Commission on Human Rights & Opportunities v. Echo Hose Ambulance , 322 Conn. 154 ( 2016 )

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COMMISSION ON HUMAN RIGHTS
AND OPPORTUNITIES v. ECHO
HOSE AMBULANCE ET AL.
(SC 19496)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued March 30—officially released July 26, 2016
Christopher T. Parkin, with whom, on the brief, were
Russell J. Sweeting and Thomas W. Moyher, for the
appellant (defendant Sarah Puryear).
Ian Angus Cole, for the appellee (named defendant).
Michael J. Rose, with whom, on the brief, was Cindy
M. Cieslak, for the appellee (defendant city of Shelton).
Opinion
McDONALD, J. We are called upon to decide what
test should be applied to determine whether an unpaid
volunteer is an ‘‘employee’’ for purposes of the Connect-
icut Fair Employment Practices Act (CFEPA), General
Statutes § 46a-51 et seq. More specifically, we must
decide whether a volunteer must satisfy the predomi-
nant ‘‘remuneration test’’ used to resolve similar federal
causes of action or Connecticut’s common-law ‘‘right
to control’’ test.
This certified appeal arises out of a complaint filed
with the plaintiff, the Commission on Human Rights
and Opportunities, by Brenda Puryear (Brenda), on
behalf of her then minor daughter Sarah Puryear
(Sarah).1 The complaint alleged that the defendants,
Echo Hose Ambulance and the city of Shelton, had
discriminated and retaliated against Sarah on the basis
of her race and color in violation of CFEPA and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (Title VII). The trial court rendered judgment
dismissing the commission’s administrative appeal
from the decision of the commission’s human rights
referee, who had struck the complaint on the ground
that Sarah was not an employee under the remuneration
test. The Appellate Court affirmed the trial court’s judg-
ment; Commission on Human Rights & Opportunities
v. Echo Hose Ambulance, 156 Conn. App. 239, 253, 113
A.3d 463 (2015); and Sarah appealed to this court. We
affirm the judgment of the Appellate Court.
The record reveals the following facts, as alleged
in the complaint, and procedural history. Echo Hose
provides ambulance transport and other services to the
city. Sarah, who is African-American, was accepted into
a ‘‘precepting program’’2 with Echo Hose, which
required her to ride in an ambulance for one shift each
week and to participate in other activities. While taking
part in that program, and after completing it, Sarah
‘‘was treated differently due to her race and color and
. . . was subject to discipline that other individuals
. . . were not.’’ Specifically, Sarah was subjected to
comments about Africa and the ‘‘ ‘ghetto,’ ’’ was sus-
pended without good cause, and was terminated with-
out good cause. Although Sarah’s termination was later
overruled, such that she was able to complete the pre-
cepting program, members of Echo Hose voted against
making Sarah a member.
Brenda thereafter filed a complaint with the commis-
sion alleging violations of CFEPA and Title VII. The
complaint did not allege that Sarah had been paid or
had received other benefits in conjunction with her
activities with Echo Hose. The city moved to strike the
complaint, claiming that Sarah was not an ‘‘employee,’’
a factual predicate to an action under either CFEPA or
Title VII, because she could not satisfy the remuneration
test that determines such a status. Brenda objected to
the motion, claiming that the proper test for determin-
ing who is an employee under CFEPA is the ‘‘right to
control test,’’ which Sarah satisfied. The referee deter-
mined that the remuneration test applied to both Title
VII and CFEPA and that Sarah could not satisfy that
test. The referee therefore struck the complaint in its
entirety.
After the referee declined to rule on motions for
reconsideration filed by the commission and Sarah
regarding Sarah’s claim under CFEPA, the commission
brought this administrative appeal pursuant to General
Statutes §§ 4-183 and 46a-94a. See footnote 1 of this
opinion. The trial court concluded that the referee prop-
erly had applied the remuneration test and dismissed
the appeal.
Sarah then appealed to the Appellate Court, which
affirmed the judgment of dismissal. Commission on
Human Rights & Opportunities v. Echo Hose Ambu-
lance, supra, 156 Conn. App. 253. We granted Sarah’s
petition for certification to appeal limited to the follow-
ing issue: ‘‘Did the Appellate Court properly apply the
federal ‘remuneration test’ rather than Connecticut’s
common-law ‘right [to] control’ test to determine an
‘employee’ under [CFEPA] . . . ?’’ Commission on
Human Rights & Opportunities v. Echo Hose Ambu-
lance, 317 Conn. 911, 116 A.3d 309 (2015).
We apply plenary review to this question of law, and
well established principles of statutory construction.3
See General Statutes § 1-2z (setting forth plain meaning
rule); Caciopoli v. Lebowitz, 309 Conn. 62, 69, 68 A.3d
1150 (2013) (‘‘[w]hen a statute is not plain and unambig-
uous, we also look for interpretive guidance to the legis-
lative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common-law principles governing the same general
subject matter’’ [internal quotation marks omitted]).
