Opinion
No. NNHCV085024072S
September 22, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
By complaint dated October 29, 2008, the plaintiff, Thomas Yester, brought an action pursuant to the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq. against the defendant, the town of Branford. The plaintiff was employed by the defendant in its fire department as a firefighter/paramedic for more than one year before such employment was terminated on January 30, 2008. The plaintiff suffers from a learning disability and from a physical disability, and the defendant was aware of the plaintiff's disabilities when he was hired. The complaint alleges that the plaintiff was able to perform his duties satisfactorily and is licensed by the State of Connecticut Department of Public Health as a paramedic. Moreover, plaintiff claims that he was denied the training opportunities afforded to other firefighters who did not have his disabilities and was terminated from his position as a Branford firefighter because of his disabilities. As a result, the plaintiff claims the defendant's actions constitute employment discrimination and he alleges that he has suffered economic losses and emotional distress because of this discrimination in violation of the CFEPA.
In paragraph twelve of the complaint, the plaintiff alleges that is employment was terminated on January 23, 2008.
On December 11, 2008, the defendant filed an answer and three special defenses. In its answer, the defendant denied that the plaintiff was terminated from his position as a Branford firefighter because of his disabilities or that its actions constitute discrimination in employment in violation of the CFEPA. On April 28, 2010, the defendant, with the permission of the court, filed a motion for summary judgment on the ground that the plaintiff cannot establish a prima facie case of illegal discrimination or, in the alternative, on the ground that the plaintiff cannot establish his ultimate burden of proof that the defendant terminated his employment based on an intent to discriminate against him on account of his alleged disabilities. On May 12, 2010, the plaintiff filed a brief in opposition to the defendant's motion. The matter was heard at short calendar on June 1, 2010. For the reasons discussed herein, the court grants the defendant's motion for summary judgment.
In particular, the defendant alleges that: (1) the plaintiff has failed to state a cause of action upon which relief may be granted; (2) the plaintiff has failed to properly mitigate his damages, if any; and (3) the defendant is protected from liability and damages in this case by the doctrine of governmental immunity.
LEGAL ANALYSIS
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). Once the movant has met his burden, the burden shifts to the opposing party to "present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." Id., 319.
In its memorandum in support of its motion, the defendant presents two arguments. First, the defendant argues that the plaintiff was not qualified for his position as a firefighter/paramedic, and thus, cannot establish a prima facie case of disability discrimination. The defendant contends that the plaintiff had not obtained "medical control," and therefore, "could not perform the duties of a paramedic," which was essential to his position as a firefighter/paramedic. Second, the defendant argues that there is no evidence that the town was motivated by an illegal animus to terminate the plaintiff's employment, and thus, cannot establish a prima facie case of disability discrimination or carry his ultimate burden of proving intentional discrimination. The defendant contends that the evidence indicates that the plaintiff's employment was terminated because he could not obtain medical control and not because of his alleged disabilities. The defendant further contends that "the record unambiguously establishes that the [t]own went to extraordinary lengths to accommodate [the] [p]laintiff's alleged disabilities . . . [and] also establishes that the [t]own consistently placed [the] [p]laintiff in a position to succeed." The defendant's evidence includes:(1) a signed and sworn affidavit of Shaun Heffernan, assistant fire chief for the Branford Fire Department; (2) a certified copy of the deposition testimony of the plaintiff, (3) a copy of the collective bargaining agreement between the defendant and the International Association of Firefighters Local No. 2533 (the union); (4) a copy of a paramedic candidate final evaluation of the plaintiff filled out by Kevin Burns on behalf of the New Haven Sponsor Hospital Program (NHSHP); (5) a copy of a letter from NHSHP, signed by Al Gambino, executive director of NHSHP, and Carin M. Van Gelder, associate medical director of NHSHP, denying medical control to the plaintiff, (6) a letter from Jack Ahern, fire chief for the Branford Fire Department, regarding the plaintiff's pretermination meeting; and (7) a letter from Robert Massey, Jr., chairman of the board of fire commissioners, regarding the plaintiff's termination.
Medical control is a statutory requirement for all licensed or certified ambulance services. See General Statutes §§ 19a-179(e) and 19a-180(f). Effective January 1, 2010, "medical oversight" was substituted for "medical control" in §§ 19a-179(e) and 19a-180(f). Public Acts 2009, No. 09-232, §§ 30 and 33. Since this case was filed prior to the adoption of P.A. 09-232, medical control will be used as the operative term.
