author: PETERS, C. J.

text:
    JEFFREY C. WILKINSON v. BOATS UNLIMITED, INC., ET AL.
    (15239)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.
    Argued January 18
    decision released February 13, 1996

      Eñe Watt Wiechmann, with whom, on the brief, were William H. Narwold and George B. Wilkinson, for the appellant (defendant Bayliner Marine Corporation).

      K. Wynne Bohonnon, with whom, on the brief, were R. William Bohonnon, David M. Bohonnon and John L. Senning, for the appellee (plaintiff).
   PETERS, C. J.

This appeal challenges the validity of a default judgment on the ground that the trial court rendering the judgment lacked personal jurisdiction over a foreign corporation. The plaintiff, Jeffrey C. Wilkinson, filed a complaint to recover damages for the loss of a vessel sold to him by the defendant Boats Unlimited, Inc. (Boats Unlimited), and manufactured by the defendant Bayliner Marine Corporation (Bayliner). The trial court, Arena, J., granted the plaintiffs motion for a default judgment against the defendants for failure to appear and, after a hearing in damages, rendered a judgment on March 26, 1992, against both defendants in the amount of $168,342.79. On October 18, 1994, Bayliner moved to set aside the default judgment rendered against it. The trial court, Stanley, J., denied Bayliner’s motion. Bayliner then appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

For the purpose of the present appeal, the record reveals the following pertinent facts. On June 22, 1989, the plaintiff purchased a vessel from Boats Unlimited, a Connecticut vendor, for $152,850. The vessel had been manufactured by Bayliner, a Delaware corporation with its principal place of business in the state of Washington. On August 20,1989, while the plaintiff was boating on Long Island Sound, the vessel sank as a result of the explosion of its exhaust and muffler system. The plaintiff survived, but the vessel was not recovered. The plaintiff filed a claim against his insurance company, Middlesex Mutual Assurance Company (Middlesex), which paid him for the loss of the vessel. By virtue of this payment and an express contractual agreement, Middlesex, which is a Connecticut corporation, became subrogated to the plaintiffs rights to sue for all property damage resulting from the loss of the vessel.

On August 23, 1990, the plaintiff, then a resident of Connecticut, filed a personal injury action to recover damages arising out of the sinking. Bayliner appeared to defend against that action and removed it to federal court. In a deposition taken in conjunction with the federal action, the plaintiff stated under oath that he had moved his residency from Connecticut to the state of Pennsylvania in November, 1990. The federal action concluded in December, 1993, when a jury awarded the plaintiff nominal damages of $1.

On August 17, 1991, during the pendency of the personal injury action in federal court, Middlesex filed the present complaint for property damages in the name of the plaintiff. Although the nominal plaintiff was no longer a resident of Connecticut at that time, in the summons attached to the complaint his address was given as 32 Florence Avenue, Wallingford, Connecticut. Bayliner filed no appearance in this action. A default judgment was rendered against Bayliner on March 26, 1992.

After unsuccessfully attempting to levy on the default judgment in Connecticut, Middlesex, suing in the name of the plaintiff, brought an action on the judgment in the state of Washington, where Bayliner has its principal place of business. Bayliner defended against that suit by alleging, inter alia, that the Connecticut default judgment was void for lack of personal jurisdiction under General Statutes § 33-411 (c) because the nominal plaintiff had not been a Connecticut resident when he filed his August 17, 1991 complaint. The Superior Court for Snohomish County agreed with Bayliner, but the Washington Appellate Court reversed, ruling that Bay-liner had failed to establish that the nominal plaintiff had not been a resident of Connecticut at the relevant time. The Washington Appellate Court did not reach the nominal plaintiffs alternate ground that Middlesex, as a Connecticut corporate resident and as the nominal plaintiffs subrogee, could itself invoke § 33-411 (c) as the real party in interest. Upon further appeal by Bay-liner to the Supreme Court of Washington, that court granted a motion for review but stayed its action pending the decision of this court.

After the adverse ruling of the Washington Appellate Court, Bayliner moved the Connecticut trial court to set aside the default judgment. The trial court denied Bayliner’s motion. The trial court agreed with Bayliner that, because the motion alleged an absence of personal jurisdiction, it could properly be filed even though more than four months had passed since the rendition of the default judgment. See General Statutes §§ 52-212 and 52-212a. On the merits of the motion, the trial court acknowledged the argument by Bayliner that a person such as the nominal plaintiff, who was not a resident of this state when the action was initiated, could not obtain jurisdiction over Bayliner, a foreign corporation, under § 33-411 (c). The trial court also acknowledged the argument by Middlesex that the relevant residency was not that of the nominal plaintiff but that of Middle-sex, the real party in interest, which conducts business within Connecticut. Without resolving either argument under § 33-411 (c), the trial court held that the facts on the record established an alternate ground for jurisdiction over Bayliner under General Statutes § 33-411 (b), which authorizes the exercise of long arm jurisdiction over “[e]very foreign corporation which transacts business in this state in violation of [General Statutes §§] 33-395 or 33-396 . . . .”

This appeal raises two issues. The first issue concerns the validity of the trial court’s exercise of its authority to consider opening the default judgment after the expiration of the four month time period established by § 52-212. The nominal plaintiff relies on this ground as an alternate basis for upholding the judgment of the trial court. The second issue concerns the validity of the trial court’s construction of § 33-411 (b) and the alternate arguments concerning the applicability of § 33-411 (c) to sustain the exercise of jurisdiction over Bayliner in the factual circumstances of this case. We agree with Bayliner on both issues. As the trial court concluded, it had the authority to consider Bayliner’s motion to open the default judgment. Contrary to the holding of the trial court, however, the default judgment was voidable for lack of personal jurisdiction over Bay-liner and Bayliner’s motion to set aside the default judgment therefore should have been granted.

