Opinion
AC 46091
03-19-2024
ALYSSA BARTOLOTTA v. HUMAN RESOURCES AGENCY OF NEW BRITAIN, INC.
James V. Sabatini, for the appellant (plaintiff). Tamara M. Nyce, with whom, on the brief, was Howard K. Levine, for the appellee (defendant).
Argued October 19, 2023
Procedural History
Action to recover damages for, inter alia, alleged employment discrimination, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Reed, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.
James V. Sabatini, for the appellant (plaintiff).
Tamara M. Nyce, with whom, on the brief, was Howard K. Levine, for the appellee (defendant).
Elgo, Cradle and Seeley, Js.
OPINION
ELGO, J.
The plaintiff, Alyssa Bartolotta, appeals from the summary judgment rendered by the trial court in favor of the defendant, Human Resources Agency of New Britain, Inc., in this employment discrimination action. On appeal, the plaintiff claims that the court improperly concluded that there is no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law on all four counts of her complaint. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts, viewed in the light most favorable to the plaintiff, and procedural history are relevant to this appeal. The defendant is a nonprofit organization that provides, inter alia, educational services to qualified children. On February 12, 2018, it hired the plaintiff as a teaching assistant in the early childhood division at its 180 Clinton Street location in New Britain (facility). In that capacity, the plaintiff worked in classrooms with approximately twenty preschool children.
It is undisputed that the plaintiff met the statutory requirements for that position.
At the time of her hire, the defendant provided the plaintiff with a copy of its employee handbook, which contained various policies. Policy 701 sets forth "rules of conduct" and provides in relevant part: "To ensure orderly operations and provide the best possible work environment, [the defendant] expects employees to follow rules of conduct that will protect the interests and safety of all employees and the organization. . . . The following . . . infractions of rules of conduct . . . shall result in disciplinary action, up to and including termination .... Working under the influence of alcohol or illegal drugs . . . ." Policy 703 pertains specifically to drug and alcohol use and provides in relevant part: "[The defendant] will not tolerate any controlled substance or alcohol use that threatens the health, safety or well-being of its employees, clients or the general public. To ensure worker safety and workplace integrity, this agency strictly prohibits the illegal manufacture, possession, distribution or use of controlled substances or alcohol in the workplace by employees. ..." Appended to the defendant's motion for summary judgment was the plaintiffs signed employee acknowledgment form, in which the plaintiff acknowledged that she "received the handbook" and that she understood "that it is [her] responsibility to read and comply with the policies contained in this handbook . . . ."
The defendant also signed an acknowledgment of the defendant's drug free workplace policy, which stated in relevant part: "I understand that it is unlawful to manufacture, possess, distribute or use controlled substances or alcohol in the workplace. I have been informed that violations of the Drug Free Workplace Policy will result in disciplinary action up to and including termination." In her deposition testimony, the plaintiff admitted that she was aware that her employment could be terminated if she came to work impaired.
The plaintiff has suffered from epilepsy her entire life and experiences, on average, one "bad" seizure a month. She nevertheless did not inform the defendant of that condition until she experienced her first seizure at work. In response, the defendant adopted a medical alert protocol in the spring of 2018 that documented seizure symptoms, protocols, and emergency contacts for the plaintiff. A copy of that protocol, which was titled "Alyssa Bartolotta Medical Alert-Seizure-Partial Complex," was posted on the nurse's desk. The defendant also allowed the plaintiff, in her discretion, to leave for the day whenever she experienced a seizure. In addition, the defendant transferred the plaintiff to a different classroom to ensure that she would be accompanied by a teacher or another teaching assistant at all times, and in the evenings in particular. In her deposition testimony, the plaintiff admitted that this transfer was an accommodation that the defendant provided for her safety, as well as the safety of students.
During her deposition, the plaintiff testified that the defendant conducted an interview with her prior to extending an offer of employment. She further testified that, at that time, she did not apprise the defendant of the fact that she had epilepsy.
In October, 2018, the plaintiff provided the defendant with a note from her physician, which requested that the defendant (1) store Valium in the nurse's office and (2) have the nurse administer it to the plaintiff in the event that she had a seizure at work. In her deposition testimony, the plaintiff explained that this note constituted an accommodation request "for the nurse to hold a few doses of Valium locked up somewhere safe, and then for me to lay down for thirty minutes to an hour, rest, and then hop back up and go back to my classroom . . . ."
Valium, known also as diazepam; see State v. Ruscoe, 119 Conn.App. 834, 837, 989 A.2d 667, cert, denied, 296 Conn. 903, 992 A.2d 330 (2010); is a controlled substance under Connecticut law. See General Statutes § 21a-240 (9); Regs., Conn. State Agencies § 21a-243-10 (a) (15).
That note contained a list of the plaintiffs medications. The plaintiffs physician then stated that, if the plaintiff "were to have a seizure at work, please send her to the nurse's office. The nurse can administer the Valium."
In a sworn affidavit submitted in support of the defendant's motion for summary judgment, Brenda Sherer, the defendant's Director of Organizational Development and Human Resources, explained that the defendant had a nurse at the facility on only two days each week. Moreover, that nurse was not permitted to administer medications to staff, as such activities exceeded the scope of her employment with the defendant. For that reason, the defendant denied the plaintiffs request in part. At the same time, the defendant, in consultation with the plaintiff, adopted a modified protocol for staff to follow when the plaintiff sustained a seizure at the facility. A copy of that December 5, 2018 protocol was appended to the defendant's motion for summary judgment.
