Commission on Human Rights & Opportunities v. Echo Hose Ambulance

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COMMISSION ON HUMAN RIGHTS
AND OPPORTUNITIES v. ECHO
HOSE AMBULANCE ET AL.
(AC 36493)
DiPentima, C. J., and Sheldon and Sullivan, Js.
Argued December 1, 2014—officially released March 31, 2015
(Appeal from Superior Court, judicial district of New
Britain, Cohn, J.)
Russell J. Sweeting, with whom, on the brief, was
Thomas W. Moyher, for the appellant (defendant
Sarah Puryear).
Ian Angus Cole, for the appellee (named defendant).
Cindy A. Miller, with whom was Michael J. Rose,
for the appellee (defendant city of Shelton).
Opinion
DiPENTIMA, C. J. In this appeal, we are presented
with an issue not previously addressed by either this
court or our Supreme Court: whether, in defining the
term ‘‘employee’’ for purposes of the Connecticut Fair
Employment Practices Act (CFEPA), General Statutes
§ 46a-51 et seq., Connecticut should adopt the remuner-
ation test applied by the United States Court of Appeals
for the Second Circuit when defining that term in Title
VII cases.
This appeal arises out of a complaint filed by the
defendant Sarah Puryear with the plaintiff, the Commis-
sion on Human Rights and Opportunities (commission),
alleging that the defendants, Echo Hose Ambulance
(Echo Hose)1 and the city of Shelton (city), had illegally
discriminated and retaliated against her, an African-
American female, because of her race and color in viola-
tion of General Statutes § 46a-60 (a) (1) and (4), and
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.2 At the administrative hearing
before the presiding human rights referee (referee),
Puryear’s complaint was dismissed after the city filed
and prevailed on a motion to strike.3 Following the
dismissal, the commission appealed to the Superior
Court in support of Puryear’s position, and the court
dismissed the appeal, affirming the referee’s ruling dis-
missing the complaint. Thereafter, Puryear brought
this appeal.
On appeal, Puryear claims that the court (1) errone-
ously applied the federal Title VII standard to define
the term ‘‘employee’’ under CFEPA; and (2) erroneously
upheld the granting of the motion to strike without
affording her an opportunity to engage in further discov-
ery or an evidentiary hearing. We affirm the judgment
of the trial court.
The following procedural history and facts, as alleged
in the complaint, are relevant to our consideration of
Puryear’s claim. On June 9, 2011, Puryear filed a com-
plaint with the commission.4 The complaint alleged that
Echo Hose provided ‘‘ambulance transport, emergency
first responder services, community CPR [cardiopulmo-
nary resuscitation] training and public education for
[the city].’’ According to the complaint, Puryear ‘‘inter-
viewed with [Echo Hose] on October 10, 2009, and was
accepted into the precepting program.’’5 During her time
at Echo Hose, Puryear, an African-American female,
‘‘was subject to verbal harassment and an abusive work-
ing environment on a continuing basis . . . .’’ In partic-
ular, Puryear ‘‘was treated differently due to her race
and color, and she was subject to discipline that other
individuals . . . were not. In addition, she was subject
to inappropriate comments about the ‘ghetto’ and
Africa.’’ On December 10, 2009, Puryear was ‘‘sus-
pended from the program because she did [not] give
notice that she would be absent from’’ a meeting. On
December 11, 2009, Puryear was notified by the manage-
ment that she could ‘‘no longer ride with the Saturday
crew and that her shift [was] being changed’’ despite
a prior agreement that she would be able to ‘‘ride with
the Saturday crew because she [was] in school on week-
days.’’ On June 17, 2010, Puryear was accused of ‘‘not
complying with the ‘chain of command’ and [was] termi-
nated’’ from the precepting program. On June 18, 2010,
however, her termination ‘‘from the program was
revoked’’ and she was reinstated. On September 2, 2010,
Puryear was ‘‘cleared from the precepting program and
became a full member of [Echo Hose].’’ On November
12, 2010, Puryear was accused of ‘‘abandoning her crew
and patient and [was] reprimanded’’ by her supervisor.
‘‘On December 14, 2010, John DiaGiacomo, secretary
of the executive board at [Echo Hose], informed Pury-
ear that she was voted out of [Echo Hose] at a member-
ship meeting . . . .’’ ‘‘On or about December 15, 2010,
[Joe] Laucella [assistant chief of Echo Hose] informed
Puryear . . . that there was no procedure to appeal
the decision.’’
