require use of particular statutory buzzwords or phrases in complaints or otherwise to demand more specificity than necessary to give the other party notice of the claims at issue.”  (Citation omitted;  internal quotation marks omitted.)  Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 49, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).  “As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, [a court] will not conclude that the complaint is insufficient to allow recovery.”  Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002).

Whether Dwyer suffered from the conditions alleged in his complaint and whether they were chronic at the time of his termination are factual determinations that a jury must make.   For present purposes, it is sufficient that Dwyer's allegations identify these factual issues as matters to be tried.   More specificity is not required for Gateway to have notice of the facts and issues claimed.⁴

Setkoski v. University of Connecticut Health Center, supra, 54 Conn. L. Rptr. 67, on which Gateway relies, is distinguishable from the present case.   In Setkoski, the trial court relied in part on the plaintiff's failure to “allege that her condition [was] continuing” or otherwise “subject to reoccurrences.”  Id., 69.   Dwyer, however, has specifically alleged that he suffered from chronic conditions, which he has identified by name.   Notably, the characteristics of these conditions—as even Gateway has defined them in its brief—reflect that they are chronic and not transient.

Moreover, Gateway's argument implicitly places a burden on Dwyer to plead how he intends to prove that his conditions were chronic.   This, of course, would force him to expound upon the evidentiary foundations underlying his allegations.   Generally speaking, this is not a requirement that courts have imposed on plaintiffs.   See Craig v. Driscoll, 262 Conn. 312, 343 n.23, 813 A.2d 1003 (2003) (“The defendants ․ challenge the allegations regarding recklessness on the basis that the plaintiffs failed to allege any predicate for their allegations—for example, precisely how the defendants would have known that [the defendant] was intoxicated.   Because matters of evidence are not required to be stated in the complaint;  see Practice Book § 10–1;  we reject the defendants' contention”);  Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 095014599 (March 23, 2011, Young, J.) (51 Conn. L. Rptr. 592, 593) (plaintiff may establish agency of hospital employees by “merely ․ alleg[ing] the three elements of agency.   He does not have to plead evidence, nor would that be proper under our rules of practice, § 10–1”);  Day v. Marron, Superior Court, judicial district of Tolland, Docket No. CV 98 68190 (December 10, 1998, Sullivan, J.) (“[t]he plaintiff having pleaded the fact of recklessness is not required to plead the particular evidence to form the basis for the proof thereof”).

Accordingly, Dwyer has pleaded sufficient facts to support his allegation that he was physically disabled.

II

Gateway next argues that Dwyer has failed to plead the necessary causal connection between his physical disabilities and his termination.   Specifically, Gateway argues that the United States Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), requires a plaintiff bringing an action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq., to prove that the plaintiff's age was the “but-for” cause of the challenged adverse employment action.   Because CFEPA claims are evaluated under the same standard as claims brought under the ADEA, Gateway argues, Dwyer's allegation that his physical disabilities “substantially motivated” Gateway to terminate his employment is insufficient to sustain his claims.

Dwyer argues in response that Connecticut courts have traditionally applied the “motivating factor” test, not the “but-for” test to CFEPA claims, and that several courts have declined to apply the standard set forth in Gross.   Although Connecticut courts may find federal law instructive in interpreting state law, Dwyer argues, they are not bound by it and are free to interpret the law as providing protections exceeding those established by federal law.

In Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104–09, 671 A.2d 349 (1996), our Supreme Court discussed the two models by which courts may allocate the burden of proof in a disparate treatment ⁵ CFEPA case:  the mixed-motive model and the pretextual model.   It is instructive to review these two models before discussing what applicability, if any, Gross has to the present case.

The mixed-motive model originated in the United States Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), wherein the court applied the model to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.  “A ‘mixed-motive’ case exists when an employment decision is motivated by both legitimate and illegitimate reasons ․ In such instances, a plaintiff must demonstrate that the employer's decision was motivated by one or more prohibited statutory factors.   Whether through direct evidence or circumstantial evidence, a plaintiff must submit enough evidence that, if believed, could reasonably allow a [fact finder] to conclude that the adverse employment consequences resulted ‘because of’ an impermissible factor ․

“The critical inquiry [in a mixed-motive case] is whether [a] discriminatory motive was a factor in the [employment] decision at the moment it was made ․ Under this model, the plaintiff's prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a ‘motivating’ or ‘substantial’ role in the employment decision ․

“Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant.  [T]he defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the impermissible factor] into account.”  (Citations omitted;  internal quotation marks omitted.)  Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 105–06.