That protocol was titled "Protocol to follow when staff has a seizure" and stated: "Protocol: Classroom staff will place [the plaintiff] in a safe place in the classroom. Classroom staff will call Health Manager, [Education and Family Services Manager], Assistant Director or Director to let us know [that the plaintiff] had a seizure. In the event that no one can be found classroom staff will call Chuc [at extension] 2235 and she will find someone to help. [They then] will go to the classroom and check on [the plaintiff]. [The plaintiff] will determine if she wants to stay or go home. In the event that [the plaintiff] decides to go home a manager will call the emergency contacts that staff provided to us. Always calling first [the plaintiffs mother]."
Notably, the plaintiff was not prohibited from using Valium when needed at the facility. At her deposition, the following colloquy occurred between the defendant's counsel and the plaintiff:
"Q. Were you ever told that you could not have your Valium at work?
"A. No.
"Q. You were just told that the nurse could not be the custodian of your Valium; is that right?
"A. Yes. . . .
"Q. So . . . other than [denying the request] to maintain custody of your Valium in the nurse's office, is there anything else that [the defendant] did not accommodate from your request for accommodation?
"A. No."
On January 2,2019, an incident occurred at the facility between the plaintiff and Amanda Doty, a teacher in the classroom adjacent to the plaintiff's. As Doty averred in her sworn affidavit: "I observed [the plaintiff] call a child by the wrong name. [The plaintiff] told me that she was 'just out of it' [The plaintiff] then told me that she uses medical marijuana and that her 'head is just not right from it yet' . . . [Her] comments made me concerned that she was not okay to be in the classroom with the children because she was still feeling the effects of the marijuana." Doty reported the incident to Suzanne Licki, the teacher in the plaintiffs classroom, who advised Doty to notify a supervisor. Doty then informed Ana Erazo, the defendant's Education Manager, of the statements made by the plaintiff that day.
In response, the defendant conducted an investigation into the plaintiffs purported drug use. As Sherer recounted in her affidavit: "On January 8, 2019, [Erazo] and [Human Resources Director] Andrea Goodison met with [the plaintiff] to discuss the report that she was impaired in the workplace. . . . [The plaintiff] admitted that she reported to work impaired and said the cause was taking too much medical marijuana." Copies of the investigation and interview notes were submitted in support of the defendant's motion for summary judgment, which indicate that, during that investigation, the plaintiff for the first time presented her medical marijuana card to the defendant. Those notes also state in relevant part: "When presented with the allegations of what was reported [by Doty] . . . [the plaintiff] did not deny showing up to work impaired [and stated that] 'I use a disposable vape pen which gives [between fifty and seventy] puffs [of medical marijuana]. I wasn't keeping track and I believe the pen ran out. I take it at [8 p.m.]. ... It is supposed to wear off within [eight] hours and I take it right after I take the Valium and other seizure medication. There is a possibility I may have used too much [and] more than prescribed [because] I ran out and had [two] seizures the following day. I am prescribed [four] puffs at [a] time." In addition, the notes indicate that the plaintiff "did not deny . . . reporting to work impaired and . . . stated, 'It's my mother's fault! I knew I should've said something [about the use of medical marijuana]' . . . ."
In her affidavit, Scherer averred that exhibit A-7 submitted by the defendant was "a true and accurate copy of the investigation and interview notes that were prepared in connection with [the defendant's] investigation."
It is undisputed that the plaintiff did not inform the defendant of her medical marijuana use until the investigation into the January 2,2019 incident commenced, as she admitted in her deposition testimony. In her complaint, she likewise acknowledged that, "[o]n January 8, 2019, the plaintiff notified the defendant that she takes prescribed medical marijuana and showed her state medical card to the defendant."
The notes also contain the following colloauv between the plaintiff, Erazo and Goodison:
"[Erazo]: Do you understand that you cannot show up to work impaired because the children require full attention and if you are impaired you are unable to respond quickly to their needs?
"[The Plaintiff]: Yes, I understand, and I thought [the marijuana] would have worn off by then. My mother is [going to] kill me and I'm mad at myself because I knew I should have told you guys. . . . You guys have been so nice and accommodating and I messed up.
"[Goodison]: Do you understand that this has nothing to do with your epilepsy?
"[The Plaintiff]: Yes, I do."
At the conclusion of her interview, the plaintiff was suspended without pay and directed to submit to a drug test. The results from that test, which was administered six days after the January 2, 2019 incident, came back positive for Valium but negative for marijuana.
As part of the investigation, Goodison interviewed Licki, the teacher who worked with the plaintiff on a daily basis. Licki informed her that, for approximately two weeks prior to the January 2, 2019 incident, she observed the plaintiff "to be forgetful, droopy, and unsteady on her feet." Licki at that time expressed concern regarding the safety of children in the plaintiff's care.
The defendant also received a letter from Chris Badenhop, a coworker at the facility, on January 8, 2019. In that letter, Badenhop stated that, during a conversation in a hallway on January 3, 2019, the plaintiff confided in him that "she was on medical marijuana." Badenhop indicated that he assumed the defendant "knew about this already, as [the plaintiff] so openly told me in the hallway, for others to hear. I didn't realize that this was new information, as I wasn't really involved with this staff member or classroom."
The plaintiff subsequently provided the defendant with a letter from her physician dated January 15, 2019. That letter stated in full:" [The plaintiff] has a medical card to use medical marijuana for anxiety and seizures. She uses a vapor at 8PM daily (2-4 puffs). If you have any questions or concerns, please don't hesitate to call."