Thereafter, Puryear filed a complaint with the com-
mission. After an administrative review, the complaint
was certified for a public hearing. On October 4, 2012,
the city filed a motion to strike the complaint on the
ground that Puryear could not bring a claim of employ-
ment discrimination under CFEPA or Title VII because
she was not an employee of Echo Hose or of the city.6
On January 10, 2013, the referee granted the motion to
strike. The referee concluded that Puryear had failed
to ‘‘allege sufficient facts to support the existence of an
employment relationship between the parties’’ because
she did not assert that she had received any direct or
indirect remuneration for her services at Echo Hose.
In making that determination, the referee applied the
federal ‘‘remuneration’’ test, which considers whether
a purported employee received sufficient direct or indi-
rect remuneration for his or her services to support the
existence of the employer-employee relationship. On
March 23, 2013, the commission appealed to the Supe-
rior Court from the granting of the motion to strike.7
On December 23, 2013, the court affirmed the referee’s
granting of the motion to strike and dismissed the
appeal. This appeal followed. Additional details will be
set forth as necessary.
Our review of the trial court’s dismissal of an adminis-
trative appeal is governed by the Uniform Administra-
tive Procedure Act (UAPA), General Statutes § 4-166 et
seq. ‘‘Under the UAPA, it is [not] the function . . . of
this court to retry the case or to substitute its judgment
for that of the administrative agency. . . . Even for
conclusions of law, [t]he court’s ultimate duty is only
to decide whether, in light of the evidence, the [agency]
has acted unreasonably, arbitrarily, illegally, or in abuse
if its discretion. . . . [Thus] [c]onclusions of law
reached by the administrative agency must stand if the
court determines that they resulted from a correct appli-
cation of the law to the facts found and could reasonably
and logically follow from such facts. . . . Cases that
present pure questions of law, however, invoke a
broader standard of review than is . . . involved in
deciding whether, in light of the evidence, the agency
has acted unreasonably, arbitrarily, illegally or in abuse
of its discretion. . . . Furthermore, when a state
agency’s determination of a question of law has not
previously been subject to judicial scrutiny . . . the
agency is not entitled to special deference.’’ (Citation
omitted; internal quotation marks omitted.) Chairper-
son, Connecticut Medical Examining Board v. Free-
dom of Information Commission, 310 Conn. 276,
281–82, 77 A.3d 121 (2013). In the present case, the
issue before this court requires us to construe the term
‘‘employee’’ under CFEPA. ‘‘Consequently, because the
commission’s interpretation has not been subjected to
judicial scrutiny or consistently applied by the agency
over a long period of time, our review is de novo.’’
(Internal quotation marks omitted.) Id., 282–83.
I
Puryear’s primary claim is that the court erroneously
applied the federal ‘‘remuneration’’ test to determine
whether she was an employee of Echo Hose under the
CFEPA. Acknowledging that there is no Connecticut
appellate case law on this issue, Puryear argues that
the court was not bound by the federal interpretation
of the term and that instead it should have applied the
common-law ‘‘right of control’’ test, as applied by the
Connecticut courts. We are not persuaded.
We first note that a question of whether an individual
is an ‘‘employee’’ under CFEPA raises an issue of statu-
tory interpretation, over which we have plenary review.
Miller v. Egan, 265 Conn. 301, 327, 828 A.2d 549 (2003).
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case, including the question
of whether the language does so apply. . . . In seeking
to determine [the] meaning [of a statute], General Stat-
utes § 1-2z directs us first to consider the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative 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 . . . . The test to determine ambiguity
is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Thomas v. Dept. of Developmental Services, 297 Conn.
391, 399, 999 A.2d 682 (2010). ‘‘Only if we determine
that the text of the statute is not plain and unambiguous
may we look to extratextual evidence of its meaning,
such as the legislative history and circumstances sur-
rounding its enactment . . . the legislative policy it
was designed to implement . . . .’’ (Internal quotation
marks omitted.) Potvin v. Lincoln Service & Equip-
ment Co., 298 Conn. 620, 631–32, 6 A.3d 60 (2010). In
addition, we may also turn for interpretive guidance
to ‘‘legislation in other states and jurisdictions which
pertains to the same subject matter, persons, things, or
relations . . . .’’ (Internal quotation marks omitted.)
Vollemans v. Wallingford, 103 Conn. App. 188, 196, 928
A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d 579 (2008).