I

Although §§ 52-212 and 52-212a normally limit the authority to open judgments to a four month period, these statutes do not preclude the opening of a default judgment that is rendered without jurisdiction over a defendant. The prefatory words of § 52-212a establish that the four month limitation only operates “[u]nless otherwise provided by law . . . .” As a matter of law, in the absence of jurisdiction over the parties, a judgment “is void ab initio and is subject to both direct and collateral attack.” Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1980); Trichilo v. Trichilo, 190 Conn. 774, 777-78, 462 A.2d 1048 (1983). The trial court properly relied upon these principles in its inquiry into the jurisdictional underpinnings of the default judgment.

The nominal plaintiff claims that Bayliner was nonetheless not entitled to relief because Bayliner had delayed inequitably in filing its motion to set aside the default judgment. That contention is predicated on factual assumptions regarding the time when Bayliner had actual notice of the nominal plaintiffs nonresidency, but that claim was not distinctly presented to the trial court, and the trial court, therefore, made no finding as to this issue. Even if such a fact had been established, however, the exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal. “We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion.” In re Baby Girl B., 224 Conn. 263, 294-95, 618 A.2d 1 (1992); Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 467, 440 A.2d 159 (1981). On the record before us, we are persuaded that the trial court did not abuse its discretion in addressing the merits of Bayliner’s jurisdictional attack on the default judgment rendered against it.

II

The principal issue before the trial court, and before us on appeal, is whether the default judgment rendered against Bayliner should be set aside because of the alleged absence of personal jurisdiction over Bayliner as a foreign corporation. This issue has two parts. First, Bayliner argues that the trial court improperly found personal jurisdiction under § 33-411 (b). Second, Bay-liner argues that the trial court could not properly have found personal jurisdiction under § 33-411 (c) because, when the action was initiated, the nominal plaintiff did not satisfy the statutory requirement of being a resident of this state. As a rejoinder to this argument, the nominal plaintiff contends that the trial court properly could have found personal jurisdiction under § 33-411 (c) because the relevant residency is that of the real party in interest, Middlesex, which can satisfy the residency requirement in its own right. In the circumstances of this case, we conclude that neither § 33-411 (b) nor § 33-411 (c) authorized the exercise of personal jurisdiction over Bayliner.

A

The trial court concluded, on the basis of inferences that it drew from the sheriffs return, that the requirements of § 33-411 (b) had been met in this case. The sheriffs return stated that the sheriff had “made due and legal service upon the within named Non-Registered Foreign Corporation Bayliner Marine Corporation by leaving with and in the hands of the Clerk in Charge at the Office of the Secretary of State for the State of Connecticut Two (2) true and attested copies of the original writ, summons, and complaint . . . The trial court inferred from the sheriffs return that Bayliner had improperly failed to register with the secretary of the state to transact business in Connecticut and that service of process had properly been effected in compliance with General Statutes § 33-411 (a). In light of these facts, the trial court held that jurisdiction had appropriately been exercised over Bayliner because, pursuant to § 33-411 (b), it had been shown to be a “foreign corporation which transacts business in this state in violation of section 33-395 or 33-396 . . . .” General Statutes § 33-411 (b). We disagree.

The difficulty with the holding of the trial court is that it assumes the very point that is at issue. By the express terms of § 33-411 (a), service on the secretary of the state was proper to vest jurisdiction in the trial court only if Bayliner was in fact “authorized to transact business in this state . . . .” The trial court, however, made no such finding. Significantly, subsection (b) of § 33-411 confers local jurisdiction over a foreign corporation only upon proof of “two conditions: the transaction of business in this state, and a cause of action arising out of the transaction of such business.” Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 251, 460 A.2d 481 (1983).

The nominal plaintiff urges us to fill this factual lacuna by reference to what he characterizes as “unequivocal concessions and judicial admissions” contained in exhibits that are part of the record in this case. He points in particular to the answer filed by Bayliner in the personal injury action that was tried in federal court, wherein Bayliner admitted that “it was the manufacturer of a Bayliner 34 foot ‘34500 Convertible’ watercraft, which it manufactured and distributed as a Bayliner product for ultimate sale to a consumer within the State of Connecticut . . . .” The trial court, citing nothing other than the sheriffs return as the basis for its holding, did not rely expressly on this “admission.” We agree with the trial court’s implicit conclusion that the “admission” would not establish that Bayliner in fact was transacting business in this state, because the “admission” says nothing about the manner in which Bayliner “distributed” its product in this state. Our review of the record persuades us that it contains no other evidence definitively establishing the missing predicate for personal jurisdiction under § 33-411 (b), namely, that Bayliner was transacting business in this state at the initiation of this litigation.

B

Even if the requirements of § 33-411 (b) have not been met, § 33-411 (c) may furnish an alternate basis for the exercise of personal jurisdiction over a foreign coiporation. Although the trial court did not resolve this issue, we will consider its merits because it was fully explored in the trial court and has been fully argued here. In the circumstances of this case, we conclude that § 33-411 (c) does not support the exercise of personal jurisdiction over Bayliner.

Section 33-411 (c) forecloses the rights of the nominal plaintiff to sue Bayliner in our state courts. That section expressly requires an individual plaintiff who does not have “a usual place of business in this state” to have resided here at the time when the action was brought. No claim has ever been made that the nominal plaintiff had a “place of business” in Connecticut. Bayliner has long asserted, and the nominal plaintiff now concedes, that he himself was no longer a Connecticut resident after November, 1990.