On January 23, 2019, officials from the defendant's human resources department met with the plaintiff and informed her of the decision to terminate her employment. The written disciplinary notice issued by the defendant states in relevant part that, during the interview on January 8, 2019, the plaintiff "admitted that [she uses] medical marijuana and did show up to work impaired and that [she] may be abusing it. In addition, during multiple phone calls with the [Human Resources] Director, [she] did not deny showing up [to] work impaired." After detailing both Policy 701 and Policy 703, which are memorialized in the defendant's employee handbook, the notice states that the plaintiff violated "company rules" by reporting to work "impaired as admitted by [the plaintiff] to another staff member. [She] repeated it and never retracted this statement on several occasionfs]." The notice concludes: "[The defendant] has a legal obligation to protect the children in our care. In showing up to work while impaired [the plaintiff] violated the [applicable] standard of care .... [The plaintiff] failed to follow company policy and procedures; therefore, [her] employment with [the defendant] is being terminated, effective immediately."
The plaintiff thereafter filed a grievance regarding her termination, which was initially heard by the defendant's grievance committee. After that committee upheld the termination decision, her grievance was heard by the defendant's board of directors. That board, too, concluded that the termination decision was proper.
The plaintiff then filed an employment discrimination complaint with the Commission on Human Rights and Opportunities (commission) on May 29, 2019. In her accompanying affidavit, the plaintiff alleged that the defendant "terminated [her] employment because of her disability" and "failed to accommodate [her] by prohibiting her from working while taking prescription medication for her disability." On April 20, 2020, the commission issued a release of jurisdiction over the plaintiffs complaint.
On July 16, 2020, the plaintiff commenced the present action against the defendant. Her complaint contains four counts and alleges (1) disability discrimination in violation of General Statutes § 46a-60 (b) (1), (2) failure to accommodate, (3) a violation of General Statutes § 21a-408p, and (4) a violation of General Statutes § 31-51x. In response, the defendant filed an answer and several special defenses.
The plaintiff was deposed by the defendant on January 5, 2022. In her deposition testimony, the plaintiff acknowledged that her employment with the defendant could be terminated if she was impaired in the workplace. She nonetheless maintained that she was not impaired when the incident occurred on January 2, 2019, and that taking medical marijuana "does not make [her] impaired." The plaintiff further averred that the results of the drug test conducted on January 8, 2019, "proves [that she] didn't come to work impaired" on January 2, 2019.
On February 25, 2022, the defendant filed a motion for summary judgment. In its accompanying memorandum of law, the defendant argued: (1) the plaintiff could not establish a prima facie case of discrimination; (2) the plaintiffs failure to accommodate claim failed as a matter of law because the defendant provided the plaintiff with reasonable accommodations for her disability; (3) the plaintiff could not demonstrate that she was terminated because of her status as a qualifying user of medical marijuana; (4) the plaintiff could not establish a violation of § 31-51x because the defendant had a reasonable suspicion that the plaintiff was impaired in the workplace before it directed her to submit to a urine toxicology drug screening; and (5) the plaintiff's discrimination and reasonable accommodation claims were time barred. Appended to that memorandum were several exhibits, including the sworn affidavits of Sherer, Doty, and Licki, certain policies pertaining to drug use contained in the defendant's employee handbook, the medical protocol adopted by the defendant in the spring of 2018 regarding the plaintiff's seizures, the revised medical protocol adopted on December 5, 2018, copies of the defendant's investigation and interview notes related to the January 2, 2019 incident, the written disciplinary notice that the defendant furnished to the plaintiff on January 23, 2019, and portions of the plaintiffs January 5, 2022 deposition testimony.
The plaintiff filed an objection to the motion for summary judgment, as well as a memorandum of law and exhibits that included her January 5, 2022 deposition testimony, the May 28, 2019 affidavit that she filed with the commission, and the January 15, 2019 letter from her physician regarding her use of medical marijuana. The defendant filed a reply to that objection on June 15, 2022.
The court heard argument from the parties on the motion for summary judgment on August 1, 2022. It thereafter issued a memorandum of decision in which it concluded that summary judgment was appropriate on all four counts of the plaintiff's complaint. The court thus rendered judgment in favor of the defendant, and this appeal followed.
At the outset, we note the well established standard that governs our review of a trial court's decision to grant a motion for summary judgment. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . [T]he moving party . . . has the burden of showing the absence of any genuine issue as to all the material facts .... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Lucenti v. Laviero, 327 Conn. 764, 772-73, 176 A.3d 1 (2018).
I
For purposes of clarity, our analysis begins with the plaintiffs claim that the court improperly rendered summary judgment on the third count of her complaint, which alleges that the defendant violated the Palliative Use of Marijuana Act (act), General Statutes § 21a-408 et seq. More specifically, she alleges that a genuine issue of material fact exists as to whether the defendant violated § 21a-408p (b) (3) by improperly terminating her employment due to her status as a person qualified to use medical marijuana under the act. We disagree.
Although the act has been amended by the legislature since the events underlying this appeal; see, e.g., Public Acts, Spec. Sess., June, 2021, No. 21-1, § 77; those amendments have no bearing on the merits of this appeal. We therefore refer to the current revision of the act in this opinion.
Section 21a-408p (b) provides in relevant part: "(3) No employer may . . . discharge, penalize or threaten an employee solely on the basis of such person's or employee's status as a qualifying patient .... Nothing in this subdivision shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours." It is undisputed that, at the time of her termination, the plaintiff was a qualifying patient, as that term is used in the act; see General Statutes §§ 21a-408 and 21a-408p (a) (7); as she submitted a letter from her physician so indicating on January 15, 2019. It also is undisputed that the plaintiff did not disclose that status to the defendant until approximately one week after the January 2, 2019 incident. See footnote 7 of this opinion.