Under the prextual model—also called the McDonnell Douglas–Burdine ⁶ model—a plaintiff may establish discrimination by inference rather than direct evidence.  “Often, a plaintiff cannot prove directly the reasons that motivated an employment decision.   Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for an employment action ․ From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons.   It is in these instances that the McDonnell Douglas–Burdine model of analysis must be employed ․

“The plaintiff's burden of establishing a prima facie case is not onerous under this model ․ The plaintiff need prove only four elements by a preponderance of the evidence:  (1) that he or she belongs to a protected class;  (2) that he or she applied and was qualified for the position in question;  (3) that despite his or her qualifications, the individual was rejected;  and (4) that after the individual was rejected, the position remained open ․ Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.

“Under the McDonnell Douglas–Burdine model, the burden of persuasion remains with the plaintiff ․ Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff's rejection ․ Because the plaintiff's initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas–Burdine model does not shift the burden of persuasion to the defendant.   Therefore, [t]he defendant need not persuade the court that it was actually motivated by the proffered reasons ․ It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff ․ Once the defendant offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual ․

“The McDonnell Douglas–Burdine analysis keeps the doors of the courts open for persons who are unable initially to establish a discriminatory motive.   If a plaintiff, however, establishes a Price Waterhouse prima facie case, thereby proving that an impermissible reason motivated a defendant's employment decision, then the McDonnell Douglas–Burdine model does not apply, and the plaintiff should receive the benefit of the defendant bearing the burden of persuasion.”  (Citations omitted;  internal quotation marks omitted.)  Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 107–09.

The important distinction between these two models, for purposes of the present case, is that the mixed-motive model requires that a plaintiff prove only that a protected trait was a substantial or motivating factor in the employer's adverse action.   The fact that proper considerations may also have played a role does not relieve an employer from liability.   In contrast, under the pretextual model, the plaintiff must prove, even if only inferentially, that the adverse employment action would not have occurred “but for” improper considerations.  “Once a plaintiff has made a prima facie showing of disparate treatment, two distinctions are crucial in determining whether the facts of a given case will trigger a pretext or a mixed motives analysis.   First, the pretext theory applies in cases involving a single motive for the disparate treatment, whereas the mixed motives theory applies in multiple motive cases, in which there is at least one improper motive and one proper motive.”   (Emphasis added.)  Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 226–27, 929 A.2d 541 (2008).  “The Court has made clear that ‘mixed-motives' cases ․ are different from pretext cases such as McDonnell Douglas and Burdine.   In pretext cases, the issue is whether either illegal or legal motives, but not both, were the ‘true’ motives behind the decision ․ In mixed-motives cases, however, there is no one ‘true’ motive behind the decision.   Instead, the decision is a result of multiple factors, at least one of which is legitimate.”  (Citation omitted;  internal quotation marks omitted.)  Price Waterhouse v. Hopkins, supra, 490 U.S. 260 (White, J., concurring).

The issue thus presented to the court is whether Dwyer is foreclosed by Gross from pursuing a theory of liability based on the mixed-motive model, under which he need only prove that his disability was a substantial or motivating factor in Gateway's decision to terminate him.   Under Gross, the mixed-motive-model is never appropriate in ADEA cases and thus a plaintiff “must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.   The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”  Gross v. FBL Financial Services, Inc., supra, 557 U.S. 180.   It is this framework that Gateway contends must be applied under CFEPA.

A substantial flaw in Gateway's argument is that it assumes that the analytical framework ordinarily applied to CFEPA claims derives from federal case law developed under the ADEA when, in fact, our courts have always applied the burden shifting framework established in cases interpreting Title VII. See Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 104–05 (“[u]nder the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof:  (1) the mixed-motive/Price Waterhouse model ․ and (2) the pretext/McDonnell Douglas–Burdine model” [citations omitted] );  see also Brittel v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998) (“[i]n defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a–60”);  Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009) (“[i]n drafting and modifying the Connecticut Fair Employment Practices Act ․ our legislature modeled that act on its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and it has sought to keep our state law consistent with federal law in this area” [citations omitted] ).   Accordingly, the approach a court must take when analyzing a CFEPA claim is the one developed under case law interpreting Title VII, particularly, Price Waterhouse and its progeny.