The nominal plaintiff claims, however, that the relevant residency is that of Middlesex, which has sufficient business contacts with Connecticut to invoke § 33-411 (c). The argument made is that Middlesex is the real party in interest, having been subrogated to all the rights of the nominal plaintiff as a result of reimbursing the nominal plaintiff for the property losses he suffered in the boating accident. This argument misconceives the law of subrogation. “[T]he insurer can take nothing by subrogation but the rights of the insured, and is subrogated to only such rights as the insured possesses. The principle has been frequently expressed in the form that the rights of the insurer against the wrongdoer cannot rise higher than the rights of the insured against such wrongdoer, since the insurer as subrogee, in contemplation of law, stands in the place of the insured and succeeds to whatever rights he may have in the matter. Therefore, any defense which a wrongdoer has against the insured is good against the insurer subrogated to the rights of the insured.” (Internal quotation marks omitted.) Orselet v. DeMatteo, 206 Conn. 542, 546-47, 539 A.2d 95 (1988). The provisions of the Practice Book are to the same effect. Practice Book § 104, entitled “Suit by Real Party in Interest,” provides: “An action may be brought in all cases in the name of the real party in interest, but any claim or defense may be set up which would have been available had the plaintiff sued in the name of the nominal party in interest.” (Emphasis added.) In light of these authorities, Middle-sex had no greater authority than did the nominal plaintiff to hale Bayliner into court.

The judgment is reversed and the case is remanded with direction to render judgment for Bayliner.

In this opinion the other justices concurred.

       General Statutes § 33-411 provides in relevant part: “Service of process on foreign corporation. . . .
      “(c) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows . . . (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers . . . .”

       General Statutes § 52-212 provides in relevant part: “Reopening judgment upon default or nonsuit, (a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of tire judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”
      General Statutes § 52-212a provides in relevant part: “Civil judgment or decree reopened or set aside within four months only. Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.
      . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .”

       General Statutes § 33-411 provides in relevant part: “Service of process on foreign corporation. . . .
      “(b) Every foreign corporation which transacts business in this state in violation of section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business.” In §§ 33-395 and 33-396, the described violations are expressly predicated on the fact that the foreign corporation has transacted business in Connecticut.

       The plaintiff has not distinctly argued, either in the trial court or in this court, that. Bayliner’s participat ion in the litigation in the state of Washington, as a matter of res judicata, should preclude relitigation of the jurisdiction issue in this state. Cf. Morabito v. Wachsman, 191 Conn. 92, 96-100, 463 A.2d 593 (1983); see Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982). We appreciate the courtesy of the Supreme Court of Washington in staying its own proceedings so as to afford this court plenary authority to decide the jurisdictional issue before us.

       See also Practice Book § 326.

       The trial court also made no finding in support of Bayliner’s allegation that the nominal plaintiff had committed fraud by listing a Connecticut address in the summons attached to his complaint.

       General Statutes § 33-411 provides in relevant part;; “Service of process on foreign corporation, (a) Any process, notice or demand in connection with any action or proceeding required or permitted by law to be served upon a foreign corporation authorized to transact business in this state which is subject to the provisions of section 33-400 may, when timely made, be served upon such corporation by any proper officer or other person lawfully empowered to make service, as follows: (1) When the secretary of the state and his successors have been appointed such corporation’s agent for service of process, by leaving two true and attested copies thereof together with the required fee at the office of the secretary of the state or depositing the same in the United States mails, by registered or certified mail, postage prepaid, addressed to such office. . . .”


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    WILLIAM AYALA v. GISELE SMITH ET AL.
    (15193)
    Peters, C. J., and Callahan, Borden, Norcott and Palmer, Js.
    Argued December 5, 1995
    decision released February 20, 1996

      Nicholas T. Kocian, with whom, on the brief, was James J. Dunham, Jr., for the appellant (plaintiff).

      Robert E. Young, for the appellee (defendant John Doe).
   NORCOTT, J.

The principal issue raised by this appeal is whether, under our rules of practice, a plaintiff may maintain an action against a defendant whose identity is unknown to the plaintiff and is therefore referred to as “John Doe.” Because we determine that the plaintiffs claim is moot, however, we do not reach this issue and dismiss the appeal for lack of subject matter jurisdiction.

The relevant factual and procedural background is as follows. On August 25,1992, the automobile in which the plaintiff, William Ayala, was a passenger was involved in an accident at the intersection of Broad Street and Park Street in the city of Hartford. The owner and operator of the vehicle in which the plaintiff was riding was Francisco Javier. The operator of the other vehicle involved in the accident, which allegedly made an improper left turn in front of Javier’s vehicle, abandoned his vehicle, fled the scene and has never been identified. The plaintiff learned shortly after the accident that the other vehicle had been leased from Agency Rent-A-Car (Agency) by Gisele Smith.

On July 9,1993, the plaintiff commenced a negligence action against Smith, the unknown driver of the other vehicle identified in the writ as “John Doe,” Agency and Javier to recover for injuries he had sustained in the accident. Agency filed a cross complaint against Smith, Doe and Javier. On March 16, 1994, Robert E. Young, the attorney for Agency, acting on behalf of Doe, filed a motion to dismiss the plaintiffs action as against Doe, on the ground that the trial court lacked personal jurisdiction over Doe because: (1) the rules of practice do not permit a plaintiff to proceed against an unknown defendant; and (2) service of process had never been properly effectuated against Doe. Subsequently, the plaintiff deposed Smith, who could not recall whether, or to whom, she might have loaned the vehicle that she had rented from Agency. On August 30, 1994, the trial court granted the motion to dismiss the plaintiffs action as to Doe, citing “insufficient service of process” as the ground. The plaintiff appealed from the judgment of the trial court to the Appellate Court and we transferred the case to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 4023.

On appeal, the plaintiff urges this court to adopt a rule that would permit a party to institute and maintain an action against an unidentified person, under a fictitious name, for a “reasonable time period” within which to attempt to discover that person’s identity. With regard to service of process, the plaintiff claims that Doe was properly served by the delivery of copies of the writ, summons and complaint to the commissioner of motor vehicles pursuant to General Statutes § 52-63, and to Doe at Smith’s last known address. Doe argues that the rule proposed by the plaintiff is unsupported by authority in this state regarding the use of fictitious names in a lawsuit and, with regard to service of process on Doe, that § 52-63 does not contemplate service on the commissioner of motor vehicles on behalf of an unknown party, and thus Doe was never properly served. We do not reach the merits of the parties’ arguments, however, because, in light of certain concessions made by the plaintiff during oral argument in this court, we determine that the case is moot and, accordingly, we have no jurisdiction to entertain the appeal.

Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. See Goodson v. State, 228 Conn. 106, 114, 635 A.2d 285 (1993), on appeal after remand, 232 Conn. 175, 653 A.2d 177 (1995); Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992); Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988). The issue of mootness often arises in the latter stages of the appeal process, when actions of the parties have resolved the underlying dispute between them. See Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) St. Pierre v. Solnit, 233 Conn. 398, 400-401, 658 A.2d 977 (1995). “An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.” Sobocinski v. Freedom of Information Commission, supra, 134-35. “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995); In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994); see also Sobocinski v. Freedom of Information Commission, supra, 134; Nader v. Altermatt, 166 Conn. 43, 56, 347 A.2d 89 (1974); Southbury v. American Builders, 162 Conn. 633, 634, 295 A.2d 566 (1972). The determination of whether a claim has become moot is fact sensitive, and may include the representations made by the parties at oral argument. Cf. Loisel v. Rowe, supra, 378.

At oral argument, the plaintiff conceded that: (1) at the time the trial court granted the motion to dismiss his claims against Doe, a “reasonable time” had already passed for discovery of the unknown driver’s identity, further inquiry into Doe’s identity at that point would likely have been fruitless and, in all likelihood, Doe will never be identified; and (2) with respect to the relief sought in the underlying action for personal injuries, the plaintiff recently had reached a satisfactory financial settlement with his uninsured motorist insurance carrier, and he could not, therefore, recover from Doe even if Doe’s identity were to be discovered in the future. Further, the plaintiff specifically conceded that, in light of these facts, even if he were to prevail on the merits of his appeal, this court could afford him no practical relief. It is clear, therefore, that, by his own admissions, the plaintiff has no present interest in pursuing Doe other than an academic one, and his claim falls squarely within the mootness doctrine.

At oral argument, the plaintiff urged us to reach the merits of his claim, nevertheless, arguing that it addresses a difficult situation that is likely to recur, namely, that of a party seeking to bring suit on a claim, which is subject to a statute of limitations, against an alleged toitfeasor who is not readily identifiable. The plaintiff apparently relies on the well established exception to the mootness doctrine “for issues that are ‘capable of repetition, yet evading review.’ ” Id. We are not persuaded, however, that the plaintiffs claim fits within this exception.

“Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will rise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Id., 382-83.

While we acknowledge the plaintiffs dilemma and agree that it might well recur in the context of other motor vehicle accidents, we are not convinced that there is a strong likelihood that the substantial majority of cases in which a party in such a situation attempts, unsuccessfully, to maintain an action against the unknown defendant will become moot before completion of the appellate process. Id., 384. The trial court’s dismissal of the plaintiffs claim against Doe for lack of personal jurisdiction is not an action of inherently limited duration. Id. Moreover, we see no reason why the issue presented in this case could not arise in a future case in which a plaintiff will not have had the benefit of a reasonable time within which to attempt to discover an unknown defendant’s identity, and in which the plaintiffs claim for damages will not have been otherwise satisfied and the plaintiff, therefore, will retain, during the appeal, a viable legal interest in identifying and obtaining proper jurisdiction over the unknown defendant. Thus, the exception is not applicable to the issue raised by the plaintiff in this case. In the absence of the existence of an actual dispute between the parties, the resolution of which can furnish some relief to the plaintiff, or an applicable exception to the mootness doctrine, we must dismiss the appeal.

The appeal is dismissed.

In this opinion the other justices concurred.

      Two alleged eyewitnesses to the accident claimed to have seen two unidentified males flee the other vehicle immediately after the accident had occurred.

       Counts five and six of Agency’s seven count cross complaint were directed to Doe alleging, respectively, indemnification and negligence.

       The plaintiff attempted to effect service of process on Doe by serving a copy of the complaint, writ and summons upon the commissioner of the department of motor vehicles of the state of Connecticut pursuant to General Statutes § 52-63. He also sent a copy of the complaint, writ and summons to Doe at Smith’s last known address.

       Although the plaintiff argues that he experienced difficulty in locating Smith and in taking her deposition, he does not claim that he had been improperly prevented from taking her deposition either by Smith or the trial court. Moreover, he concedes that once he deposed Smith, prior to the trial court’s granting of Doe’s motion to dismiss, there were no other avenues he could have pursued to locate Doe.

       In his brief to this court, the plaintiff argued that a party should be permitted to maintain an action against an unknown defendant “until such time as [the unknown defendant’s] identity is discovered.” (Emphasis added.) At oral argument, however, the plaintiff modified his position, claiming that an action against, an unknown defendant should be permitted to stand for a “reasonable time” in which to conduct discovery regarding the defendant’s identity.

       General Statutes § 52-63 provides: “Service upon motor vehicle operator or owner not found at his recorded address, (a) Any operator or owner of a motor vehicle at the time of issuance of his license or registration shall be deemed to have appointed the commissioner of motor vehicles as his attorney and to have agreed that any process in any civil action against him on account of any claim for damages resulting from his alleged negligence or the alleged negligence of his servant or agent in the operation of any motor vehicle in this state may be served upon the commissioner as provided in this section and shall have the same validity as if served upon the owner or operator personally, even though the person sought to be served has left the state prior to commencement of the action or his present whereabouts is unknown.
      “(b) Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the commissioner of motor vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the motor vehicle department if (1) it is impossible to make service of process at the operator’s last address on file in the motor vehicle department, and (2) the operator has caused ipjury to the person or property of another.
      “(c) Service of civil process may be made on the owner of a motor vehicle registered under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the commissioner of motor vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the motor vehicle department if (1) it is impossible to make service of process at the owner’s last address on file in the motor vehicle department, (2) the owner has loaned or permitted his motor vehicle to be driven by another, and (3) the motor vehicle has caused injury to the person or property of another.
      “(d) If service of process is made at the office of the commissioner of motor vehicles pursuant to subsection (b) or subsection (c) of this section, the officer making such service shall certify on the process that he has made a diligent effort to obtain service at the address of the owner or operator on file in the motor vehicle department and has been unable to make such service.