The plain language of § 21a-408p (b) (3) indicates that, to establish a violation thereof, an employer must be shown to have discharged "an employee solely on the basis of such person's or employee's status as a qualifying patient . . . ." (Emphasis added.) In the present case, the record belies such a contention. The investigation into the plaintiffs conduct on January 2, 2019, originated in a report from a coworker that the defendant was impaired in the workplace and was commenced before the plaintiff ever informed the defendant that she was a qualified patient under the act. The notes from that investigation contain an exchange between Erazo, Goodison, and the plaintiff, in which the plaintiff affirmatively stated her understanding that the investigation had "nothing to do with [her] epilepsy," but rather concerned the dangers posed to children when teaching staff is impaired in the workplace. Moreover, in her deposition testimony, the plaintiff admitted that the defendant's officials did not tell her that she could not take medical marijuana to treat her epilepsy, but rather simply told her that she could not come to work impaired. In addition, the written disciplinary notice issued by the defendant states in relevant part that the plaintiff violated company policy by reporting to work in an impaired state and concluded that her employment was being terminated because she "failed to follow company policy and procedures" regarding drug and alcohol use in the workplace. In light of that record, the plaintiff cannot establish that the defendant discharged her solely on the basis of her status as a qualifying patient.
Section 21a-408p (b) (3) also expressly provides that "[n]othing in this subdivision shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours." The plain import of that provision confirms that, while the palliative use of marijuana is authorized under Connecticut law, employers nonetheless may prohibit qualifying patients from being under its influence in the workplace. The policies contained in the defendant's employee handbook, as well as its drug free workplace policy that the plaintiff signed upon commencement of her employment, indicate that the defendant prohibited all employees from being under the influence of drugs or alcohol in the workplace. Accordingly, in light of the defendant's stated decision to terminate the plaintiff for reporting to work in an impaired state, we conclude that no genuine issue of material fact exists as to whether the defendant violated § 21a-408p (b) (3).
In her appellate brief, the plaintiff argues, with respect to her use of medical marijuana, that "[terminating an employee for using medication for a disability is the equivalent of terminating an employee because of her disability." She has provided no legal authority for that bald assertion, which runs contrary to the plain language of § 21a-408p (b) (3).
II
The plaintiff contends that the court improperly rendered summary judgment on the first count of her complaint, which alleges disability discrimination in violation of § 46a-60 (b) (1), a provision of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq. We do not agree.
General Statutes § 46a-60 provides in relevant part: "(b) It shall be a discriminatory practice in violation of this section ... (1) For an employer ... to discharge from employment any individual or to discriminate against any individual . . . because of the individual's . . . present or past history of mental disability, intellectual disability, learning disability, physical disability . . . ." Under CFEPA," '[p]hysically disabled' refers 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 . . . ." General Statutes § 46a-51 (15).
A
As a threshold issue, we address the plaintiffs claim that the court applied an improper legal standard in evaluating her disability discrimination claim. She claims that the court improperly applied the McDonnell Douglas-Burdine pretext model of analysis; see 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); rather than the mixed-motive model established in Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Our review of that question of law is plenary. See Hartford v. CEV Parking Hartford, LLC, 330 Conn. 200, 214, 192 A.3d 406 (2018) (whether trial court applied proper legal standard is subject to plenary review on appeal).
"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 Water-house model . . . and (2) the pretext/McDonnell Doug-las-Burdine model." (Citation omitted; footnote omitted.) Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104-105, 671 A.2d 349 (1996). Those two methods of proof apply to claims of intentional discrimination. See Jacobs v. General Electric Co., 275 Conn. 395, 403, 880 A.2d 151 (2005). "A mixed-motive case exists when an employment decision is motivated by both legitimate and illegitimate reasons. ... In such instances, a plaintiff 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Levy v. Commission on Human Rights & Opportunities, supra, 105. "Under [the mixed-motive] model, the plaintiffs prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a 'motivating' or 'substantial' role in the employment decision." Id., 106.
Our Supreme Court further explained that, "[o]ften, 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 .... 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." (Citation omitted; internal quotation marks omitted.) Id., 107; see also Jones v. Dept. of Children & Families, 172 Conn.App. 14, 24, 158 A.3d 356 (2017) (describing McDonnell Douglas-Burdine standard as" 'pretext' model of analysis"). "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 . . . prima facie case [under the mixed-motive model of analysis], thereby proving that an impermissible reason motivated a defendant's employment decision, then the McDonnell Douglas-Burdine model does not apply . . . ." Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 109.
The plaintiff in the present case alleged, inter alia, that (1) the defendant intentionally discriminated against her and "terminated [her] employment on account of her disability" and (2) the defendant "treated [her] adversely different from similarly situated employees . . . ." Broadly construed; see Doe v. Cochran, 332 Conn. 325, 333, 210 A.3d 469 (2019); her complaint thus implicates both the mixed-motive and the McDonnell Douglas-Burdine pretext models of analysis. In its memorandum of decision, the trial court explicitly concluded that the plaintiff had not offered any proof "that her disability was 'a motivating factor' in the defendant's decision to terminate her" or that "her termination was pretextual." In so doing, the court determined that the plaintiff had not met her burden under either the mixed-motive or the McDonnell Douglas-Burdine model of analysis. We, therefore, reject the plaintiffs contention that the court applied an improper legal standard in evaluating her claims of disability discrimination.
In her complaint, the plaintiff defined her disability as chronic epilepsy.
To the extent that the plaintiff complains that the trial court's discussion of those respective models of analysis was not exhaustive enough, we note that she did not seek an articulation of the court's judgment in any respect. See Practice Book § 66-5; see also Orcutt v. Commissioner of Correction, 284 Conn. 724, 739 n.25, 937 A.2d 656 (2007) ("in the absence of an articulation . . . [an appellate court will] presume that the trial court acted properly").