Gateway cites to several cases for the proposition that the standard applied under the ADEA governs CFEPA claims.   But these cases—which, notably, all preceded Gross —are properly read as acknowledging that CFEPA and the ADEA once shared the same analytical framework, not that CFEPA's meaning derives from the ADEA. In truth, courts interpreting the ADEA were—like courts interpreting CFEPA—deriving the appropriate framework from Title VII case law.   See Rose v. Board of Education, 257 F.3d 156, 161 (2d.   Cir.2001) ( “[a]lthough originally intended for Title VII suits, we have held that the Price Waterhouse framework applies to actions brought under the ADEA”);  Gross v. FBL Financial Services, Inc., supra, 557 U.S. 183–84 (“the Courts of Appeals to have considered the issue unanimously have applied Price Waterhouse to ADEA claims”) (Stevens, J., dissenting).

It was only in Gross that the Supreme Court held that Title VII's framework was inappropriate for ADEA claims.  Gross, however, did not determine that CFEPA improperly derives its burden shifting framework from Title VII. The task of making such a determination remains exclusively within the province of our appellate courts, and our Supreme Court continues to apply the Price Waterhouse framework despite the United States Supreme Court's ruling Gross.   See Commission on Human Rights & Opportunities v. Forvil, 302 Conn. 263, 277 n.13, 25 A.3d 632 (2011) (“while Price Waterhouse was a plurality opinion, this court adopted its suggested approach in the majority opinion in Miko v. Commission on Human Rights & Opportunities, [220 Conn. 192, 206–07, 596 A.2d 396 (1991) ];  it is therefore binding upon this court”).⁷

Moreover, the court in Gross occupied a much different vantage point in interpreting the ADEA than does a Connecticut court in interpreting CFEPA.   Federal employment discrimination law divides prohibited employment practices among various statutes.   Title VII prohibits discrimination on the basis of race, color, religion, sex and national origin;  the ADEA prohibits discrimination on the basis of age;  and the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq., prohibits discrimination on the basis of physical disability.   Thus, the federal courts—including the Gross court—can interpret identical language appearing in Title VII, the ADEA and the ADA and reach differing conclusions as to what the language means in each instance.   Indeed, the Gross court considered the matter before it one of first impression since it had not yet interpreted the language at issue in the ADEA—”because of”—despite having interpreted the same language under Title VII. See Gross v. FBL Financial Services, Inc., 557 U.S. 174 (“This Court has never held that [Title VII's] burden-shifting framework applies to ADEA claims.   And, we decline to do so now.   When conducting statutory interpretation, we must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.”   [Internal quotation marks omitted] ).   A Connecticut court cannot do the same.   The traits protected at the federal level by Title VII, the ADA and the ADEA are all protected by a single statute in Connecticut—CFEPA—the meaning of which has been previously determined.   It would be largely unworkable to ascribe different interpretations to the same language in the same statute depending on the context in which the statute is invoked.   Because CFEPA's burden shifting framework has consistently derived from Title VII case law, the court shall continue to apply that framework and decline to adopt a new interpretation under the ADEA.

Even if a court were inclined to disregard our Supreme Court's precedent on this matter, Gateway's argument nonetheless fails against our appellate courts' important recognition that “CFEPA defines important rights designed to rid the workplace of discrimination” and that “the act is composed of remedial statutes, which are to be construed liberally to effectuate their beneficent purposes.”  (Citations omitted;  internal quotation marks omitted.)   Vollemans v. Wallingford, 103 Conn.App. 188, 197, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).   Guided by this understanding, the Appellate Court in Vollemans ⁸ declined to apply the rule established in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), that “the period for filing a discriminatory discharge complaint accrues when the employer unequivocally notifies the employee of termination.”  Vollemans v. Wallingford, supra, 103 Conn.App. 189.   Instead, the court held that “the alleged act of discrimination transpires on the final date of employment, rather than when the employee receives notice of termination.”  Id., 219.