Puryear does not dispute that in order to invoke the
protections of § 46a-60 (a) (1) and (4), she had to make
factual allegations sufficient to establish that she was
an employee of Echo Hose. See McWeeny v. Hartford,
287 Conn. 56, 70, 946 A.2d 862 (2008) (stating that plain
language of § 46a-60 [a] [1] limits its protections to
former, current, or prospective employees); Hebrew
Home & Hospital, Inc. v. Brewer, 92 Conn. App. 762,
770, 886 A.2d 1248 (2005) (‘‘[t]o establish a prima facie
case of retaliation [under § 46a-60 (a) (4)], an employee
must show [1] participation in a protected activity
known to the defendant; [2] an employment action dis-
advantaging the plaintiff; and [3] a causal connection
between the protected activity and the adverse employ-
ment action’’ [emphasis added; internal quotation
marks omitted]). CFEPA, however, defines an
‘‘employee’’ simply as any person employed by an
employer. See General Statutes § 46a-51 (9). Such a
definition suffices for situations of traditional employ-
ment, where an employee receives monetary compensa-
tion for his or her services. It is less helpful, however,
in cases where the compensation allegedly provided by
the purported employer is not monetary, but takes the
form of other benefits. See, e.g., Clackamas Gastroen-
terology Associates, P. C. v. Wells, 538 U.S. 440, 444,
123 S. Ct. 1673, 155 L. Ed. 2d 615 (2003) (concluding
that definition of employee as ‘‘an individual employed
by an employer . . . qualifies as a mere nominal defini-
tion that is completely circular and explains nothing’’
[citation omitted; internal quotation marks omitted]).
Accordingly, we conclude that the term ‘‘employee’’ as
used in the statute is not plain and unambiguous, and
thus we must turn to extratextual sources for guidance
in construing it.
A
Common-Law ‘‘Right of Control’’ Test
In her brief, Puryear argues that a determination of
whether someone is an employee for the purpose of
CFEPA should be made applying the common-law
‘‘agency’’ or ‘‘right of control’’ test. We are not per-
suaded.
The common-law ‘‘agency’’ or ‘‘right of control’’ test
is generally applied by the Connecticut courts to distin-
guish between employees and independent contractors.
Under that test, ‘‘[o]ne is an employee of another when
he [or she] renders a service for the other and when
what he [or she] agrees to do, or is directed to do, is
subject to the will of the other in the mode and manner
in which the service is to be done and in the means to
be employed in its accomplishment as well as in the
result to be attained. . . . The controlling consider-
ation in the determination whether the relationship of
master and servant exists or that of independent con-
tractor exists is: Has the employer the general authority
to direct what shall be done and when and how it shall
be done—the right of general control of the work?’’
(Emphasis omitted; internal quotation marks omitted.)
Compassionate Care, Inc. v. Travelers Indemnity Co.,
147 Conn. App. 380, 391, 83 A.3d 647 (2013).
In this case, the court upheld the referee’s decision
to decline to apply the common-law test, stating that
the ‘‘control [test] loses some of its significance in the
determination of whether an individual is an employee
in those situations in which compensation is not evi-
dent,’’ and because its application fails to answer the
antecedent question ‘‘of whether the person was hired
for any purpose at all.’’ We agree with the court’s ratio-
nale and conclude that the common-law test alone is
insufficient in determining whether an individual is in
fact an employee under CFEPA. See O’Connor v. Davis,
126 F.3d 112, 115 (2d Cir. 1997) (‘‘[A] prerequisite to
considering whether an individual is [an employee or
an independent contractor] under common-law agency
principles is that the individual [has] been hired in the
first instance. That is, only where a ‘hire’ has occurred
should the common-law agency analysis be under-
taken.’’), cert. denied, 522 U.S. 1114, 118 S. Ct. 1048,
140 L. Ed. 2d 112 (1998).
B
Remuneration Test
Having concluded that the common-law ‘‘right of con-
trol’’ test alone does not answer the question of whether
an individual is an employee for the purposes of CFEPA,
we now must determine whether the court’s application
of the Second Circuit’s remuneration test was appro-
priate in this case.
We first note that, ‘‘[i]n interpreting our antidiscrimi-
nation and antiretaliation statutes, we look to federal
law for guidance. In drafting and modifying [CFEPA]
. . . our legislature modeled that act on its federal
counterpart, Title VII . . . and it has sought to keep
our state law consistent with federal law in this area.
. . . Accordingly, in matters involving the interpreta-
tion of the scope of our antidiscrimination statutes, our
courts consistently have looked to federal precedent for
guidance.’’ (Citation omitted; internal quotation marks
omitted.) Eagen v. Commission on Human Rights &
Opportunities, 135 Conn. App. 563, 579–80, 42 A.3d 478
(2012); Callender v. Reflexite Corp., 143 Conn. App.