B
We next consider whether the court properly applied those legal standards. We begin with the plaintiffs claim that the "defendant terminated [her] because of her disability," which, she argues, entails an application of the mixed-motive model of analysis. Under that model, the plaintiff bears the initial burden of establishing a prima facie case by proving (1) "that he or she is within a protected class" and (2) "that an impermissible factor played a 'motivating' or 'substantial' role in the employment decision." Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 106. "Once the plaintiff has established [her] 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." (Footnote omitted; internal quotation marks omitted.) Id.
It is undisputed that the plaintiff is within a protected class under CFEPA due to her physical disability. See footnote 10 of this opinion.
At times, the decisional law of this state has reflected a dichotomy with respect to the evidentiary framework involved in the mixed-motive and the McDonnell Douglas-Burdine pretext models of analysis. See, e.g., Commission on Human Rights & Opportunities ex ret. Arnold v. Forvil, 302 Conn. 263, 277, 25 A.3d 632 (2011) (Price Waterhouse mixed-motive standard applies "where there is direct evidence of discrimination" (internal quotation marks omitted)); Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 425, 944 A.2d 925 (2008) (describing McDonnell Douglas-Burdine model as "circumstantial evidence [framework]"); Jacobs v. General Electric Co., supra, 275 Conn. 401 ("[e]mployment discrimination . . . can be proven either directly, with evidence that the employer was motivated by a discriminatory reason, or indirectly, by proving that the reason given by the employer was pre textual"). Our Supreme Court nonetheless has instructed that a plaintiff's burden under the mixed-motive model may be established "through direct ... or circumstantial evidence . . . ." Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 105. As the United States Court of Appeals for the Second Circuit observed, "we [previously] have equated direct evidence with evidence that shows that the impermissible criterion played some part in the decision-making process. . . . [The defendant] would have us define direct evidence as non-circumstantial evidence. But the basic problem with this touchstone is that direct evidence of intent cannot exist, at least in the sense of evidence which, if believed, would establish the ultimate issue of intent to discriminate. . . . Normally, direct evidence is described as evidence tending to show, without resort to inference, the existence of a fact in question. This is often contrasted with circumstantial, or indirect evidence, which requires the factfinder to take certain inferential steps before the fact in question is proved. But . . . all knowledge is inferential." (Citations omitted; internal quotation marks omitted.) Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir.), cert, denied, 506 U.S. 826, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). The court continued: "Direct evidence, it seems, is an unfortunate choice of terminology for the sort of proof needed to establish a mixed-motives case. Direct and indirect describe not the quality of the evidence presented, but the manner in which the plaintiff proves his case. Strictly speaking, the only direct evidence that a decision was made because of an impermissible factor would be an admission by the decisionmaker such as I fired him because he was too old. Even a highly-probative statement like You're fired, old man still requires the factfinder to draw the inference that the plaintiffs age had a causal relationship to the decision. But juries have always been allowed to draw such inferences." (Internal quotation marks omitted.) Id., 1185. The court thus clarified that the mixed-motive model of analysis "does not require . . . direct evidence of discriminatory animus (at least not in the sense of direct and circumstantial evidence). What is required is simply that the plaintiff submit enough evidence that, if believed, could reasonably allow a jury to conclude that the adverse employment consequences were because of an impermissible factor." (Emphasis in original; internal quotation marks omitted.) Id., 1187.
A plaintiffs initial burden under the mixed-motive model is not an insignificant one. "[T]he plaintiffs initial burden in a [mixed-motive] case is heavier than the de minimis showing required to establish a prima facie [case under the McDonnell Douglas-Burdine pretext model] . . . ." Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997); accord Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.) ("[i]n ... a 'mixed-motives' case, the plaintiff must initially show more than the 'not onerous' McDonnell Douglas-Burdine factors"), cert, denied, 506 U.S. 826, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992); Tyler v. Bethlehem Steel Corp., supra, 1186 (in mixed-motives case, "the defendant need do nothing until the plaintiff has proved unlawful motivation" (internal quotation marks omitted)). A plaintiff in a mixed-motive case bears the "burden of showing that an illicit motive played a substantial factor in the termination decision . . . ." Kirk v. Hitchcock Clinic, 261 F.3d 75, 78 (1st Cir. 2001). To satisfy that burden, "a plaintiff must produce a smoking gun or at least a thick cloud of smoke to support [her] allegations of discriminatory treatment." (Internal quotation marks omitted.) Serby v. New York City Dept. of Education, 526 Fed.Appx. 132, 135 (2d Cir. 2013); see also Morales v. Rooney, 509 Fed.Appx. 9, 11 (2d Cir. 2013) (plaintiffs in mixed-motive case "were required to adduce evidence that did more than hint at the possibility of unfair treatment on account of [an impermissible factor]" (internal quotation marks omitted)).
The plaintiff in the present case has not met that burden. Nothing in the record before us suggests that the defendant terminated the plaintiff's employment due to her epilepsy. The notes of the January 8, 2019 investigatory interview indicate that the defendant's human resources director specifically asked the plaintiff if she understood that the defendant's alarm over the January 2, 2019 incident "has nothing to do with your epilepsy," to which the plaintiff replied, "Yes I do." The written disciplinary notice that the defendant furnished to the plaintiff likewise makes no mention of her disability generally or epilepsy specifically. Moreover, the record before us demonstrates that, once alerted to the plaintiffs epilepsy following her first seizure at work in the spring of 2018, the defendant proactively took a number of steps to accommodate that disability, as discussed more fully in part III of this opinion. We therefore conclude that the plaintiff has not raised a genuine issue of material fact as to whether her disability played a substantial role in the defendant's decision to terminate her employment.
