DOCKET No. HHD CV 13-6045783 S MANSOOR AHMAD & ) SUPERIOR COURT NAVEED AHMAD. Plaintiffs, vs. } JUDICIAL DISTRICT OF HARTFORD ) STATE OF CONNECTICUT, ) RTF DEPARTMENT OF TRANSPORTATION) AT HARTFORD Defendant } 1 FEBRUARY 6, 2015 MEMORANDUM OF DECISION Before this court is the defendant’s motion to strike the revised complaint filed by the plaintiffs, Mansoor Ahmad and Naveed Ahmad. The plaintiffs, taxicab drivers employed by Yellow Cab Company, filed a two count complaint alleging discrimination by the defendant, Connecticut Department of Transportation (DOT) in violation of the Connecticut Fair Employment Practices Act (CFEPA) General Statutes §§ 46a-60 (a) (4), 462-60 (a) (5), 46a- Bradley International Airport to transport passengers. When it was his tum, Msi Som assigned a passenger with a service dog. Because he has a dog phobia, Manso PT Ul ‘wma LG Prrady > sifr/e 3m to take the passenger and was ordered to return to the end of the taxi cab line. Naveed Alinzad, father of Mansoor, who was also employed by Yellow Cab Company, objected and explained that his son suffered from dog phobia, which prevented him from transporting a service dog, As result of this incident, the Yellow Cab Company terminated the employment of both plaintiffs, Ne and the DOT revoked the certificates they held which permitted them to work at Bradley International Airport,10 a 12 13 1 35 16 ur 18 as 20 21 22 23 24 25 26 27 28 The defendant has moved to strike the complaint in its entirety for failure to state a claim, Specifically, the defendant asserts that the plaintiffs have failed to allege facts sufficient to show that Mansoor Ahmad is disabled under General Statutes §46a-51. In addition, the defendant seeks to strike the complaint because the plaintiff cannot demonstrate that he can perform the essential functions of a taxi cab driver. The defendant asserts that an essential function of the plaintiff's employment requires that the plaintiff comply with state and federal law, which prohibits him from refusing to provide taxicab services to individuals with service dogs. Therefore, as a matter of law, the defendant cannot provide reasonable accommodation under §§} 46a-69 and 46a-73 (a). For similar reasons, the defendant seeks to strike the retaliation count as to Naveed Ahmad. In response, the plaintiffs, with virtually no analysis therein, filed with this court a response purporting to be a brief in response to the defendant's motion. The plaintiffs cite one case with respect to the definition of disability asserting merely that the CFEPA’s definition of disability is broader than the definition under the Americans with Disabilities Act of 1990, 42 ULS.C. § 12101 et seq. (2012) (ADA). With respect to the issue of reasonable accommodation, the plaintiffs cite one case which holds merely that employers have a duty to provide reasonable accommodation, including the need to engage in good faith discussion with the employee regarding various options. Although the plaintiffs gave these two issues cursory treatment, this court will nevertheless address them. This court deems all other issues, including retaliation, abandoned by the plaintiffs for failure to brief. “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 210 a 12 3 a4 as 16 a7 18 as 20 an 22 23 24 25 26 27 28 (2003), “The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.” (Intemal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997), “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn, 576, 580, 693 A.2d 293 (1997). “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006); see also Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013) (motion must be denied where provable facts support a cause of action). ‘A. Whether the complaint has alleged a disability under § 46a-51 General Statutes § 46a-51 (20) defines a mentally disabled individual as one “who has a record of, or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatrie Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’ ....” A condition is a “mental disability” under § 46a-51 (20), so long as it appears in the most recent Diagnostic and Statistical Manual of Mental Disorders, which is the fifth edition (DSM- 5). See Commission on Human Rights & Opportunities v. Hartford, 138 Conn. App. 141, 161- 62, 50 A.3d 917 (approving of referee's finding that gender dysphoria was