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Commission On Human Rights and Opportunities v. Echo Hose Ambulance

Supreme Court of Connecticut

July 26, 2016

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
v.
ECHO HOSE AMBULANCE ET AL.

          Argued March 30, 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).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          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 Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq. More specifically, we must decide whether a volunteer must satisfy the predominant ‘‘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 judgment; 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 suspended without good cause, and was terminated without good cause. Although Sarah’s termination was later overruled, such that she was able to complete the precepting program, members of Echo Hose voted against making Sarah a member.

         Brenda thereafter filed a complaint with the commission 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 determining who is an employee under CFEPA is the ‘‘right to control test, ’’ which Sarah satisfied. The referee determined 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 properly 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 Ambulance, supra, 156 Conn.App. 253. We granted Sarah’s petition for certification to appeal limited to the following 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 Ambulance, 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 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’’ [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 guidance 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 ...


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