In choosing to depart from the federal courts' interpretation of similar employment discrimination statutes, the Appellate Court first observed that decisions of the United States Supreme Court, while often providing useful guidance, are not dispositive of issues of Connecticut law.  “[W]hile often a source of great assistance and persuasive force ․ it is axiomatic that decisions of the United States Supreme Court are not binding on Connecticut courts tasked with interpreting our General Statutes.   Rather, Connecticut is the final arbiter of its own laws.”  (Citation omitted;  internal quotation marks omitted.)  Id., 199.   The court next noted that because the CFEPA provision prescribing the filing deadline was “part of a remedial statutory scheme”;  id.;   it “must be liberally construed in favor of those whom the legislature intended to benefit.”  Id., 218.   Because the United States Supreme Court had failed to recognize the remedial nature of federal discrimination statutes;  see id., 218 n.24;  the Appellate Court was not constrained to adopt the federal standard.  “[W]e are free to depart from [a] federal statutory interpretation upon concluding that it fails to effectuate both the legislative policy underlying the statute at issue and the remedial nature thereof ․” Id., 200.

Applying the principles articulated in Vollemans to the present case, it is evident that utilizing the standard set forth in Gross would not effectuate the remedial nature of CFEPA.   Adopting the but-for standard announced in Gross would instead make it significantly more difficult for plaintiffs to vindicate their claims of discrimination, primarily because of the complicated and onerous burden it would place on them to ascertain which among several motives impelled an adverse employment decision.   See Gross v. FBL Financial Services, Inc., 557 U.S. 191 (“[S]ince the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer.   All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer's decision”) (Breyer, J., dissenting).   Thus, in accordance with the liberal construction afforded to CFEPA, Dwyer need only plead that his physical disability was a motivating factor in his termination.

III

Gateway next argues that Dwyer has failed to plead facts sufficient to establish that he engaged in a protected activity under § 46a–60(a)(4).⁹  More particularly, Gateway contends that a medical leave of absence is not a reasonable accommodation and that requesting a reasonable accommodation is not a protected activity under CFEPA.   In support of its argument, Gateway cites to Setkoski v. University of Connecticut Health Center, supra, 54 Conn. L. Rptr. 67, in which the court held that taking a medical leave of absence is not a protected activity.

In response, Dwyer contends that employers have a duty under CFEPA to offer reasonable accommodations to physically disabled employees.   Dwyer also argues that, under Second Circuit precedent, a medical leave of absence may be a reasonable accommodation under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102 et seq., and that requesting such an accommodation is a protected activity.

Dwyer is correct that employers have a duty under CFEPA to provide reasonable accommodations to physically disabled employees.   In Curry v. Alan S. Goodman, Inc., 286 Conn. 390, 944 A.2d 925 (2008), our Supreme Court determined that the broad intent underlying CFEPA to “stamp out discrimination on the basis of physical disability”;  id., 412;  favored “construing § 46a–60(a)(1) to require employers to make a reasonable accommodation for an employee's disability.”  Id., 415.   The court further determined that once an employee makes a request for a reasonable accommodation, the employer must “engage in an informal, interactive process with the qualified individual with a disability in need of the accommodation ․ [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations ․ In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion.”   (Citation omitted;  internal quotation marks omitted.)  Id., 416.   Simply rejecting an employee's request, the court observed, is “clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant's duty of good faith compliance.”  Id., 418.

Gateway does not dispute its obligations under CFEPA to offer disabled employees reasonable accommodations, but maintains that Dwyer's medical leave of absence was not a reasonable accommodation because it did not enable him to perform the essential functions of his job.   Gateway fails to develop this argument any further, however, and several circuit courts have reached the opposite conclusion when interpreting the ADA. See Robert v. Board of County Commissioners, 691 F.3d 1211, 1217–18 (10th Cir.2012) (“[o]ur precedents recognize that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation”);  Fogleman v. Greater Hazleton Health Alliance, 122 F.App'x 581, 585 (3d Cir.2004) (“[i]n some instances, it may be possible for a requested leave of absence to constitute a reasonable accommodation”);  Humphrey v. Memorial Hospitals Assn., 239 F.3d 1128, 1135 (9th Cir.2001), cert. denied, 535 U.S. 1011, 122 S.Ct. 1592, 152 L.Ed.2d 509 (2002) (“[a] leave of absence for medical treatment may be a reasonable accommodation under the ADA”);  Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998) (“[a] leave of absence and leave extensions are reasonable accommodations in some circumstances”).

