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ANN HOWARD'S APRICOTS RESTAURANT v. CHRO5/28/1996
The principal issue on appeal is whether the trial court properly determined that a hearing officer for the commission on human rights and opportunities had abused her discretion in failing to strike the direct testimony of a defendant who died before he could be fully cross-examined. We disagree in part with the trial court and, consequently, reverse the judgment in part.
This case began in 1991 when the defendant John Doe II, a waiter employed at the plaintiff restaurant, Ann Howard's Apricots Restaurant, Inc. (plaintiff), filed a complaint with the named defendant, the commission on human rights and opportunities (commission), alleging that the plaintiff had discriminated against him in violation of General Statutes § 46a-60 (a)(1) on the
basis of the plaintiff's belief that Doe suffered from acquired immune deficiency syndrome (AIDS). The commission investigated the complaint and issued a probable cause finding on January 23, 1992. After attempts at conciliation had failed, the commission certified the complaint for a public hearing pursuant to General Statutes §§ 46a-83 and 46a-84, at which hearing officer Deborah S. Freeman presided.
Doe testified during three days of hearings, on August 14, November 2 and November 16, 1992. The first two days consisted of Doe's complete direct testimony, while the third day consisted of Doe's partial cross-examination. Thereafter, all parties agreed to postpone the remainder of Doe's cross-examination in order to permit the testimony of nonparty witnesses. Although hearing dates were scheduled in December, 1992, to complete Doe's cross-examination, those dates were cancelled because Doe became ill. Doe died on February 3, 1993, before he could be cross-examined any further.
After Doe's death, the complaint was amended to substitute for him Annette Blondeau, executrix of his estate. Additionally, the commission was added as a party. Soon thereafter, the plaintiff filed a motion to strike Doe's direct testimony because it had not been subject to full cross-examination, but the motion was denied. The hearing officer determined that instead of striking the direct testimony, she would take into consideration the fact that a large part of the direct testimony had not been subject to cross-examination and would, accordingly, afford that portion less weight than any contrary evidence that had been presented during the hearing and that had been subject to cross-examination.
During the three days of hearings Doe testified to the following. He had been hired by the plaintiff in May, 1983. Toward the end of 1990, he began to lose weight and hair and, because he was weak, tired and had shaking episodes, he experienced difficulty in serving food and drinks that spilled easily. Doe initially diagnosed himself with hypoglycemia and placed himself on a
special diet to counteract the effects of hypoglycemia. Because his condition worsened, the plaintiff placed Doe on an involuntary leave of absence to commence on December 8, 1990, in order to permit him to recover from his illness. Doe testified that there had been no time limit on this leave and that Kevin Quinn, the plaintiff's general manager, had told him that his job would be available when he was ready to return. During his subsequent medical treatment, Doe was diagnosed with bacterial pneumonia and tested positive for the presence of the human immunodeficiency virus (HIV). While Doe was on the leave of absence, Quinn, other members of the managerial staff, and other employees became suspicious that Doe had AIDS. In March, 1991, when Doe had recovered from pneumonia and was able to return to work, the plaintiff refused to reinstate
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