CFEPA defines an employee as ‘‘any person
employed by an employer . . . .’’ General Statutes
§ 46a-51 (9). This circular definition provides no guid-
ance on how to assess whether someone is an
employee. Cf. Daggitt v. United Food & Commercial
Workers International Union, 245 F.3d 981, 987 (8th
Cir. 2001) (finding substantively identical definition of
employee in Title VII circular and unhelpful in
court’s inquiry).
‘‘This court previously has recognized that in constru-
ing [CFEPA] we are properly guided by the case law
surrounding federal fair employment legislation . . . .’’
(Internal quotation marks omitted.) Perodeau v. Hart-
ford, 259 Conn. 729, 738, 792 A.2d 752 (2002); see also
Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d
1013 (2012) (‘‘Connecticut antidiscrimination statutes
should be interpreted in accordance with federal anti-
discrimination laws’’ [internal quotation marks omit-
ted]). We also have recognized that our legislature’s
intent, in general, was to make CFEPA complement the
provisions of Title VII. Williams v. Commission on
Human Rights & Opportunities, 257 Conn. 258, 287,
777 A.2d 645 (2001); State v. Commission on Human
Rights & Opportunities, 211 Conn. 464, 469–70, 559
A.2d 1120 (1989). We therefore previously looked to
Title VII jurisprudence for guidance when interpreting
the meaning of ‘‘employer’’ under CFEPA. See Perodeau
v. Hartford, supra, 738–41.
Two tests—the right to control test and the remunera-
tion test—have emerged from the federal courts to
determine whether an individual is an employee in the
context of the substantively identical definition of that
term under Title VII. 42 U.S.C. § 2000e (f). The right to
control test is based on the common law of agency,
which considers various factors to determine ‘‘the hir-
ing party’s right to control the manner and means by
which the product is accomplished [by the hired
party].’’4 (Emphasis added.) Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 751–52, 109 S. Ct.
2166, 104 L. Ed. 2d 811 (1989). The United States
Supreme Court has applied this test to various statutory
schemes, not including Title VII, to resolve the question
of whether the hired party was an employee or indepen-
dent contractor. Nationwide Mutual Ins. Co. v. Darden,
503 U.S. 318, 323, 327, 112 S. Ct. 1344, 117 L. Ed. 2d
581 (1992); Community for Creative Non-Violence v.
Reid, supra, 751–52; see also O’Connor v. Davis, 126
F.3d 112, 115 (citing cases), cert. denied, 522 U.S. 1114,
118 S. Ct. 1048, 140 L. Ed. 2d 112 (1998). The court
relied on the well established rule that, ‘‘when Congress
uses the term employee without defining it with preci-
sion, courts should presume that Congress had in mind
the conventional master-servant relationship as under-
stood by the common-law agency doctrine.’’ (Internal
quotation marks omitted.) O’Connor v. Davis, supra,
115, quoting Nationwide Mutual Ins. Co. v. Darden,
supra, 322–23, and Community for Creative Non-Vio-
lence v. Reid, supra, 739–40.
The remuneration test arose to address circum-
stances in which, in contrast to the employee versus
independent contractor situation, it was not clear that
the putative employee had been ‘‘hired’’ in the first
instance, and accordingly, approximated the conven-
tional master-servant relationship. O’Connor v. Davis,
supra, 126 F.3d 115. The remuneration test instructs
courts to ‘‘conduct a [two step] inquiry by requiring
that a volunteer first show remuneration as a threshold
matter before proceeding to the second step—analyzing
the putative employment relationship under the [com-
mon-law] agency test. Remuneration may consist of
either direct compensation, such as a salary or wages,
or indirect benefits that are not merely incidental to
the activity performed.’’ Juino v. Livingston Parish
Fire District No. 5, 717 F.3d 431, 435 (5th Cir. 2013).
A majority of United States Courts of Appeals that
have considered this issue have adopted the remunera-
tion test. See id., 435–38 (adopting remuneration test
after contrasting cases from circuits that apply remu-
neration test, including Second, Fourth, Eighth, Tenth,
and Eleventh Circuits, with cases from Sixth and Ninth
Circuits, which apply common-law agency test).5 In so
doing, several circuits, including the Second Circuit,
concluded that a test designed to distinguish employees
from independent contractors is ill-suited to distin-
guishing employees from volunteers. See O’Connor v.
Davis, supra, 126 F.3d 115; Haavistola v. Community
Fire Co. of Rising Sun, Inc., 6 F.3d 211, 220 (4th Cir.
1993).