As reflected in the decisions of the circuit courts, whether a leave of absence may be considered a reasonable accommodation depends heavily on the facts of the case.   In the present case, the allegations in the revised complaint reveal only that Dwyer requested medical leave from October 31, 2010, through November 22, 2010, and was subsequently terminated on account of that request.   It is far from apparent that Dwyer can prove no facts under these allegations to establish that his leave of absence constituted a reasonable accommodation.   To reach the contrary conclusion would be to hold as a matter of law that no leave of absence of at least the same duration can ever be a reasonable accommodation.   Gateway has offered no case law for such a proposition and the court's independent research did not locate any.   In the absence of any such authority, and at this early in the pendency of the case, the court shall decline to hold that a medical leave of absence can never be, as a matter of law, a reasonable accommodation.

Having determined that Gateway was obligated to reasonably accommodate Dwyer's physical disabilities and that, under some circumstances, a medical leave of absence can be such an accommodation, the court's next task is to ascertain whether the act of seeking a reasonable accommodation is protected by CFEPA.   Gateway's argument that § 46a–60(a)(4) does not offer any such protection is persuasive.   The plain language of the provision lacks any terms bringing the act of seeking a reasonable accommodation within its protective purview.   It is true that in interpreting similar language in the ADA;  see 42 U.S.C. § 12203(a); ¹⁰  several United States circuit courts have held that requesting a reasonable accommodation is a protected activity.   See, e.g., Jones v. UPS, Inc., 502 F.3d 1176, 1194 (10th Cir.2007) (“[w]e have treated requests for reasonable accommodation as protected activity under the ADA”);  Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir.2003) (“we now hold that requesting an accommodation is protected activity for the purposes of § 12203(a)”);  Heisler v. Metropolitan Council, 339 F.3d 622, 630 n.5 (8th Cir.2003) (“the ADA prohibits an employer from retaliating against an employee who seeks an accommodation in good faith”).   But these courts have either acknowledged the weaknesses inherent to their conclusions;  see Kirkeberg v. Canadian Pacific Railway, 619 F.3d 898, 907 (8th Cir.2010) (“[o]ne might wonder how the theory behind [the plaintiff's] retaliation claim can be squared with the text of the statute”);  Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.1997) (“[i]t is questionable whether [the plaintiff] fits within the literal language of the statute:  he filed no charge, nor participated in any investigation”);  or relied upon language that is not present in CFEPA.   See, e.g., Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir.2001) (relying in part on the language of 42 U.S.C. § 12203(b), which provides that “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of ․ any right granted or protected by this chapter”);  Butler v. Prairie Village, 172 F.3d 736, 751–72 (10th Cir.1999) (same).

The few Connecticut courts that have considered the issue have concluded that § 46a–60(a)(4) does not protect an employee who makes a request for a reasonable accommodation.   See Sheehy v. Big Y Foods, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 12 6014260 (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887, 889) (“[t]his court concludes that § 46a–60(a)(4) is precise and specific with respect to what types of acts are ‘protected activities' for purposes of alleging retaliation”);  Setkoski v. University of Connecticut Health Center, supra, 54 Conn. L. Rptr. 67, 70 (“The prohibition against retaliation is to prevent an employer from striking back at an employee who opposes an unlawful employment practice.   Taking leave was not an opposition to an unlawful employment practice and is not a protected activity”).   Similarly, in McKenzie v. Meridian Capital Group, LLC, 35 App.Div.3d 676, 677–78, 829 N.Y.S.2d 129 (N.Y.App.Div.2006), the Appellate Division of the New York Supreme Court interpreted nearly identical language in the New York counterpart to CFEPA's antiretaliation provision as not encompassing the act of requesting a reasonable accommodation: ¹¹  “The plaintiff alleged in her complaint that her employment was terminated in retaliation for requesting additional leave time to accommodate her disability.   However, she did not allege that her request was made in opposition to a practice forbidden by the State or City Human Rights Laws ․ Accordingly, she failed to state a cause of action for retaliatory discharge under those statutes.”  (Citations omitted.)  Id.