C
The trial court also concluded that the plaintiff failed to raise a genuine issue of material fact pursuant to the McDonnell Douglas-Burdine pretext model of analysis. We concur with that determination.
"[F] or the employee to first make a prima facie case of discrimination [under the McDonnell Douglas-Burdine model], the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. . . . The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. . . . This burden is one of production, not persuasion; it can involve no credibility assessment. . . . The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Emphasis added; internal quotation marks omitted.) Hartford Police Dept. v. Commission on Human Rights & Opportunities, 347 Conn. 241, 257, 297 A.3d 167 (2023); see also Perez-Dickson v. Bridgeport, 304 Conn. 483, 515, 43 A.3d 69 (2012) (after defendant articulates nondiscriminatory reason for employment action, "the burden is then on the plaintiff to prove by a preponderance of the evidence that the real reason for the disparate treatment was discrimination on the basis of membership in the protected class"); cf. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ("[i]t is not enough ... to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination" (emphasis in original)).
Assuming, arguendo, that the plaintiff can satisfy all four prongs of her initial burden, she still cannot prevail, as the defendant has stated a legitimate, nondiscriminatory reason for its decision to terminate her employment. It is undisputed that, following an investigation into the January 2, 2019 incident, the defendant concluded that the plaintiff had been impaired at work, in violation of the defendant's policies prohibiting employees from being under the influence of drugs in the workplace. The defendant communicated that nondiscriminatory reason to the plaintiff when it met with her on January 23, 2019, and memorialized it in its written disciplinary notice. Because the defendant proffered a legitimate, nondiscriminatory justification for its decision to terminate the plaintiffs employment, the burden was on the plaintiff to demonstrate that this reason "is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Internal quotation marks omitted.) Hartford Police Dept. v. Commission on Human Rights & Opportunities, supra, 347 Conn. 257. The plaintiff failed to submit any evidence in that regard and does not argue on appeal that the aforementioned reason was pretextual.
In that written disciplinary notice, the defendant stated in relevant part that, during the interview on January 8, 2019, the plaintiff "admitted that [she uses] medical marijuana and did show up to work impaired and that [she] may be abusing it. In addition, during multiple phone calls with the [Human Resources] Director, [she] did not deny showing up to work impaired." That notice further stated that the plaintiff violated "company rules" by reporting to work "impaired as [she] admitted ... to another staff member" and then concluded: "In showing up to work while impaired [the plaintiff] violated the [applicable] standard of care .... [The plaintiff] failed to follow company policy and procedures; therefore, [her] employment with [the defendant] is being terminated, effective immediately."
In her appellate brief, the plaintiff does not refute the court's conclusion that she failed to offer any proof that the defendant's stated rational for terminating her employment was pre textual and insists that "[t]his is not a pretext case."
Furthermore, we note that the plaintiffs burden under the final step of the McDonnell Douglas-Burdine pretext model "is the same as the plaintiffs initial burden" under the mixed-motive model. Tyler v. Bethlehem Steel Corp., supra, 958 F.2d 1185. In part II B of this opinion, we concluded that the plaintiff had not met her initial burden under the mixed-motive model of raising a genuine issue of material fact as to whether her disability played a substantial role in the defendant's decision to terminate her employment. For that reason, she likewise cannot satisfy her burden under the McDonnell Douglas-Burdine pretext model to raise a genuine issue of material fact that the real reason for her termination was discrimination on the basis of membership in a protected class. See Perez-Dickson v. Bridgeport, supra, 304 Conn. 515. We therefore conclude that the court properly rendered summary judgment in favor of the defendant on the plaintiffs claim of disability discrimination.
Under the mixed-motive model of analysis, the plaintiffs initial burden requires proof "that an illicit motive played a substantial factor in the [employment] decision . . . ." Kirk v. Hitchcock Clinic, supra, 261 F.3d 78. Under the final step of the McDonnell Douglas-Burdine pretext model, the plaintiffs burden in opposing a defendant's motion for summary judgment is to present evidence that the employment decision "actually was motivated by illegal discriminatory bias." (Internal quotation marks omitted.) Hartford Police Dept. v. Commission on Human Rights & Opportunities, supra, 347 Conn. 257.
III
The plaintiff also claims that the court improperly rendered summary judgment on the second count of her complaint, in which she alleged that the defendant failed to accommodate her disability in violation of § 46a-60 (b) (1). We disagree.
Section 46a-60 (b) (1) requires employers to reasonably accommodate an employee's disability. See Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008). "In order to survive a motion for summary judgment on a reasonable accommodation claim, the plaintiff must produce enough evidence for a reasonable jury to find that (1) [she] is disabled within the meaning of the [statute], (2) [she] was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiffs] disability, did not reasonably accommodate it. . . . If the employee has made such a prima facie showing, the burden shifts to the employer to show that such an accommodation would impose an undue hardship on its business." (Citations omitted; internal quotation marks omitted.) Id., 415-16.
The plaintiff concedes that she did not inform the defendant of her epilepsy disability until she suffered her first seizure at work in the spring of 2018. The undisputed evidence shows that the defendant thereafter proactively implemented a number of accommodations, including adoption of a medical alert protocol titled "Alyssa Bartolotta Medical Alert-Seizure-Partial Complex," which documented seizure symptoms, protocols, and emergency contacts for the plaintiff.The defendant also allowed the plaintiff, in her discretion, to leave for the day whenever she experienced a seizure. In addition, the defendant transferred the plaintiff to a different classroom to ensure that she would be accompanied by a teacher or another teaching assistant at all times, and evenings in particular. In her deposition testimony, the plaintiff admitted that this transfer was an accommodation that the defendant provided for her safety, as well as the safety of students. Those accommodations undoubtedly were reasonable measures taken by the defendant upon learning of the plaintiffs disability, and the plaintiff has not argued otherwise in this appeal.
