LEXSEE 2003 CONN SUPER LEXIS 1992

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					                                      LEXSEE 2003 CONN SUPER LEXIS 1992

                               Herman Lewis v. Bourdon Forge Company, Inc. et al.

                                                    CV990089115S

                      SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF
                                  MIDDLESEX, AT MIDDLETOWN

                                              2003 Conn. Super. LEXIS 1992

                                                 July 9, 2003, Decided
                                                  July 9, 2003, Filed



NOTICE: [*1] THIS DECISION IS UNREPORTED                      forge where the metal was formed [*2] into parts for
AND MAY BE SUBJECT TO FURTHER APPELLATE                       various uses. Forging is a relatively hazardous
REVIEW. COUNSEL IS CAUTIONED TO MAKE AN                       occupation, subjecting the employees to extreme heat and
INDEPENDENT DETERMINATION OF THE STATUS                       to burns from flying sparks and hot chips which are
OF THIS CASE.                                                 conditions created by the nature of the work.
                                                                   On September 29, 1993, in the course of his
LexisNexis(R) Headnotes
                                                              employment, the plaintiff sustained an injury but did not
                                                              file workers' compensation claim until September 9, 1994.
                                                              At the tine of the injury, Bourdon carried workers'
JUDGES: DANIEL SPALLONE, JUDGE TRIAL
                                                              compensation insurance through the defendant EBI, who
REFEREE.
                                                              received notice of the plaintiff's claim on June 26, 1995.
                                                              EBI paid the plaintiff the workers' compensation benefits
OPINIONBY: DANIEL SPALLONE
                                                              associated with the claim to the extent to which he was
                                                              entitled.
OPINION: MEMORANDUM OF DECISION
                                                                   The plaintiff was laid off by Bourdon in November of
    This action was tried on the Amended Complaint of
                                                              1998. He then brought suit in June 1999, against Bourdon
the plaintiff, Herman Lewis, dated April 25, 2003, in
                                                              alleging discrimination in violation of Connecticut
which, Count One, against the defendant, Bourdon Forge
                                                              General Statutes § 31-290a. He later amended his
Company, Inc. ("Bourdon"), alleges a discriminatory
                                                              Complaint, alleging bad faith and mishandling of workers'
discharge in violation of Connecticut General Statutes §
                                                              compensation claims, by adding Count Two, against the
31-290a, and Count Two, against the defendant, EBI
                                                              defendant EBI.
Companies/Orion Capital ("EBI), which alleges bad faith
and mishandling of workers' compensation claims.                  In order to establish bad faith, evidence is required to
                                                              prove that the insurer acted with dishonest purpose, moral
    After the plaintiff rested, both defendants' moved for
                                                              obliquity, furtive design or ill will. See Sponzo v.
Judgment of Dismissal for plaintiff's failure to make a
                                                              Underwriters Insurance Group, 1996 Conn. Super.
prima facie case.
                                                              LEXIS 710, *8 (1996), [*3] citing Buckman v. People
    The court granted the Motion for Judgment of              Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987).
Dismissal filed by the defendant EBI and denied the
                                                                   The court is well aware that, when acting on a Motion
Motion filed by Bourdon.
                                                              for Judgment of Dismissal for failure of the plaintiff to
    The plaintiff was an employee of the defendant            make a prima facie case, it must credit the plaintiff's
Bourdon. He was employed as a forger during the course        evidence and interpret same in a light favorable to the
of which he worked with metal heated to a malleable           plaintiff.
condition, which was then inserted between dies in a drop
                                                                                                                     Page 2
                                             2003 Conn. Super. LEXIS 1992, *