The reasoning of the Setkotski, Sheehy and McKenzie courts is more persuasive than that of the circuit courts.   Because the language of § 46a–60(a)(4) is clear with regard to the activities that are protected by the statute, Dwyer's reliance on federal precedent is misplaced.  “Although it is true ․ that we generally look for guidance to case law interpreting Title VII when construing our state fair employment legislation ․ such guidance is unnecessary when the language of our state statutory scheme ․ is susceptible of only one reasonable interpretation.”  (Citations omitted.)  McSweeny v. Hartford, 287 Conn. 56, 69, 946 A.2d 862 (2008).   Even when interpreted broadly, § 46a–60(a)(4), by its express terms, only protects an employee who opposes a discriminatory employment practice or participates in a CHRO proceeding.   Dwyer's allegation pertains to neither of these activities.   Accordingly, his allegation cannot state a claim under § 46a–60(a)(4).

Nevertheless, it would be illogical for the court to recognize an employer's duty under CFEPA to provide a disabled employee with a reasonable accommodation but hold that this duty carries with it no obligation to refrain from retaliating against the employee for seeking the accommodation.   Such a conclusion would render the right to the accommodation virtually illusory and violate the basic tenant of statutory construction that courts are to “construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.”  (Internal quotation marks omitted.)  Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 686, 986 A.2d 290 (2010).¹²  Moreover, it would fail to effectuate the beneficent purposes of CFEPA.   See Vollemans v. Wallingford, supra, 103 Conn.App. 197.

Although § 46a–60(a)(4) cannot reasonably be construed as prohibiting an employer from taking adverse action against an employee who seeks a reasonable accommodation, the prohibition is nonetheless implicit in the employer's duty under § 46a–60(a)(1) to provide the accommodation to the disabled employee.   An employer cannot be said to have met its duty of good faith compliance with the interactive reasonable accommodation process articulated by our Supreme Court in Curry v. Alan S. Goodman, Inc., supra, 286 Conn. 416–19, if it subsequently takes retaliatory action against the employee for invoking that process.   Moreover, the imposition of a corresponding duty to refrain from retaliating against an employee who honestly invokes his or her right to a reasonable accommodation is necessary to “attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve” with CFEPA.  Id., 413.   Employees will naturally be discouraged from pursuing their right to reasonable accommodations for their disabilities if doing so will subsequently open them to retaliatory adverse employment actions by their employers.   This outcome would ultimately deny the protections of CFEPA to those whom it is directly intended to benefit.   Accordingly, Dwyer's allegation that Gateway terminated him for seeking a medical leave of absence, while not sufficient to establish a violation of § 46a–60(a)(4), is nonetheless sufficient to support a cause of action under 46a–60(a)(1).¹³

IV

Gateway next argues that Dwyer's request for punitive damages should be stricken from his complaint because such damages are not authorized under CFEPA.   More particularly, Gateway contends that General Statutes § 46a–104,¹⁴ which sets forth the relief that a court may award a plaintiff bringing a CFEPA claim, contains no reference to punitive damages.   Moreover, Gateway asserts that the majority of trial courts that have interpreted the statute have concluded that punitive damages are not available.

Dwyer argues that § 46a–104 contains expansive language that does not limit the court to awarding only those damages that are specified in the statute.   He further contends that the CHRO has argued in favor of punitive damages and that the remedial nature of the statute supports his request for punitive damages.

As Dwyer and Gateway both acknowledge, our appellate courts have not yet decided whether § 46a–104 permits a court to award punitive damages to a prevailing plaintiff under CFEPA and a split exists within the trial courts.   Of the Superior Court cases cited by the parties, the court's decision in Tomick v. United Parcel Service, Superior Court, judicial district of New London, Docket No. CV 06 4008944 (October 28, 2010, Cosgrove, J.) (51 Conn. L. Rptr. 28), aff'd in part and rev'd in part on other grounds, 135 Conn.App. 589, 43 A.3d 722, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012), presents the most persuasive analysis of the issue.