351, 375 n.8, 70 A.3d 1084 (2013) (‘‘[w]e are mindful
that ‘Connecticut antidiscrimination statutes should be
interpreted in accordance with federal antidiscrimina-
tion laws’ ’’). Furthermore, our Supreme Court has held
that in ‘‘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.’’ Brittell v. Dept. of
Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998);
see also Curry v. Allan S. Goodman, Inc., 286 Conn.
390, 415, 944 A.2d 925 (2008) (‘‘[a]lthough this case is
based solely on Connecticut law, we review federal
precedent concerning employment discrimination for
guidance in enforcing our own antidiscrimination stat-
utes’’); Commission on Human Rights & Opportuni-
ties v. Savin Rock Condominium Assn., Inc., 273 Conn.
373, 386, 870 A.2d 457 (2005) (‘‘[i]n construing a Con-
necticut statute that is similar to federal law, we often
turn to decisions construing the federal law for guid-
ance’’); Levy v. Commission on Human Rights &
Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996)
(same); Miko v. Commission on Human Rights &
Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991)
(adopting federal employment discrimination eviden-
tiary standards in claims of overt discrimination pursu-
ant to General Statutes (Rev. to 1987) § 46a-64a). We
thus conclude, as did the trial court, that federal law
interpreting Title VII is an appropriate source of guid-
ance in this case.
Similar to CFEPA, Title VII defines an employee as
an individual employed by an employer. 42 U.S.C.
§ 2000e (f) (2012). Faced with the apparent ambiguity
in that language, several federal circuit courts of appeal
have adopted a ‘‘remuneration’’ test as a threshold
requirement for determining whether an individual is
an employee.8 To satisfy that test, the Second Circuit
requires a putative ‘‘employee’’ to establish that he or
she ‘‘has received direct or indirect remuneration from
the alleged employer.’’9 (Internal quotation marks omit-
ted.) Pietras v. Board of Fire Commissioners of Farm-
ingville Fire District, 180 F.3d 468, 473 (2d Cir. 1999).
In Pietras, the court explained that ‘‘an employment
relationship within the scope of Title VII can exist even
when the putative employee receives no salary so long
as he or she gets numerous job-related benefits’’ such
as health insurance, vacation, sick pay, a disability pen-
sion, survivors’ benefits, group life insurance, scholar-
ships for dependents upon death, or other ‘‘indirect but
significant remuneration.’’ (Internal quotation marks
omitted.) Id.; see also O’Connor v. Davis, supra, 126
F.3d 116 (identifying vacation, sick pay, health insur-
ance or promise thereof as forms of remuneration indic-
ative of employment relationship). Moreover, ‘‘[i]n the
absence of a clear contractual employer-employee rela-
tionship, a party claiming to be an employee under Title
VII must come forward with substantial benefits not
merely incidental to the activity performed in order to
satisfy this Circuit’s remuneration test.’’ York v. Assn.
of Bar of City of New York, 286 F.3d 122, 126 (2d Cir.)
(finding that benefits in form of clerical support, limited
tax deductions, and networking opportunities are not
sufficient to meet ‘‘remuneration’’ test requirements),
cert. denied, 537 U.S. 1089, 123 S. Ct. 702, 154 L. Ed.
2d 633 (2002); see also Juino v. Livingston Parish Fire
District No. 5, 717 F.3d 431, 439–40 (5th Cir. 2013)
(concluding that plaintiff, volunteer firefighter, who
received benefits consisting of $2 per fire/emergency
call; life insurance policy; full firefighter’s uniform and
badge; firefighting and emergency response gear; and
firefighting and emergency first response training, did
not meet ‘‘remuneration’’ test). As we have noted in
part I A of this opinion, only if the remuneration test
is satisfied would the court apply the common-law
‘‘agency’’ or ‘‘right of control’’ test. See O’Connor v.
Davis, supra, 115.
In this case, referencing Pietras, O’Connor, and York,
the court agreed with the referee that Puryear’s factual
allegations were ‘‘too weak to establish an employment
relationship.’’ We agree and conclude that the court
properly applied the ‘‘remuneration’’ test, as interpreted
and applied by the Second Circuit to Title VII claims,
to affirm the referee’s granting of the motion to strike.
As we have stated previously, Connecticut case law
clearly establishes that our courts may look to federal
precedent for guidance in enforcing our antidiscrimina-
tion statutes. Having reviewed the complaint, we con-
clude that the court properly determined that it failed
to provide sufficient allegations that Puryear was an
employee of Echo Hose, as it does not state that she
was an employee nor does it allege that she received
any substantial benefits in her capacity as a member
of Echo Hose. Simply stated, in order to survive a
motion to strike, Puryear’s complaint had to allege that
she either was paid for her services or, in the alternative,
that she received indirect remuneration for these ser-
vices in the form of substantial benefits that were not
simply incidental to her job description, such as, for
example, health insurance, vacation time, sick pay, life
insurance, or retirement benefits. Because the com-
plaint did not so allege, we agree with the trial court
that the referee correctly ordered that it be stricken for
failure to state a claim upon which relief may be granted.