        “(f) The officer serving such process upon the commissioner of motor vehicles shall leave with the commissioner, at the time of service, a fee of five dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in the action. The commissioner of motor vehicles shall keep a record of each such process and the day and hour of service.”


author: BERDON, J.

text:
    DONALD LEVY v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (15087)
    Callahan, Borden, Berdon, Katz and Palmer, Js.

      Argued September 29, 1995
    decision released February 27, 1996

      Jeffrey J. Mirman, for the appellant (plaintiff).

      Robert B. Hempstead, with whom was Joseph F. Keefe, for the appellee (defendant Entertainment and Sports Programming Network, Inc.).
   BERDON, J.

The principal issue presented in this case is whether the hearing officer of the defendant commission on human rights and opportunities (commission) correctly allocated the burden of proof between the plaintiff and the defendant employer in determining if the employer was liable for a discriminatory employment practice.

The plaintiff, Donald Levy, filed a complaint with the commission alleging that the defendant Entertainment and Sports Programming Network, Inc. (ESPN), discriminated against him on the basis of his physical disability — a hearing impairment — in violation of General Statutes § 46a-60. The commission’s investigating officer found reasonable cause to believe that ESPN had discriminated against the plaintiff and certified the complaint for a public hearing pursuant to General Statutes §§ 46a-83 and 46a-84. The hearing officer appointed by the commission found that ESPN was not hable for a discriminatory employment practice. The plaintiff appealed to the Superior Court, which affirmed the hearing officer’s decision. On appeal, the AppeUate Court affirmed the trial court’s decision and the hearing officer’s analysis. Levy v. Commission on Human Rights & Opportunities, 35 Conn. App. 474, 646 A.2d 893 (1994). We granted the plaintiffs petition for certification and now affirm the judgment of the Appellate Court, though on different grounds.

The hearing officer found the following facts. Aware of the fact that the plaintiffs hearing was impaired, and that he was required to wear a hearing aid, ESPN employed the plaintiff on January 3, 1980, as a remote operator-truck driver. The position required the plaintiff to operate a truck containing sophisticated broadcasting equipment to various broadcast locations and to assist in assembling the equipment for the telecast. Federal regulations required that the plaintiff meet minimum physical requirements, including a minimal level of hearing, before being allowed to drive. See 49 C.F.R. § 391.41 et seq. Because ESPN accepted a medical certificate from Robert Marshall, the plaintiffs physician, dated October 31, 1979, stating that the plaintiff had the requisite level of hearing, the plaintiff was not required to undergo a medical examination when he was initially employed.

Within four months of the date of his employment, the plaintiff was involved in a series of incidents that raised concerns regarding his ability to perform safely the duties of his position. First, a few days after being employed, the plaintiff nearly caused an accident when he fell asleep at the wheel while returning from a sporting event in Rhode Island. Next, an ESPN vehicle was almost rendered inoperative when the plaintiff failed to notice that the safety valve to the compressor governor, which regulates the brakes, was venting pressurized air. On another occasion, while operating an ESPN vehicle, the plaintiff hit an overhang at a Connecticut gas station. Similarly, while backing up a truck at a location in Louisiana, the plaintiff failed to heed shouted warnings from his coworkers and struck the overhang of a building, thereby causing damage to the vehicle.

“(e) Service of process pursuant to this section shall be sufficient to confer jurisdiction of any such action upon the court to which the process is returnable. The court may proceed to determine the issues in the action and render final judgment but the court may, in its discretion, require further order of notice to the operator or owner.

In addition, the plaintiff was involved in two separate unrelated incidents in which he improperly activated a television camera. The first incident caused minor damage to the equipment, while the second incident completely “smoked” the camera. After the second incident, Joseph Commare, ESPN’s director of engineering, suspended the plaintiff for two weeks without pay, effective April 5, 1980. Commare then asked Rick McDowell, ESPN’s safety manager, to evaluate the plaintiffs competence as a truck driver. McDowell concluded that the plaintiffs driving history demonstrated that he could not safely operate a truck.

On April 21,1980, after he had been removed from the remote operator position, ESPN directed the plaintiff to undergo a medical examination by Bainbridge Hanley, a physician, to ascertain whether the plaintiff met the physical standards set forth in the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 391.41 et seq. As part of the examination, the plaintiffs hearing was evaluated by means of a forced whisper test, which was administered by Hanley’s wife. The plaintiff failed the forced whisper test, and, as a consequence, Hanley refused to certify that the plaintiff was qualified to be a truck driver.

Subsequently, on April 29, 1980, the plaintiff was transferred at his existing salary to the position of studio technician III. That same day, Barry Black, ESPN’s director of human resources, sent an intraoffice memo to Commare stating that “this transfer is necessary due to the fact that [the plaintiffs] hearing impairment has prevented him from satisfactorily passing ... [a] physical examination required for him to continue in his present capacity of Mobile Unit Driver.” The plaintiff, however, testified that he was simply told by Commare that he was being removed from his position as a truck driver because of his hearing disability.

With respect to the plaintiffs transfer from the position of remote operator-truck driver to that of studio technician, the hearing officer found that on “April 29, 1980, Mr. Commare advised [the plaintiff] that he was being transferred out of the remote area because of his hearing disability.” The hearing officer then concluded that the April 29, 1980 memo from Black to Commare, “without more, showed that ESPN deliberately used [the plaintiffs] hearing impairment as the basis of its decision to transfer [the plaintiff].”