A copy of that protocol was posted on the nurse's desk "so that staff knew who to contact and how to respond when [the plaintiff] had a seizure" in the workplace.
Instead, she alleges that the defendant improperly denied two distinct requests for accommodation purportedly made by the plaintiff on October 8, 2018, and January 15, 2019, respectively. We address each in turn.
A
We begin with the plaintiffs contention that the defendant improperly denied her request for an accommodation on October 8, 2018. At that time, the plaintiff Provided the defendant with a note from her Physician. which requested that the defendant (1) store Valium in the nurse's office and (2) have the nurse administer it to the plaintiff in the event that she had a seizure at work. In her deposition testimony, the plaintiff explained that this note constituted an accommodation request "for the nurse to hold a few doses of Valium locked up somewhere safe, and then for me to lay down for [thirty] minutes to an hour, rest, and then hop back up and go back to my classroom . . . ."
The record before us does not contain a copy of that note from the plaintiffs physician. It nevertheless is undisputed that the plaintiff submitted that note to the defendant on October 8, 2018, as the defendant admitted in its answer to the plaintiffs complaint. Moreover, in support of its motion for summary judgment, the defendant furnished a report dated October 15, 2018, from Erazo to Goodison regarding the note that the defendant received from the plaintiffs physician, which states in relevant part: "[The] note includ[ed] a list of the plaintiffs medications. The note stated that if the plaintiff 'were to have a seizure at work, please send her to the nurse's office. The nurse can administer the Valium. Please allow her to rest in the nurse's office for [thirty to sixty] minutes.' "
In a sworn affidavit submitted in support of the defendant's motion for summary judgment, Sherer explained that the defendant had a nurse at the facility only two days each week. Moreover, that nurse was not permitted to administer medications to staff, as such activities exceeded the scope of her employment with the defendant. For that reason, the defendant denied the plaintiffs request in part. At the same time, the defendant did not prohibit the plaintiff from having Valium at the facility, as the plaintiff conceded in her deposition testimony. Rather, the defendant simply denied the plaintiffs request to have the part-time nurse serve as the custodian thereof.
In her deposition testimony, the plaintiff stated that Erazo instructed her to keep her Valium in her purse while at the facility and admitted that she was never told that she could not have her Valium at work.
On appeal, the plaintiff maintains that the defendant's denial of her October 8, 2018 accommodation request violated her rights under § 46a-60 (b) (1). In response, the defendant argues, inter alia, that this claim is time barred, as the conduct in question occurred outside the 180 day limitation period contained in General Statutes (Rev. to 2017) § 46a-82 (f). We agree with the defendant.
All references to § 46a-82 (f) in this opinion are to the 2017 revision of that statute, which the defendant pleaded as a special defense. In moving for summary judgment on the plaintiffs failure to accommodate claim, the defendant alternatively argued that her claim was time barred and that it failed on its merits and has renewed both arguments in its appellate brief in this appeal.
Pursuant to § 46a-82 (f), any person claiming to be aggrieved by an alleged discriminatory practice is required to file a complaint with the commission "within one hundred and eighty days after the alleged act of discrimination . ..." As our Supreme Court has held, compliance with that time limit is mandatory unless "waiver, consent, or some other compelling equitable tolling doctrine applies." Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001). In the present case, the plaintiff filed her complaint with the commission on May 29, 2019. Any allegation of a discriminatory practice that occurred prior to November 30, 2018, therefore, is barred by that statute of limitations.
It is undisputed that both the plaintiffs request for an accommodation to store Valium at the facility and the defendant's response thereto occurred in October, 2018. Moreover, the plaintiff has not alleged that waiver, consent, or some other compelling equitable tolling doctrine applies to that accommodation request. Accordingly, her claim with respect to that request is barred by the statute of limitations contained in § 46a-82 (f).
B
The plaintiff also claims that the defendant improperly denied what she refers to in her appellate brief as her "medical marijuana accommodation request." We do not agree.
First and foremost, the plaintiff has presented no evidence that she made such a request of the defendant. As she acknowledged in her complaint and deposition testimony, she did not disclose her use of medical marijuana to the defendant until January 8, 2019. See footnote 7 of this opinion. Although she furnished a letter from her physician on January 15, 2019, the physician did not recommend or request that the defendant provide any accommodations to the plaintiff. Rather, the physician simply stated: "[The plaintiff] has a medical card to use medical marijuana for anxiety and seizures. She uses a vapor at 8PM daily (2-4 puffs). If you have any questions or concerns, please don't hesitate to call." Furthermore, the plaintiff was asked during her deposition "[w]here in [her] request for accommodation is there any reference at all to medical marijuana," to which she replied: "There isn't." The plaintiff also was asked if "there [was] anything else other than [denying the request] to maintain custody of your Valium in the nurse's office, is there anything else that we did not accommodate from your request for accommodation?" The plaintiff answered, "No." On the record before us, we cannot conclude that the plaintiff requested an accommodation for her medical marijuana use.
In addition, it is unclear what-if any-accommodation the defendant could make with respect to the plaintiffs use of medical marijuana short of allowing her to appear impaired in the workplace. The plaintiffs medical marijuana prescription called for her to take between two and four "puffs" of medical marijuana every day at 8 p.m. In her deposition testimony, the plaintiff explained that, when she took the medication as directed, she would not become impaired and that she would never depart from those directions.
