Opinion
No. CV 03 0193581
March 16, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE
The defendant, RE/MAX Heritage, has moved (#105), pursuant to Practice Book § 10-30, to strike the sole remaining count of the plaintiff's complaint on the ground that Connecticut does not recognize a cause of action for discrimination based on "perceived disability" under General Statutes § 46a-60a, et seq., the Connecticut Fair Employment Practices Act.
In her complaint, the plaintiff, Kathleen Mills, alleges that she was employed by RE/MAX Heritage and had been advised that she was a valued employee. On October 10, 2001, the plaintiff informed the defendant that her doctor would be performing a biopsy on a lump found in her breast. On the next day, October 11, 2001, the plaintiff was terminated from her employment.
The plaintiff commenced the present lawsuit claiming that the defendant discriminated against her in violation of General Statutes § 46a-60(a)(1) by terminating her employment because of a belief that the plaintiff would ultimately be diagnosed with cancer and would have to undergo surgery and intensive treatment. The defendant has moved to strike the remaining count of the complaint on the ground that Connecticut does not recognize a cause of action for discrimination based on a perceived disability.
General Statutes § 46a-60(a)(1) provides that "[i]t shall be a discriminatory practice in violation of this section . . . [for an employer, by the employer or the employer's agent . . . 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 . . . physical disability . . ."
"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." (Citations omitted; 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 [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). The court must "take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Bhinder v. Sun, Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "[I]f facts provable in a complaint would support a cause of action, the motion to strike must be denied . . . Moreover, . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 268 Conn. 292.
In Ann Howard's Apricots Restaurant v. Commission on Human Rights and Opportunities, 237 Conn. 209, 676 A.2d 844 (1996), our Supreme Court reversed the lower court decision that a CHRO hearing officer had abused her discretion in finding that the plaintiff had discriminated against a former employee because of its "belief or perception" that the former employee had AIDS. This is because "[o]ur legislature has clearly stated that discrimination based on a physical disability is prohibited." Id., 224, citing General Statutes § 46a-60(a)(1). "It would be both ironic and insidious if the legislative intent in providing the protection of the Fair Employment Act were afforded to persons who actually have a handicap that makes achievement unusually difficult or limits their capacity to work, but the same protection is denied to those whom employers perceive as being handicapped." (Internal quotation marks omitted.) Commission on Human Rights and Opportunities, ex. rel. Samuel Tucker v. General Dynamics Corp. Electric Boat Division, Superior Court, judicial district of New London at New London, Docket No. 517054 (November 22, 1991, Axelrod, J.) ( 7 C.S.C.R. 62) ( 5 Conn. L. Rptr. 700). See also Commission on Human Rights and Opportunities ex rel. John Doe v. Travel and Tour Services, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0519557 (July 12, 1994, Hennessy, J.) (allowing an action to enforce a judgment to proceed where the underlying judgment was based on a finding that the defendant had discriminated against the plaintiff based on a perceived disability).
The defendant relies heavily on Beason v. United Technologies Corp., 337 F.3d 271 (2nd Cir. 2003), in support of its argument that Connecticut does not recognize a cause of action for discrimination based on perceived disability. That decision, however, fails to recognize the existence of our Supreme Court's decision in Ann Howard's Apricots Restaurant, supra, allowing a cause of action to proceed on a perceived disability discrimination theory of liability.
In light of the Supreme Court's decision in Ann Howard's Apricots Restaurant, supra, and the rationale in Commission on Human Rights and Opportunities, ex. rel. Samuel Tucker v. General Dynamics Corp. Electric Boat Division, the defendant's motion to strike is denied.
So Ordered.
William B. Lewis, Judge T.R.