mental disability within meaning of § 46a-51 (20) because disorder appeared in DSM), cert. denied, 307 Conn. 929, 55 A.3d 570 (2012); Conte v. New Haven Board of Education, Superior Court, judicial 310 an 22 13 4 as. 16 ur 18 19 20 21 22 23 24 25 26 27 28 district of New Haven, Docket No. CV-02-0466475-S (May 15, 2003, Skolnick, J.) (“Because [the plaintiff's proffered mental disability] is included in the [most recent DSM}, itis a ‘mental disability’ as defined by General Statutes § 462-51 (20). As a result, [the plaintiff's allegations of clinical depression, and the defendant employer's knowledge of the condition is] sufficient to support a cause of action for a violation of CFEPA.”). “Specific Phobia” is a diagnosable disorder in the DSM-5. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Sth Ed. 2013) Specific Phobia, p. 197. Varieties of specific phobia are coded according to phobic stimulus, one of whic! being “[aJnimal,” a variety exemplified by fear of “spiders, insects, [or] dogs.” (Emphasis added.) Id., § 300.29, p. 198. This court finds that dog phobia qualifies as a mental disabil within the meaning of § 462-51 (20). B. Whether the plaintiff Mansoor Ahmad has pleaded facts sufficient to establish that he can perform the essential functions of his employment with or without reasonable accommodation Although dog phobia qualifies as a mental disability, the plaintiff must also allege facts sufficient to establish that he was able to perform the essential functions of a taxi cab driver with ‘or without reasonable accommodation. Applying the “reasonable accommodation” requirement under the ADA to the CFEPA, the Supreme Court held that a plaintiff claiming disability discrimination under CFEPA must show, inter alia, that “he [or she] was able to perform the essential functions of the job with or without a reasonable accommodation [for his or her disability].” (Internal quotation marks omitted.) Curry v, Allan S. Goodman, Inc., 286 Conn. 390. 415, 944 A.2d 925 (2008). The defendant asserts that because taxi drivers may not refuse10 an 12 13 aa as. 1s a7 aa 19 20 22 23 24 2s 26 27 28 service to a patron with a service animal pursuant to federal and state law, the plaintiff eannot demonstrate that he can perform the essential functions of a taxi cab driver. ‘What constitutes an essential function of a particular job is a fact specific inquiry, but in general, such functions must be fundamental to the position, and not merely marginal. See 29 CAFR. § 1630.2 (n); Curry v. Allan S. Goodman, Ine., supra, 286 Conn. 407 (“Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws."). “In approaching this inquiry, ‘[a] court must give considerable deference to an ‘employer's judgment regarding what functions are essential for service in a particular position.” Shannon v. New York City Transit Authority, 332 F.3d 95, 100 (2d Cir. 2003). Ifa function is essential, a plaintiff bears the burden of showing that he or she can perform it with or without reasonable accommodation, “that, despite [the plaintiff's] protected trait, [the plaintiff] will be able to perform the essential functions of the job with [or without] some type of assistance.” Curry v, Allan S. Goodman, Inc., supra, 286 Conn, 409. Moreover, an accommodation is reasonable if “at least on the face of things, itis feasible for the employer to provide the accommodation.” (Internal quotation marks omitted.) Id,, 419. In Curry, the Supreme Court explained that “[o}nce a disabled individual has suggested to his employer a reasonable accommodation, federal law requires, and we agree, that the employer and the employee 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.” (Citations omitted; ternal quotation marks omitted.) Id., 416,10 a 12 3 4 as 1s v7 18 19 20 an 22 23 24 25 26 27 28 Examples of reasonable accommodations include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training ‘materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111 (9) (B). However, “[a] reasonable accommodation can never involve the elimination of an essential function of a job.” (Emphasis added.) Shannon v. New York City Transit Authority, supra, 332 F.3d 100. Connecticut case law has not addressed the issue of whether a job duty is essential by nature of its being required by statute or regulation, nor whether an employee may be excused from such