After his transfer, the plaintiff periodically applied for other positions within ESPN, including a remote operator-truck driver position that was posted in November, 1982. ESPN offered various reasons why the plaintiff was never hired to fill any of those positions. Counsel for ESPN noted in correspondence with the commission’s investigator that, with respect to “the remote operator positions [sought by the plaintiff in 1982], it was already ESPN’s belief that because of his hearing impairment, [the plaintiff] was disqualified for them under [department of transportation] regulations . . . .”

Ultimately, on June 4, 1983, the plaintiff resigned. On May 23, 1983, prior to his resignation, the plaintiff filed a complaint with the commission alleging that ESPN had violated his rights under § 46a-60 (a) (1). The plaintiff claimed that, because of his hearing impairment, ESPN had removed him from the remote operator-truck driver position, had deprived him of promotional and other employment opportunities, and had constructively discharged him from his employment.

I

Connecticut statutorily prohibits discrimination in employment based upon race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, and learning disability or physical disability. General Statutes § 46a-60 (a) (1). Additionally, state law protects individuals from employment discrimination based upon their sexual orientation. See General Statutes § 46a-81c. Nevertheless, express discrimination is legally permissible if the employer proves that the factor in question is a bona fide occupational qualification (BFOQ) reasonably necessary for the normal operation of the employer’s particular business. General Statutes § 46a-60 (a) (1); see Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991) (whether gender is a BFOQ); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) (age is a BFOQ for airline captains). Clearly, a minimal level of hearing is a BFOQ for the position of remote operator-truck driver. 49 C.F.R. § 391.41 et seq. The hearing officer, however, made no finding as to whether the plaintiff met or did not meet that prerequisite.

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own anti-discrimination statutes. See Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991). Under federal law, there are four general theories of employment discrimination: disparate treatment, adverse or disparate impact, perpetuation into the present of the effects of past discrimination, and failure to make a reasonable accommodation. ABA Section of Labor and Employment Law, Employment Discrimination Law (2d Ed. 1983) p. 1. To date, in Connecticut, we have recognized the disparate treatment and adverse impact theories of employment discrimination.

This appeal requires consideration of only the “disparate treatment” type of case. Used in this general sense, “disparate treatment” simply refers to those cases where certain individuals are treated differently than others. Teamsters v. United States, 431 U.S. 324, 335-36, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status.

Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof: (1) the mixed-motive/Price Waterhouse model; Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct 1775, 104 L. Ed. 2d 268 (1989); and (2) the pretext/McDonnell Douglas-Burdine model. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

A

Mixed-Motive/Price Waterhouse Model

A “mixed-motive” case exists when an employment decision is motivated by both legitimate and illegitimate reasons. See Price Waterhouse v. Hopkins, supra, 490 U.S. 228 (plurality opinion). In such instances, aplaintiff must demonstrate that the employer’s decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a plaintiff must “submit enough evidence that, if believed, could reasonably allow a [fact finder] to conclude that the adverse employment consequences resulted ‘because of an impermissible factor.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992).

“The critical inquiry [in a mixed-motive case] is whether [a] discriminatory motive was a factor in the [employment] decision ‘at the moment it was made.’ ” Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 205, quoting Price Waterhouse v. Hopkins, supra, 490 U.S. 241. Under this model, the plaintiffs prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within aprotected class and that an impermissible factor played a “motivating” or “substantial” role in the employment decision. Price Waterhouse v. Hopkins, supra, 258; Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Tyler v. Bethlehem Steel Corp., supra, 958 F.2d 1181 (“[s]hould the plaintiff wish to prove his case as a ‘mixed-motives’ case, he must focus his proof directly at the question of discrimination and prove that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the employment decision”).

Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. “[T]he defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the impermissible factor] into account.” Price Waterhouse v. Hopkins, supra, 490 U.S. 258; Mt. Healthy City Board of Educations. Doyle, supra, 429 U.S. 274; see In re McCort, 161 Vt. 481, 490-91, 650 A.2d 504 (1994) (adopting under its own antidiscrimination statute the burden shifting form of analysis for mixed-motive cases).

B

Pretext/McDonnell Douglas-Burdine Model

Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting “facts [that are] sufficient to remove the most likely bona fide reasons for an employment action . . . .” Tyler v. Bethlehem Steel Corp., supra, 958 F.2d 1180. From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons. It is in these instances that the McDonnell Douglas-Burdine model of analysis must be employed. ABA Section of Labor and Employment Law, Employment Discrimination Law, 1987-1989 Supplement (2d Ed. 1991) p. 2; see Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 248; McDonnell Douglas Corp. v. Green, supra, 411 U.S. 792.

The plaintiffs burden of establishing a prima facie case is not onerous under this model. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 253. The plaintiff need prove only four elements by a preponderance of the evidence: (1) that he or she belongs to a protected class; (2) that he or she applied and was qualified for the position in question; (3) that despite his or her qualifications, the individual was rejected; and (4) that after the individual was rejected, the position remained open. Id., 252-53; Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 203. Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.

Under the McDonnell Douglas-Burdine model, the burden of persuasion remains with the plaintiff. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 253; Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 204. Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff s rejection. Texas Dept. of Community Affairs v. Burdine, supra, 254; Miko v. Commission on Human Rights & Opportunities, supra, 204. Because the plaintiffs initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas-Burdine model does not shift the burden of persuasion to the defendant. Therefore, “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons. . . . It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Dept. of Community Affairs v. Burdine, supra, 254-55; see Miko v. Commission on Human Rights & Opportunities, supra, 204. Once the defendant offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual. Texas Dept. of Community Affairs v. Burdine, supra, 255-56; Miko v. Commission on Human Rights & Opportunities, supra, 204.

The McDonnell Douglas-Burdine analysis keeps the doors of the courts open for persons who are unable initially to establish a discriminatory motive. If a plaintiff, however, establishes a Price Waterhouse prima facie case, thereby proving that an impermissible reason motivated a defendant’s employment decision, then the McDonnell Douglas-Burdine model does not apply, and the plaintiff should receive the benefit of the defendant bearing the burden of persuasion.