Federal case law strongly weighs in favor of the appli-
cation of the remuneration test to claims brought under
CFEPA for two reasons. First, adopting the remunera-
tion test makes this court’s interpretation of CFEPA
complement the interpretation of Title VII as adopted
by the majority of federal circuits, including the Second
Circuit. See Gleason v. Smolinski, 319 Conn. 394, 444
n.41, 125 A.3d 920 (2015) (decisions of Second Circuit
are deemed particularly persuasive when there is circuit
split). Although this court has occasionally interpreted
CFEPA differently than Title VII, it has done so only in
circumstances in which there is clear evidence of a
contrary legislative intent. See McWeeny v. Hartford,
287 Conn. 56, 69, 946 A.2d 862 (2008) (relevant portion
of CFEPA plain and unambiguous); Evening Sentinel
v. National Organization for Women, 168 Conn. 26, 34
n.5, 357 A.2d 498 (1975) (textual difference between
CFEPA and corresponding provision of Title VII was
‘‘purposeful and is meaningful’’); see also Vollemans v.
Wallingford, 103 Conn. App. 188, 213, 218, 928 A.2d 586(2007) (federal interpretation directly conflicted with
specific legislative policy of avoiding dismissal of poten-
tially meritorious claims due to late filing), aff’d, 289
Conn. 57, 61, 956 A.2d 579 (2008). No such evidence is
apparent in the present case.
Second, the logic supporting the remuneration test
is more sound. It provides a threshold step to resolve the
factual premise that the right to control test assumes—a
hiring party and a hired party.
Our conclusion that the remuneration test applies is
confirmed by the legislature’s enactment of ‘‘An Act
Protecting Interns from Workplace Harassment and
Discrimination.’’ Public Acts 2015, No. 15-56 (P.A. 15-
56), codified at General Statutes (Supp. 2016) §§ 31-40y
and 46a-51 (8). The bill subsequently enacted as P.A.
15-56 was introduced prior to the Appellate Court’s
decision in the present case but was not enacted until
shortly after that decision was issued. The legislature,
through P.A. 15-56, amended CFEPA to include interns
as a separate class of persons to whom the protections
of CFEPA applied. General Statutes (Supp. 2016) § 46a-
51 (8). An ‘‘ ‘[i]ntern’ ’’ is defined in part as ‘‘an individual
who . . . is not entitled to wages for the work per-
formed’’; General Statutes (Supp. 2016) § 31-40y (a) (3)
(B); in contrast to an ‘‘ ‘[e]mployee,’ ’’ which is defined
as ‘‘any individual engaged in service to an employer in
a business of such employer and receives compensation
for such service . . . .’’6 General Statutes (Supp. 2016)
§ 31-40y (a) (1). In testimony before the Labor and Pub-
lic Employees Committee prior to the Appellate Court’s
decision in this case, Senator Martin M. Looney, one
of the sponsors of the bill enacted as P.A. 15-56,
explained to his colleagues that the need for the bill
stemmed from the fact that ‘‘Connecticut does not cur-
rently protect interns from harassment, discrimination,
or retaliation in our statutes because they are not con-
sidered to be employees under our state law.’’ Conn.
Joint Standing Committee Hearings, Labor and Public
Employees, Pt. 1, 2015 Sess., p. 164.
Public Act 15-56 and its legislative history yield the
following considerations. First, the legislature did not
hold the view that the right to control test applied to
CFEPA because, if that test had applied, interns would
not have been categorically excluded from CFEPA. Sec-
ond, adopting the right to control test for CFEPA would
create tension between CFEPA and P.A. 15-56, the latter
plainly turning on the question of compensation and
other factors not directly related to the right to control.
Creating such tension would be inconsistent with the
principle that we read ‘‘the legislative scheme as a whole
in order to give effect to and harmonize all of [its]
parts.’’ (Internal quotation marks omitted.) Stewart v.
Watertown, 303 Conn. 699, 711, 38 A.3d 72 (2012).
Sarah nevertheless advances a number of arguments
for application of the right to control test, none of which
we find persuasive. Sarah’s reliance on two cases
involving complaints by volunteers, Groton v. Commis-
sion on Human Rights & Opportunities, 169 Conn.
89, 91, 100–101, 362 A.2d 1359 (1975), and Quinnipiac
Council, Boy Scouts of America, Inc. v. Commission
on Human Rights & Opportunities, 204 Conn. 287, 302,
528 A.2d 352 (1987), is misplaced. Because neither case
directly addressed or analyzed the question of who is
an employee under CFEPA, we read them as simply
assuming, without deciding, that volunteers could be
protected under CFEPA, a proposition that we do
not dispute.
Sarah’s contention that, by enacting P.A. 15-56, the
legislature clarified the law to protect individuals in her
position, is unsupported by its plain language. Public
Act 15-56 expands protections for one narrowly defined
class of persons—unpaid interns—to which Sarah does
not belong.