In Tomick, the court undertook a thorough review of the statutory language and its legislative development.   It noted that several statutes explicitly permit a court to award punitive damages, and that in at least one of these statutes, the legislature employed expansive language similar to that found § 46a–104.   See General Statutes § 22–351a(b) and (c).  Moreover, the court observed that despite being modeled after Title VII, CFEPA omitted the express authorization of punitive damages found in Title VII. Based on its analysis, the Tomick court concluded that “the language of § 46a- 104 does not expressly or necessarily authorize the jury to award punitive damages in [a CFEPA] case.   If anyone could make an award of punitive damages ․ it would be the court, not the jury.   However, reviewing the legislative history, the policy that the legislation was designed to address and this section's language as compared to other statutory sections, the court holds that punitive damages are not authorized ․ to be imposed by either the jury or the court.”  Tomick v. United Parcel Service, supra, 51 Conn. L. Rptr. 36–37.

The Tomick court's conclusion is well supported by the court's analysis and reasoning.   Accordingly, this court adopts the same reasoning and conclusion and holds that punitive damages may not be awarded under § 46a–104.

CONCLUSION

For the foregoing reasons, Gateway's motion to strike Dwyer's CFEPA claim is denied and its motion to strike Dwyer's request for punitive damages is granted.

Brian T. Fischer, J.

FOOTNOTES

FN1. Dwyer's original complaint was served on the defendant on June 21, 2012.   The complaint was subsequently amended after Gateway filed a request to revise..  FN1. Dwyer's original complaint was served on the defendant on June 21, 2012.   The complaint was subsequently amended after Gateway filed a request to revise.

FN2. Dwyer's claim of discrimination is grounded specifically in § 46–60(a)(1), which provides that “[i]t shall be a discriminatory practice in violation of this section ․ [f]or an employer, by the employer or the employer's 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 such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness ․”.  FN2. Dwyer's claim of discrimination is grounded specifically in § 46–60(a)(1), which provides that “[i]t shall be a discriminatory practice in violation of this section ․ [f]or an employer, by the employer or the employer's 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 such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness ․”

FN3. Revised Compl. ¶ 10(a), October 15, 2012..  FN3. Revised Compl. ¶ 10(a), October 15, 2012.

FN4. Indeed, were the court to require such specificity, it is difficult to conceive how Dwyer has not also failed to plead sufficient facts from which it can be concluded that his ailments were “physical,” that they were “impairments” or even that he actually experienced them.   Of course, our rules of pleading do not envisage such detailed factual narratives..  FN4. Indeed, were the court to require such specificity, it is difficult to conceive how Dwyer has not also failed to plead sufficient facts from which it can be concluded that his ailments were “physical,” that they were “impairments” or even that he actually experienced them.   Of course, our rules of pleading do not envisage such detailed factual narratives.

FN5. “Used in [the] general sense, ‘disparate treatment’ simply refers to those cases where certain individuals are treated differently than others.”  Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996)..  FN5. “Used in [the] general sense, ‘disparate treatment’ simply refers to those cases where certain individuals are treated differently than others.”  Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996).

FN6. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)..  FN6. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

FN7. Although the court in Forvil was tasked with interpreting General Statutes § 46a–64c, which pertains to discriminatory housing practices and not discriminatory employment practices, the court derived the standard it applied from federal case law pertaining to employment discrimination.   See Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 202 (“In construing federal fair housing laws, the federal courts have adopted the evidentiary requirements set forth by the United States Supreme Court in federal employment discrimination cases ․ Therefore, we may look to these employment discrimination cases for the appropriate standard ․” [Citation omitted.] )..  FN7. Although the court in Forvil was tasked with interpreting General Statutes § 46a–64c, which pertains to discriminatory housing practices and not discriminatory employment practices, the court derived the standard it applied from federal case law pertaining to employment discrimination.   See Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 202 (“In construing federal fair housing laws, the federal courts have adopted the evidentiary requirements set forth by the United States Supreme Court in federal employment discrimination cases ․ Therefore, we may look to these employment discrimination cases for the appropriate standard ․” [Citation omitted.] ).