a duty by way of a reasonable accommodation. Federal case law, however, provides persuasive authority which suggests that in this case, the plaintiff's disability cannot be accommodated because it would effectively abrogate responsibility for the performance of an essential function, In Shannon v. New York City Transit Authority, supra, 332 F.3d 100-103, a New York City bus driver was barred from driving city busses after it was discovered that he had developed color blindness. Bus drivers were required to be able to differentiate between colors under both ‘New York and federal law. Id., 102-103. The court determined that the ability to distinguish colors was an essential function of a bus driver job under the ADA in part because it was required under New York and federal law, noting in reference to the federal guidelines at issue: “The federal agency that Congress has entrusted with determining minimum guidelines applicable to commercial motor vehicles has determined that the ability to distinguish the colors of traffic lights is essential, and nothing in the ADA calls this judgment into question.” Id., 102. Specifically addressing the plaintiff's disability discrimination claims under New York law, 610 1 a2 13. aa as 16 uw ae as 20 21. 22 23 24 25 26 27 28 parallel to the ADA in this regard, the court determined that “[the plaintiff's} state law claims are defeated by his inability to comply with federal and state regulations,” irrespective of any reasonable accommodation the plaintiff might have suggested. Id., 104. Indeed, “[the Transit Authority could not] have violated state or local discrimination laws by implementing the state o federal government's requirements for bus driver certification.” Id. The court also noted that even in the absence of regulation, the employer could have required color vision in the interest o safety and it could still be deemed an essential function. Id., 102-103. Also persuasive is Siederbaum v. New York, 309 F. Supp. 24 618, 630 (S.D.N.Y. 2004), in which an unsuccessful applicant for a bus driver position sued the city of New York for disability discrimination under the ADA because the applicant was denied employment based on her bipolar disorder. The court concluded that denying employment on the basis of the plaintiff's ‘mental illness was not violative of the ADA because a lack of bipolar disorder was an essential function of a bus driver's job. Id. The court based its decision in part on state regulations explaining that “{tJhe Transit Authority must be able to certify that its bus drivers meet the safety| requirements imposed by state regulations, and it must abide by its statutory obligation to operate its buses in a way that ensures the safety of the public.” (Internal quotation marks omitted.) Id. Specifically, the court noted that the Transit Authority was required to comply with a regulation disallowing drivers suffering from a “mental, nervous, organic, or functional disease of psychiatric disorder likely to interfere with the ability to control and safely operate a bus.” (Internal quotation marks omitted.) Id., 629; see also Bynum v. New York City Transit Authority, United States District Court, Docket No. 01-CV-7945 (CLP) (E.D.N.Y. May 16, 2007) (lack of multiple sclerosis essential function of New York bus driver job in part because of regulations10 a a2 13 14 1s 16 rT] 1a 19 20 an 22 23 24 25 26 27 28 requiring Transit Auth« to certify that drivers had no conditions which might cause them to lose control of bus). Finally, in McCoy v. Pennsylvania Power & Light Co., 933 F. Supp. 438, 443-44 (M.D. Pa, 1996), the plaintiff nuclear plant employee alleged disability discrimination under the ADA when the defendant plant operator revoked his security clearance after learning of his alcoholism and recent hospitalization for depressive episodes. Nuclear Regulatory Commission regulations required that the plant ensure that all employees with security clearance were sober, not physically or mentally impaired, and reliable in order to ensure nuclear safety. Id., 443. The court found that maintaining security clearance was an essential function of the plaintiff's job. Id. Federal regulations required the plant operator to revoke the plaintiff's security clearance because of his depression and alcoholism. Id., 444. The court explained that “[the plant