In response, the plaintiff counters that having "regional control" is not a job requirement in the Branford Fire Department and that he meets the minimum qualifications for the position of a firefighter/paramedic as delineated in the collective bargaining agreement between the town and the union. The plaintiff argues that the jury should "be permitted to infer that the defendant is prevaricating when it advances the claim that its reason for terminating the plaintiff after three years of service was his inability to meet the minimum qualifications for his position" because he did meet them. In support of his objection, the plaintiff submits the following evidence: (1) a copy of a letter sent to Heffernan from Cheryl Waskiewicz, a behavioral health nurse practitioner; (2) a copy of the plaintiff's paramedic license; and (3) a copy of the plaintiff's certification from the National Registry of Emergency Medical Technicians.
The parties have used the terms "medical control" and "regional control" interchangeably.
It should be noted that the plaintiff's evidence is unauthenticated. See Conn. Code Evid. § 9-1. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). A court has discretion, however, to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. CT Page 18247 Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Since the defendant has not objected to the unauthenticated documentary evidence, it is submitted that the court may consider all of the plaintiff's evidence in ruling on the motion for summary judgment.
General Statutes § 46a-60(a) provides in pertinent part: "It shall be a discriminatory practice in violation of this section: (1) For an employer . . . 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 . . . learning disability or physical disability . . ." The Supreme Court has recognized, however, that "[w]e look to federal law for guidance in interpreting state employment discrimination law, and analyze claims under our act in the same manner as federal courts evaluate federal discrimination claims." Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705 n. 11, 900 A.2d 498 (2006). Nevertheless, while there are four theories of employment discrimination under federal law; see Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 103-04, 671 A.2d 349 (1996); the Connecticut Supreme Court has only recognized three theories of employment discrimination: (1) disparate treatment; (2) disparate impact; see id., 104; and (3) failure to make a reasonable accommodation. See Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008) (recognizing reasonable accommodation as theory of employment discrimination in Connecticut).
"[D]isparate treatment simply refers to those cases where certain individuals are treated differently than others . . . The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status." Levy v. Commission on Human Rights Opportunities, supra, 236 Conn. 104. In his complaint, the plaintiff alleges that he was "terminated from his position . . . because of his . . . disabilities." These are the exact parameters of a disparate treatment claim. "Under 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." Id., 104-05.
Although the plaintiff has failed to articulate which framework applies in the instant matter, it is apparent that the McDonnell Douglas-Burdine model is the appropriate test. The plaintiff has not provided any evidence indicating that there were mixed motives, including an illegitimate motive based on the plaintiff's alleged disability, in the defendant's decision to terminate the plaintiff's employment. Moreover, the plaintiff has argued in its opposition brief that the jury should "be permitted to infer that the defendant is prevaricating when it advances the claim that its reason for terminating the plaintiff after three years of service was an inability to meet the minimum qualifications for his position." This argument falls directly under the framework of McDonnell Douglas-Burdine. Because the plaintiff has raised no objection to its application, the court will analyze the claims according to this standard.
"In the disability context, a prima facie case for disparate treatment is established under the [ McDonnell Douglas-Burdine model] if the plaintiff shows: (1) he suffers from a disability or handicap, as defined by [General Statutes § 46a-51]; (2) he was nevertheless able to perform the essential functions of his job, either with or without reasonable accommodation; and that (3) [the defendant] took an adverse employment action against him because of, in whole or in part, his protected disability." Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 426. "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." Levy v. Commission on Human Rights Opportunities, supra, 236 Conn. 108. As to the first prong of this analysis, the court finds that the plaintiff has alleged a disability in his complaint.
With respect to the second prong required, namely, whether the plaintiff was able to perform the essential functions of his job either with or without reasonable accommodation, a number of statutory provisions control. A paramedic in Connecticut is licensed by the Commissioner of Public Health. General Statutes § 20-206ll. "[A]n applicant for a license as a paramedic shall submit evidence satisfactory to the commissioner . . . that the applicant has successfully (1) completed a mobile intensive care training program approved by the commissioner, and (2) passed an examination prescribed by the commissioner." General Statutes § 20-206mm(a). In addition, "[e]ach licensed or certified ambulance service shall secure and maintain medical [control], as defined in Section 19a-179, by a sponsor hospital, as defined in Section 19a-179, for all its emergency medical personnel, whether such personnel are employed by the ambulance service or a management service." (Emphasis added.) General Statutes § 19a-180(f). Medical control is defined as "the active surveillance by physicians of mobile intensive care sufficient for the assessment of overall practice levels, as defined by state-wide protocols . . ." General Statutes § 19a-179(e). A sponsor hospital is one "that has agreed to maintain staff for the provision of medical [control], supervision and direction to an emergency medical service organization . . . and its personnel and has been approved for such activity by the Office of Emergency Medical Services." § 19a-179(e).