II
We next briefly address Puryear’s claim that the court
erroneously upheld the granting of the city’s motion to
strike without affording her an opportunity to engage
in further discovery or an evidentiary hearing.10 We
disagree.
During oral argument before this court, Puryear con-
ceded that she is unable to satisfy the ‘‘remuneration’’
test used by the federal courts in Title VII cases. In
light of this concession and our conclusion that the
application of the ‘‘remuneration’’ test to this case was
proper, Puryear could not have benefited from addi-
tional discovery or an evidentiary hearing on the issue.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the defendant has been identified as both Echo Hose
Ambulance and Echo Hose Ambulance Corps. throughout the pleadings.
We retain the name of the party in the case caption as identified in the
original pleading.
2
General Statutes § 46a-60 (a) provides in relevant part: ‘‘It shall be a
discriminatory practice . . . (1) [f]or 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 . . . because of
the individual’s race, color . . . .’’
General Statutes § 46a-60 (a) (4) makes it illegal for an employer ‘‘to
discharge, expel or otherwise discriminate against any person because such
person . . . has filed a complaint . . . .’’
The relevant provision of Title VII makes it an ‘‘unlawful employment
practice for an employer—(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual . . . because
of such individual’s race, color . . . .’’ 42 U.S.C. § 2000e-2 (a) (2012).
3
The motion to strike was filed by the city. The record is silent as to
whether Echo Hose has joined it. Nevertheless, both defendants filed briefs
in this appeal, and its disposition absolves both defendants of liability.
4
Initially, the complaint was filed by Brenda Puryear on behalf of her
minor daughter, Sarah. Once Sarah Puryear had reached the age of majority,
the court granted a motion to substitute her as a defendant.
5
There is nothing in the record explaining the term ‘‘precepting.’’ The
Merriam-Webster dictionary does not contain the term ‘‘precepting,’’ but
defines a preceptor as a teacher or tutor. See Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003).
6
The motion to strike was filed under § 46a-54-88a (d) of the Regulations
of Connecticut State Agencies, which provides, inter alia, that a ‘‘presiding
officer may, on his or her own or upon motion by a party, dismiss a complaint
or a portion thereof if the complainant or the commission . . . (2) Fails to
state a claim for which relief can be granted . . . .’’
7
We note that under the state regulations, the granting of a motion to
strike is a final decision. See Regs., Conn. State Agencies § 46a-54-88a; see
also General Statutes § 4-180 (c).
8
See Juino v. Livingston Parish Fire District No. 5, 717 F.3d 431, 435
(5th Cir. 2013) (adopting remuneration test as threshold requirement along
with Second, Fourth, Eighth, Tenth, and Eleventh Circuits); but see Marie
v. American Red Cross, 771 F.3d 344, 353 (6th Cir. 2014) (‘‘in this circuit,
remuneration is not an independent antecedent requirement, but rather it
is a nondispositive factor that should be assessed in conjunction with the
other . . . factors).
9
We rely on the Second Circuit’s interpretation of the term ‘‘employee’’
in Title VII cases because ‘‘it is well settled that decisions of the Second
Circuit, while not binding upon this court, nevertheless carry particularly
persuasive weight in the resolution of issues of federal law when the United
States Supreme Court has not spoken on the point.’’ (Internal quotation
marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 783, 23
A.3d 1192 (2011).
10
Additionally, Puryear argues that the court abused its discretion in
upholding the referee’s granting of the motion to strike because when ‘‘a
state agency’s determination of a question of law has not previously been
subject to judicial scrutiny,’’ the agency’s interpretation is ‘‘not entitled to
special deference.’’ We disagree. Our review of the record reveals that the
court did not afford special deference to the referee’s interpretation of the
term ‘‘employee’’ under CFEPA. In its memorandum of decision, the court,
quoting from Blinkoff v. Commission on Human Rights & Opportunities,
129 Conn. App. 714, 2 A.3d 1272, cert. denied, 302 Conn. 922, 28 A.3d 341
(2011), correctly stated that ‘‘[c]onclusions of law reached by the administra-
tive agency must stand if the court determines that they resulted from a
correct application of the law to the facts found and could reasonably and
logically follow from such facts.’’ (Internal quotation marks omitted.) Id.,
721. The court agreed with the referee only after it concluded its own
independent analysis of the issue and determined that the referee’s conclu-
sions were sound.