C

Hearing Officer Applied Incorrect Analytical Model

The facts found by the hearing officer indicate that, because of the plaintiffs driving history, ESPN may have had a legitimate reason for transferring the plaintiff from, and subsequently refusing to transfer him to, the position of remote operator-truck driver. Nevertheless, the hearing officer also specifically found that “[o]n April 29, 1980, Mr. Commare advised [the plaintiff] that he was being transferred out of the remote area because of his hearing disability.” (Emphasis added.) This latter finding, standing alone, is direct evidence of an impermissible motive for transferring the plaintiff. Direct evidence of discriminatory intent “may include evidence of actions or remarks of the employer that reflect a discriminatory attitude ... or [c]omments [that] demonstrate a discriminatory animus in the decisional process. ...” Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). Despite this evidence, the hearing officer did not shift the burden to ESPN under the mixed-motive analysis to prove that it would have made the same employment decision even if it did not take the plaintiffs physical disability into consideration. Rather, the hearing officer employed the McDonnell Douglas Burdine analysis and found that ESPN had articulated a legitimate nondiscriminatory reason, namely, the plaintiffs failure to drive safely. The hearing officer specifically concluded that ESPN “need not persuade the court that it was actually motivated by the proffered reasons.” Additionally, the hearing officer concluded that the plaintiff had not demonstrated that ESPN’s proffered reasons were pretextual. This analysis was incorrect. Because we conclude that the plaintiff had produced evidence that ESPN was motivated, at least in part, by his disability in deciding to transfer him, we hold that the hearing officer should have used the mixed-motive model of analysis.

II

ESPN argues that regardless of the model used, the plaintiff could not have prevailed. In essence, ESPN claims that even if direct evidence was presented requiring it to have shouldered the burden of persuasion discussed previously, the hearing officer’s failure to do so was harmless and as such the hearing officer’s decision should be affirmed. We agree.

Harmless error analysis is available in the administrative context. The Uniform Administrative Procedure Act provides that if an individual’s substantial rights have been prejudiced, the case should be remanded unless but one conclusion is required by law. General Statutes § 4-183 (j) and (k); see also Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 329 n.21, 596 A.2d 426 (1991), on appeal after remand, 228 Conn. 545, 636 A.2d 1360 (1994); Denby v. Commissioner, 6 Conn. App. 47, 58-59, 502 A.2d 954 (1986); Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 230, 497 A.2d 1005 (1985). We held in Adriani v. Commission on Human Rights & Opportunities, supra, 329 n.21, that if the evidence supports only one conclusion as a matter of law, then, despite the hearing officer’s error, the result should be affirmed. In this case, if the hearing officer’s error in applying the incorrect analytical model is to be held harmless, we must be able to state with legal certainty that the hearing officer, if she had applied the correct analysis, would have determined that, notwithstanding his physical disability, ESPN would have transferred the plaintiff from, and refused to reinstate him to, the position of remote operator-truck driver.

ESPN argues that there are two possible, nondiscriminatoiy legitimate reasons it might have had for transferring the plaintiff: (1) his unsafe driving history, and (2) Hanley’s refusal to certify the plaintiff’s hearing. Because we find the former reason to be adequate to hold the hearing officer’s error harmless, we need not reach the latter reason, which would preclude the need for any employment discrimination analysis.

The facts surrounding the plaintiffs driving history were fully considered by the hearing officer. Among the hearing officer’s factual conclusions were that (1) “Mr. McDowell [of ESPN] investigated [the plaintiffs] driving history and concluded that [the plaintiff] could not safely operate a truck,” (2) “Mr. McDowell’s conclusion was not based on [the plaintiffs] hearing impairment and would have been the same for any driver with the same driving history,” and (3) “[b]ased on Mr. McDowell’s investigation and recommendation and for public safety reasons, Mr. Commare removed [the plaintiff] from the remote operator position.” These factual findings, which the hearing officer reached irrespective of any particular mode of legal analysis employed, necessarily require the conclusion that ESPN transferred and refused to reinstate the plaintiff as a remote operator on the basis of his unsafe driving history, which was a legitimate, nondiscriminatory reason. Therefore, the hearing officer’s incorrect analysis is harmless.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 46a-60 provides in pertinent part: “(a) It shall be a discriminatory practice in violation of this section:
      “(1) For an employer, by himself or his agent, 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 or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s . . . physical disability . . . .”
      General Statutes § 46a-51 (15) defines “[pjhysically disabled” as referring “to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment . . . .” (Emphasis added.)

       We certified the following issue: “Was direct evidence of discrimination presented to the hearing officer so as to require the hearing officer to shift the burden of proof to the defendant?” Levy v. Commission on Human Rights & Opportunities, 231 Conn. 931, 649 A.2d 253 (1994).

       We review the hearing officer’s findings according to the “substantial evidence” rule, which governs judicial review of administrative findings. “In determining whether an administrative finding is supported by ‘substantial evidence,’ the reviewing court must defer to the agency’s assessment of the credibility of witnesses .... The determination of issues of fact by the administrative agency should be upheld if the record before the agency affords a substantial basis of fact from which the fact in issue can be reasonably inferred .... Ultimately, the question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the action taken.” (Citations omitted; internal quotation marks omitted.) Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 200-201, 596 A.2d 396 (1991).

       Title 49 of the Code of Federal Regulations, § 391.41, provides in relevant part: “(a) A person shall not drive a motor vehicle unless he is physically qualified to do so and, except as provided in § 391.67, has on his person the original, or a photographic copy, of a medical examiner’s certificate that he is physically qualified to drive a motor vehicle.
      “(b) A person is physically qualified to drive a motor vehicle if that person
      “(11) First perceives a forced whisper voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater that 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA standard) Z24.5-19S1.”
      Section 391.45 (b) (1) requires that commercial drivers be medically examined and certified every twenty-four months.