Section 20-206ll(a) provides in relevant part: "The commissioner . . . shall issue a license as a paramedic to any applicant who furnishes evidence satisfactory to the commissioner that the applicant has met the requirements of Section 20-206mm . . ."
In the present case, there is no genuine issue of material fact that the plaintiff was not qualified for his position at the Branford Fire Department. In his affidavit, Assistant Fire Chief Heffernan attests that all paid firefighters hired by the Branford Fire Department after 1994 have been hired as firefighters/paramedics because the fire department operates an advanced life support ambulance service and, therefore, requires its firefighters to be paramedics. The collective bargaining agreement supports this contention, stating that "[e]ach employee hired as a [f]irefighter/[p]aramedic shall . . . successfully complete a state approved paramedic training course within twenty-four . . . months of his/her date of hire and hold a valid card certifying that (s)he is a qualified paramedic." Heffernan attests that the plaintiff was hired to be a firefighter/paramedic on December 17, 2004. The plaintiff testified in his deposition that he was hired as a firefighter/EMT for the position of firefighter/paramedic and admitted that he had two years to become a paramedic.
Heffernan attests that this provision was in effect at the time the plaintiff was terminated from his employment.
Heffernan further attests that "[p]aramedics are required, after training, to become licensed by the state and obtain medical control." The plaintiff himself testified that the next step in the process of being able to work as a paramedic, after passing the licensing examination, was to obtain medical control. Heffernan attests that medical control is provided for paramedics in Branford through NHSHP, a cooperative between Yale New Haven Hospital and St. Raphael's, and that in November 2007, he arranged for the plaintiff to ride with NHSHP in order to obtain medical control. The defendant submitted a copy of the paramedic candidate final evaluation from NHSHP, dated November 7 and November 13, recommending that the plaintiff "does not appear ready to function independently as a paramedic." The plaintiff testified that, after this time, someone scheduled a ride time with two different doctors on two different days for medical control. The defendant submitted a copy of a letter from NHSHP, dated January 4, 2008, in which NHSHP informed the plaintiff and the Branford Fire Department that NHSHP "is unable to provide [the plaintiff] with paramedic level medical authorization due to some persistent concerns with [his] ability to safely and effectively function independently as a paramedic."
The defendant submitted a copy of a letter signed by Fire Chief Ahern, dated January 14, 2008, to the plaintiff informing the plaintiff of a pretermination meeting and that Ahern would be "recommending that the [b]oard of [f]ire [c]ommissioners separate [the plaintiff's] employment with the [t]own of Branford for the reason that [the plaintiff is] still not qualified to function as a [p]aramedic." The plaintiff testified that he was separated from the Branford Fire Department as a career fireman at this meeting. The defendant further submitted a copy of a letter signed by Massey, Chairman of the Board of Fire Commissioners, dated January 23, 2008, informing the plaintiff that the board "by unanimous decision, voted to accept the recommendation of . . . Ahern to separate [the plaintiff's] employment with the [t]own of Branford, effective January 22, 2008."
The plaintiff does not offer any evidence to refute the defendant's evidence that medical control was required for all firefighters/paramedics and that the plaintiff had not obtained medical control by the time of his termination. The plaintiff merely argues that medical control is not a requirement of his position because the collective bargaining agreement never expressly sets forth this requirement. This argument is not persuasive. The collective bargaining agreement states that each employee must "hold a valid card certifying that (s)he is a qualified paramedic." For the most part, the qualifications of a paramedic are statutory. In particular, § 19-180(f) expressly requires an ambulance service to secure medical control for all its emergency medical personnel. The defendant has submitted sufficient evidence to establish that there is no genuine issue of material fact that its fire department operated an advanced life support ambulance service and required all its firefighters to become paramedics and obtain medical control within two years of their date of hire in order to serve as paramedics with its ambulance service. The defendant has further submitted sufficient evidence to establish that there is no genuine issue of material fact that the plaintiff had not obtained medical control at the time of his termination, which was more than three years after his date of hire. Therefore, there is no genuine issue of material fact that the plaintiff was not qualified for his position. As a consequence, the defendant is entitled to judgment as a matter of law because the plaintiff is incapable of establishing his prima facie case.
Because there is no genuine issue of material fact that the plaintiff was not qualified for his position, it is submitted that the court need not consider whether there is a genuine issue of material fact as to whether the defendant took an adverse employment action against the plaintiff because of, in whole or in part, his protected disability.
For all the foregoing reasons, the court grants the defendant's motion for summary judgment.
Ordered this 22nd day of September 2010