     In this case there is not an iota of evidence, presented        The court expressly finds the facts pertinent to the
by the plaintiff, to support the contention that EBI acted in   issue to be as follows.
bad faith and mishandled the plaintiff's workers'
                                                                     The plaintiff worked at Bourdon from October 1,
compensation claim.
                                                                1972 until he was laid off effective November 16, 1998.
      There was no showing that EBI acted with a                His skills and preference indicate a desire on his part to
dishonest purpose, moral obliquity, furtive design or ill       work as a forger. However, after his injury and an
will.                                                           evaluation of his disability, it was medically determined
                                                                that he could no longer physically perform the job
     The plaintiff's own evidence indicates that EBI
                                                                requirements of a forger much to his disappointment. The
followed all directions of the Workers' Compensation
                                                                plaintiff was given light work as an inspector which he
Commissioner, paid all sums agreed to or ordered whether
                                                                performed and was paid a forger's rate for light duty.
in the form of a voluntary agreement specific award or
additional discretionary benefits. EBI paid all sums, due            There was no evidence that the plaintiff was
the plaintiff, in full.                                         discriminated against in the light duty assigned [*6] to
                                                                him. He was paid more than other inspectors and sent to
     The fact that EBI questioned the nature of the
                                                                take special classes to be certified at more sophisticated
plaintiff's job searches did not constitute bad faith or
                                                                inspection techniques.
mishandling on its part. EBI exercised its legal right to
question the extent to which the plaintiff participated in           Starting in November 1998, Bourdon, because of
job searches. EBI paid the sums due the plaintiff [*4]          business conditions, laid off a large number of workers,
regularly and as required by the Commissioner. Count            including the plaintiff and all other inspectors.
Two of the Plaintiff's Complaint was properly dismissed.
                                                                     The inspectors were called back to work, where and
    In Count One of the Plaintiff's Operative Complaint,        when required, based on the needs of the employer and the
he alleges violation of Connecticut General Statutes §          skill of the inspectors.
31-290a which provides:
                                                                     Of the 98 workers laid off, 48 were called back over
    No employee who is subject to the provisions of this        several months. Fifty, including the plaintiff, were never
chapter shall discharge, or cause to be discharged, or in       called back.
any manner discriminate against any employee because
                                                                     The plaintiff earnestly desired to work as a forger and
the employee filed a claim for workers' compensation
                                                                indicated disappointment in being unable to be medically
benefits or otherwise exercised the rights afforded to him
                                                                qualified to do so.
pursuant to the provisions of the chapter.
                                                                     The court finds that the plaintiff was laid off because
    The elements of a cause of action under § 31-290a
                                                                of the needs of Bourdon in a business crises and was not
are that the plaintiff filed a claim for workers'
                                                                let go in violation of Connecticut General Statutes §
compensation benefits or otherwise exercised rights under
                                                                31-290a.
the statute, that he was discharged and that a casual
connection exists between the two. Ford v. Blue Cross               The rehires had the special skills and met the
and Blue Shield of Connecticut, Inc., 216 Conn. 40, 52,         requirements for the particular duties assigned to them.
578 A.2d 1054 (1990).
                                                                     The plaintiff has not persuaded the court that a
     In pursuing an action 31-290a, the plaintiff bears the     discrimination reason more likely motivated the employer
initial burden of proving by the preponderance of the           to lay off the defendant, and, the court finds that the
evidence a prima facie case of discrimination . . . If the      employer's explanation, that it laid [*7] off a large
plaintiff meets this standard, the burden shifts to the         number of employees in response to general business
defendant to rebut [*5] the presumption of discrimination       conditions and hired back those whose experience and
by producing evidence of a legitimate, nondiscriminatory        skills were required, is found to be credible.
reason for its action. If the presumption raised by the
prima facie case is rebutted . . . the plaintiff must satisfy        The court concludes that the defendant Bourdon, in
the fact finder that he was the victim of either direct or      laying off the plaintiff did not violate Connecticut
                                                                General Statutes § 31-290a.
indirect discrimination by showing that a discriminatory
reason more likely motivated the employer or indirectly             Accordingly, judgment may enter as follows:
by showing that the employer's proffered explanation is
unworthy of credence. Chernovitz v. Preston Trucking                On Count One of the Plaintiff's Complaint, for the
Co., 52 Conn. App. 570, 572-73, 729 A.2d 222 (1999).            defendant, Bourdon Forge Co., Inc., against the plaintiff,
                                                                Herman Lewis.
                                                                                                        Page 3
                                         2003 Conn. Super. LEXIS 1992, *


    On Count Two of the Plaintiff's Complaint, judgment       Cost of suit is awarded the defendants.
of dismissal is entered in favor of the defendant, EBI
                                                              DANIEL SPALLONE
Companies, against the plaintiff, Herman Lewis.
                                                              JUDGE TRIAL REFEREE

				
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