Sarah’s argument that applying the remuneration test
would lead to unfair results, contrary to the public pol-
icy of protecting workers from discrimination, is simi-
larly unpersuasive. Although CFEPA is a remedial
statute, such ‘‘that ambiguities in [CFEPA] should be
construed in favor of persons seeking redress thereun-
der’’; McWeeny v. Hartford, supra, 287 Conn. 70; our
‘‘fundamental objective is to ascertain and give effect
to the apparent intent of the legislature.’’ (Internal quo-
tation marks omitted.) Standard Oil of Connecticut,
Inc. v. Administrator, Unemployment Compensation
Act, 320 Conn. 611, 642, 134 A.3d 581 (2016). Accord-
ingly, we are ‘‘not free to accomplish a result that is
contrary to the intent of the legislature . . . .’’ (Internal
quotation marks omitted.) McWeeny v. Hartford, supra,
70. For all the reasons previously discussed, we are
persuaded that the application of the remuneration test
would be its intention. Moreover, the legislature’s use
of the term ‘‘employee’’ instead of a more general term;
cf. General Statutes § 53-450 (b) (‘‘[a]ny person . . .
shall have a right of action against any person’’); is itself
an expression of public policy to impose some limit on
the scope of CFEPA. Thibodeau v. Design Group One
Architects, LLC, 260 Conn. 691, 713, 802 A.2d 731 (2002)
(general public policy against sex discrimination could
not trump specific expression of policy in CFEPA
exempting small employers).
In sum, the Appellate Court properly concluded that
the remuneration test is the appropriate test for
determining whether a volunteer is an employee under
CFEPA. Although a volunteer may be able to meet the
remuneration test by proof of benefits in lieu of wages;
Haavistola v. Community Fire Co. of Rising Sun, Inc.,
supra, 6 F.3d 221–22; Sarah has neither alleged facts
nor claimed on appeal that she can meet this test.
Accordingly, our conclusion that the remuneration test
applies is dispositive.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justice Eveleigh was
not present when the case was argued before the court, he has read the
briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
1
Due to unusual procedures applicable to proceedings before the commis-
sion, in this administrative appeal, the commission is named as both a
plaintiff (in its own capacity) and as a defendant (in its capacity as the agency
under which the commission’s human rights referee issued the decision from
which the commission appealed). See General Statutes § 46a-94a. Sarah,
who was substituted for her mother as a party upon reaching the age of
majority, is named as a nominal defendant pursuant to General Statutes § 4-
183 (c). For clarity, we refer to the commission and Sarah by name.
2
It appears from the record that the precepting program is a probationary
training program that, if satisfactorily completed, allows the participant to
become a regular member of Echo Hose upon a majority vote of all of the
regular members.
3
Although we ordinarily afford ‘‘deference to the construction of a statute
applied by the administrative agency empowered by law to carry out the
statute’s purposes,’’ such deference is unwarranted when, as in this case,
‘‘the construction of a statute . . . has not previously been subjected to
judicial scrutiny [or to] . . . a governmental agency’s time-tested interpreta-
tion . . . .’’ Chairperson, Connecticut Medical Examining Board v. Free-
dom of Information Commission, 310 Conn. 276, 281–82, 77 A.3d 121 (2013).
4
Connecticut’s right to control test similarly determines the relationship
between a worker and a putative employer ‘‘by asking whether the putative
employer has the right to control the means and methods used by the worker
in the performance of his or her job.’’ (Internal quotation marks omitted.)
Doe v. Yale University, 252 Conn. 641, 680–81, 748 A.2d 834 (2000). This
court has not expressly endorsed the factors used by the federal courts,
which include: ‘‘the skill required; the source of the instrumentalities and
tools; the location of the work; the duration of the relationship between
the parties; whether the hiring party has the right to assign additional projects
to the hired party; the extent of the hired party’s discretion over when and
how long to work; the method of payment; the hired party’s role in hiring
and paying assistants; whether the work is part of the regular business of
the hiring party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party.’’ (Footnotes
omitted.) Community for Creative Non-Violence v. Reid, 490 U.S. 730,
751–52, 109 S. Ct. 2166, 104 L. Ed. 2d 811 (1989).
5
Two other circuit courts have applied the common-law test for agency
to determine whether an individual was an employee under Title VII, but
there was no question that the individual had been hired by the employer.
See Brown v. J. Kaz, Inc., 581 F.3d 175, 178, 180 (3d Cir. 2009); Alberty-
Velez v. Corporacion de Puerto Rico Para La Difusion Publica, 361 F.3d
1, 6–7 (1st Cir. 2004).
6
The definition of intern also provides that an intern is an individual
whose work ‘‘supplements training given in an educational environment’’;
General Statutes (Supp. 2016) § 31-40y (a) (3) (C) (i); therefore making clear
that an intern is not the same as a volunteer whose efforts are unconnected
to an educational program.