operator] could make no reasonable accommodation that would have allowed plaintiff to remain in his former position and retain his security clearance without compromising its obligation imposed [federal] regulations to supervise carefully employees granted access to secure areas and take steps to restrict access by any employee who poses a potential threat to the safe operation of the plant.” (Internal quotation marks omitted.) Id. The plaintiff's complaint was dismissed with prejudice. Id. In this case, the Connecticut Department of Transportation mandates that “[nJo certificate holder or taxicab driver shall refuse taxicab service to a patron with a service animal.” Regs., Conn, State Agencies, § 13b-96-26 (b). Similarly, federal regulations (incidentally issued under authority granted by the ADA itself) require that “[pJrivate entities providing taxi service shall not discriminate against individuals with disabilities by actions including, but not limited to, refusing to provide service to individuals with disabilities who can use taxi vehicles, refusing to 820 a a2 13 aa as 16 1s 1 20 ar 22 23 24 25 26 27 28 assist with the stowing of mobility devices, and charging higher fares or fees for carrying, individuals with disabilities and their equipment than are charged to other persons.” 49 C.F.R. $37.29 (0). Since under state and federal law, taxicab drivers are required to provide transportation to disabled individuals and their service animals, this constitutes an essential function of their job. Unlike the federal cases discussed above, this court acknowledges that the prohibition against discriminating against disabled individuals with service animals does not implicate general public safety issues. Nevertheless, federal case law resolves a difficult conundrum: that employers should not be forced to violate state and federal laws and regulations, in this case, discrimination laws relevant to one protected class, in order to avoid discriminating against another protected class, As the court in Shannon v. New York City Transit Authority makes clear, the elimination of an essential function, which is, in effect, what the plaintiff seeks, is not considered a reasonable accommodation. ‘As the Appellate Court has noted, “It is axiomatic that Connecticut adheres to a public policy prohibiting discrimination on the basis of disabilities.” (Internal quotation marks omitted.) Langello v. West Haven Board of Education, 142 Conn. App. 248, 258, 65 A.3d 1 (2013). Because the plaintiff has provided no authority that supports his ultimate claim, i. that in order to accommodate his disability, the defendant should be forced to violate state and federal laws which prohibit discrimination of another individual based on disability, this court grants the defendant’s motion to strike the complaint. ELGO, J.DOCKET NUMBER: ¢ \ k ¢ ¢ ) SS 7% 3S CASE NAME: ( N ¢ { Iman... CT MEMORANDUM OF DECISION DATED: SEs FILESEALED: YES no MEMO SEALED: YES NO Y- THIS MEMORANDUM OF DECISION MAY BE RELEASED TO THE REPORTER OF JUDICIAL DECISIONS FOR PUBLICATION: THIS MEMORANDUM OF DECISION MAY NOT BE RELEASED TO THE REPORTER OF JUDICIAL DECISIONS FOR PUBLICATION: gadCase Detail - HHD-CV13-6045783-S Page 1 of 3 "AHMAD, MANSOOR Et Al v. STATE OF CONNECTICUT, DEPARTMENT (OF TRANSPORTATION Case Type: T90 File Date: 10/04/2013 Retum Date: 10/29/2013 rere’ recat ed Be eer ory Scheduled Court Dates E-Services Login Screen Section Help ue “To receive an emsil when there is activity on this case, click here, eed Bente Epis Information Updated as of: 02/08/2015 coer aa oa Breton = : ae : Erbin ‘Case Type: T90- Torts Al ther Court Location: HARTFORD nema List type: No List Type Cees ei aati ‘rial List Claim: Referral Judge or coy Magistrate: isthe date the information was entered in 10108/2014 (The “last action dat Last Action Date: sie sytem) Creer Comic ‘Disposition information (eet coe "Disposition Date: Disposition: rN Judge or Magistrate: cy z ary 8 Apparanes iforation etn P01 MANSOOR AHMAD = ‘Attomey: & JOHN R WILLIAMS (067962) File Date: 10042618? ASSOCIATES, LLC * 51 ELM ST STE 408 a a NEWHAVEN, CT 06510 S57 oR paz. NAVEED AHMAD baz x 8 “Attorney: & JOHN R WILLIAMS (067962) Fie bate: anwa0f8) 3 ASSOCIATES, LLC eae in SY ELM ST STE 409 aon NEW HAVEN, CT 08510 B ts RR D-01. 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