FN8. The Appellate Court's decision in Vollemans was subsequently affirmed by our Supreme Court in a per curiam opinion.   The court concluded “that the thoughtful and comprehensive opinion of the Appellate Court majority properly resolved the issues in [the Vollemans ] certified appeal ․ and, therefore, the judgment of the Appellate Court should be affirmed.   Further discussion by this court would serve no useful purpose.”  (Citation omitted.)  Vollemans v. Wallingford, 289 Conn. 57, 61, 956 A.2d 579 (2008)..  FN8. The Appellate Court's decision in Vollemans was subsequently affirmed by our Supreme Court in a per curiam opinion.   The court concluded “that the thoughtful and comprehensive opinion of the Appellate Court majority properly resolved the issues in [the Vollemans ] certified appeal ․ and, therefore, the judgment of the Appellate Court should be affirmed.   Further discussion by this court would serve no useful purpose.”  (Citation omitted.)  Vollemans v. Wallingford, 289 Conn. 57, 61, 956 A.2d 579 (2008).

FN9. General Statutes § 46a–60(a)(4) provides that “[i]t shall be a discriminatory practice in violation of this section ․ [f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under [General Statutes § ]46a–82, 46a–83 or 46a–84 ․”.  FN9. General Statutes § 46a–60(a)(4) provides that “[i]t shall be a discriminatory practice in violation of this section ․ [f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under [General Statutes § ]46a–82, 46a–83 or 46a–84 ․”

FN10. 42 U.S.C. § 12203(a) provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”.  FN10. 42 U.S.C. § 12203(a) provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”

FN11. N.Y. Executive Law § 296(1)(e) provides that “[i]t shall be an unlawful discriminatory practice ․ [for any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.”.  FN11. N.Y. Executive Law § 296(1)(e) provides that “[i]t shall be an unlawful discriminatory practice ․ [for any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.”

FN12. The Court of Appeals for the First Circuit noted that this paradox would also arise from a similar construction of the ADA. See Soileau v. Guilford of Maine, Inc., supra, 105 F.3d 16 (“It would seem anomalous ․ to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge.   This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation”)..  FN12. The Court of Appeals for the First Circuit noted that this paradox would also arise from a similar construction of the ADA. See Soileau v. Guilford of Maine, Inc., supra, 105 F.3d 16 (“It would seem anomalous ․ to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge.   This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation”).

FN13. Because Dwyer's allegation that he was retaliated against for seeking a reasonable accommodation is not grounded exclusively in § 46a–60(a)(4), the court is not constrained to evaluate the sufficiency of the allegation solely under that provision of CFEPA.   As previously noted, the court's primary task on a motion to strike is to determine “[i]f facts provable in the complaint would support a cause of action.”  (Internal quotation marks omitted.)  Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013).   Since the facts alleged in Dwyer's complaint support a cause of action under § 46a–60(a)(1), and because Gateway has been sufficiently apprised of the nature of Dwyer's action;  see Caruso v. Bridgeport, 285 Conn. 618, 627–28, 941 A.2d 266 (2008);  Dwyer's claim is not susceptible to a motion to strike..  FN13. Because Dwyer's allegation that he was retaliated against for seeking a reasonable accommodation is not grounded exclusively in § 46a–60(a)(4), the court is not constrained to evaluate the sufficiency of the allegation solely under that provision of CFEPA.   As previously noted, the court's primary task on a motion to strike is to determine “[i]f facts provable in the complaint would support a cause of action.”  (Internal quotation marks omitted.)  Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013).   Since the facts alleged in Dwyer's complaint support a cause of action under § 46a–60(a)(1), and because Gateway has been sufficiently apprised of the nature of Dwyer's action;  see Caruso v. Bridgeport, 285 Conn. 618, 627–28, 941 A.2d 266 (2008);  Dwyer's claim is not susceptible to a motion to strike.

FN14. Statutes § 46a–104 provides that “[t]he court may grant a complainant in an action brought in accordance with [General Statutes § ]46a–100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs.”.  FN14. Statutes § 46a–104 provides that “[t]he court may grant a complainant in an action brought in accordance with [General Statutes § ]46a–100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs.”

Fischer, Brian T., J.