       See footnote 4.

       In his complaint filed with the commission, the plaintiff challenged the accuracy of the forced whisper test. The hearing officer concluded, however, that even if Hanley had found that the plaintiffs hearing was sufficient to satisfy federal requirements, ESPN was nevertheless entitled to remove the plaintiff from this position solely on account of his unsafe driving record. See part II of this opinion.

       The hearing officer also found that McDowell’s conclusion regarding the plaintiffs inability to drive safely was based on the repeated incidents in which the plaintiff had been involved and not on his hearing impairment.

       The United States Supreme Court has narrowly defined BFOQ: “[Discrimination is permissible [in] ‘certain instances’ where . . . discrimination is ‘reasonably necessary’ to the ‘normal operation’ of the ‘particular’ business. Each one of these terms — certain, normal, particular — prevents the use of general subjective standards and favors an objective, verifiable requirement. But the most telling term is ‘occupational’; this indicates that these objective, verifiable requirements must concern job-related skills and aptitudes. ’’Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 201, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991).

       See footnote 6.

       “Examples include an absolute refusal to consider [African-Americans] for employment, paying women a lower wage than that paid a man for the same work, and discharging a Spanish-sumamed employee for an offense for which [Anglo-Americans] are given lesser or no discipline.” ABA Section of Labor and Employment Law, Employment Discrimination Law (2d Ed. 1983) p. 1 n.l.

       “The disparate impact theory applies to patterns and practices [that] are facially neutral but discriminatory as applied, and does not require evidence of subjective intent to discriminate.” Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 202 n.8; see Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (k) and (l); Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).

       “A classic example is a departmental seniority structure where the employer has departments of varying desirability. If prior to the relevant time frame, the employer hired minorities only into the least desirable departments, and thereafter either flatly barred transfers between the departments or required a forfeiture of seniority as a condition of transfer, a minority employee would be effectively locked into an undesirable department, in which he had originally been placed as a consequence of discrimination. The legality of the seniority structure would then depend on whether it was ‘bona fide. ’ ” ABA Section of Labor and Employment Law, Employment Discrimination Law (2d Ed. 1983) p.1 n.2.

       This theory pertains to discrimination based on religion (title VII of the Civil Rights Act of 1964, § 701 [j], 42 U.S.C. § 2000e [j]) or mental or physical disability (Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.), where an employer is obligated to make a “reasonable accommodation.” See Ansonia Board of Education v. Philbrook, 479 U.S. 60, 107 S. Ct. 367, 93 L. Ed. 2d 305 (1986).

       In Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 203, we incorrectly identified “direct evidence” as an analytical theory of discrimination. “Direct evidence” is not a theory of liability, but rather a means by which a plaintiff may prove discriminatory intent. See footnotes 15 and 16 of this opinion.

       The nomenclature “disparate treatment” is occasionally used in a specific manner as a synonym for the McDonnell Douglas-Burdine model of analysis. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In fact, this specific use of the term was employed by this court in Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 202. It is more accurate, however, to describe the McDonnell Douglas-Burdine model as merely one form of the disparate treatment analysis.

       This analytical framework has on occasion been referred to as the “direct evidence” theory of discrimination. The designation of this analysis as “direct evidence” is misleading. For example, in applying New York’s employment discrimination law, which is similar to General Statutes § 46a-60, the Second Circuit Court of Appeals concluded that, under the Price Waterhouse model, aplaintiff may utilize both “direct evidence” and circumstantial evidence to prove that an employment decision was made “because of’ or motivated by impermissible factors. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992).

       Some treatises identify a third mode of proof — systematic motivation based on statistical patterns. See M. Player, Employment Discrimination Law (1988) p. 339; see also Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977); Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977).

       The plurality in Price Waterhouse discusses the defendant’s burden in terms of an “affirmative defense,” rather than a burden of production and persuasion. There is no substantive difference between the two terminologies. Specifically, in a mixed-motive case, the plaintiff has the burden of persuading the fact finder that the defendant’s employment decision was motivated at least in part by an impermissible factor, while the defendant bears the burden of persuading the fact finder that the same decision would have been reached absent the impermissible factor.

       The 1991 amendment to the federal Civil Rights Act of 1964 modified the holding of Price Waterhouse. Under the amendment, in mixed-motive cases, an unlawful employment practice is proven when the plaintiff demonstrates that an impermissible factor was a motivating factor for an employment decision, even though other factors also motivated the decision. 42 U.S.C. § 2000e-2 (m). An employer may limit the plaintiffs remedy to declaratory relief, injunctive relief, and/or attorney’s fees if it can demonstrate that it would have taken the same action in the absence of the impermissible motivating factor. 42 U.S.C. § 2000e-5 (g) (B). Thus, the 1991 amendment provides at least a limited remedy once the plaintiff proves that an impermissible factor played a motivating role in the employment decision. Tyler v. Bethlehem, Steel Corp., supra, 958 F.2d 1181. Our use of Price Waterhouse
        today remains unaffected by the 1991 amendment because our legislature has not revised the remedies available under the Connecticut statute.

       This standard is not rigid; the prima facie elements should be modified appropriately depending on the respective factual scenario. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 253 n.6.

       The Appellate Court, incorrectly concluded that the plaintiff had failed to present any direct evidence of discrimination. Levy v. Commission on Human Rights & Opportunities, supra, 35 Conn. App. 483.

       The hearing officer found that “[the plaintiffs] job history as a truck driver amply supports [ESPN’s] belief that [the plaintiff] posed a substantial safety risk as a truck driver.”

       Oí course, if the plaintiff did not possess the level of hearing required by the federal regulations; see footnote 4; then no analysis under any of the employment discrimination theories would be required. Because a certain level of hearing is a BFOQ, any legitimate employment action based on an individual’s lack of requisite hearing ability is not impermissible discriminatory conduct under our statute.