To the extent that the plaintiff is suggesting that the defendant should permit her to disregard the directions on her medical marijuana prescription to allow her (1) to use it during the workday or (2) to appear at the facility in an impaired state, she has provided no legal authority that supports that bold proposition. In this regard, we reiterate that the act expressly provides that "[n]othing in this subdivision shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours." General Statutes § 21a-408p (b) (3).
The sole case relied on by the plaintiff is Stewart v. Snohomish County PUD No. 1, 262 F.Supp.3d 1089 (W.D. Wn. 2017), affd, 752 Fed.Appx. 444 (9th Cir. 2018), a federal case applying the state law of Washington. In her appellate brief, the plaintiff notes that "the trial court's decision makes no mention of the Stewart case." For three reasons, that silence is understandable.
First, because Stewart involves the proper application of Washington state law, it is both inapposite and nonbinding authority. Second, that case is factually distinct from the present case in several respects. Stewart involved a plaintiff who took prescription medication during the workday to treat an existing disability and whose physician provided a letter to the defendant employer explaining that the plaintiff was" 'able to work without restrictions'" after the medication was administered. Id., 1094, 1097. By contrast, the plaintiff here was not directed to take medical marijuana during the workday, but rather was prescribed to take it at 8 p.m. each day. Moreover, unlike the plaintiff in Stewart, the plaintiff in the present case did not inform her employer that she was under such treatment and did not provide any communication from her treating physician indicating that she could work without restriction after taking medical marijuana during the day. In addition, the plaintiff in Stewart, who worked as a customer service representative at a utility company; id., 1093; performed markedly different duties. Whereas the plaintiff in Stewart primarily assisted "customers in person or over the phone with issues with their public utility services and billing"; id.; the plaintiff here was entrusted with the care of approximately twenty preschool children in a classroom setting. Indeed, her employment as a teaching assistant required satisfaction of certain statutory prerequisites, which speaks to the gravity of her position. See, e.g., Friedenberg v. School Board of Palm Beach County, 911 F.3d 1084, 1098 (11th Cir. 2018) ("[O]ur schools have a singular custodial and tutelary responsibility for our nation's most precious resource-our children. . . . Our teachers . . . are directly given the responsibility to ensure the safety and protection of our children. Each family sending a child into the care and custody of [a school] is counting on [its] teachers not only to educate them, but to keep them safe. It is to them that we look to safeguard the classroom and protect our students.").
Third, and perhaps most significantly, the District Court in Stewart found that, although the plaintiff in that case had "exhibited signs of impairment at work"; Stewart v. Snohomish County PUD No. 1, supra, 262 F.Supp.3d 1096; the defendant had not shown that "the effects of [her] medication . . . prevented her from properly performing her job" as a customer service representative. Id., 1104. In the present case, the plaintiff never has suggested that she can properly perform her job as a preschool teaching assistant while impaired by the use of medical marijuana.
In light of the foregoing, we conclude that no genuine issue of material fact exists as to whether the plaintiff made a medical marijuana accommodation request or whether the defendant violated § 46a-60 (b) (1) by denying such a request. The court, therefore, properly rendered summary judgment on the second count of the plaintiffs complaint.
IV
As a final matter, the plaintiff claims that the court improperly concluded that no genuine issue of material fact exists as to whether the defendant violated § 31-51x by requiring her to take a drug test on January 8, 2019. She contends that the defendant lacked a reasonable suspicion to do so. We disagree.
Section 31-51x provides in relevant part: "(a) No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance. . . ." That statute, "in plain language, prohibits an employer from requiring an employee to submit to a urinalysis drug test without reasonable suspicion." Tomick v. United Parcel Service, Inc., 135 Conn.App. 589, 608-609, 43 A.3d 722, cert, denied, 305 Conn. 920,47 A.3d 389 (2012).
Neither the General Statutes nor any state regulation defines the term "reasonable suspicion" as it is used in § 31-51x. In Poulos v. Pfizer, Inc., 244 Conn. 598, 606, 711 A.2d 688 (1998), our Supreme Court explained that § 31-51x "was enacted as part of a comprehensive legislative plan regulating workplace drug testing" and "was intended to provide the same protections to private employees in Connecticut as those protections that are afforded to employees of the federal government by the fourth amendment to the United States constitution." The court further opined that "the issue of voluntary consent to drug testing under § 31-51x should be resolved in a manner consistent with federal fourth amendment constitutional law." Id., 606-607. In his concurring opinion, Justice McDonald emphasized that, under established fourth amendment jurisprudence, "[reasonable suspicion is a lesser standard . . . than probable cause. . . . The collective knowledge of the employer should determine reasonable suspicion for the drug testing." (Citations omitted; internal quotation marks omitted.) Id., 619 (McDonald, J., concurring).
Guided by that precedent, it is appropriate to look to the criminal context in ascertaining the applicable standard for reasonable suspicion. In that context, our Supreme Court has observed that "[Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content [from] that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable to show probable cause. . . . Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . [I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Citation omitted; internal quotation marks omitted.) State v. Lewis, 333 Conn. 543, 569, 217 A.3d 576 (2019).
In her appellate brief, the plaintiff submits that "[i]t is undisputed that the defendant lacked reasonable suspicion on January 8, the day it ordered the plaintiff to submit to drug testing." We disagree.
Prior to January 8, 2019, the defendant had no knowledge of the plaintiffs medical marijuana use. Shortly after the January 2, 2019 incident transpired, Doty notified Licki and Erazo of her concern that the plaintiff "was not okay to be in the classroom with the children because she was still feeling the effects of the marijuana." In response, the defendant opened an investigation into the allegations of drug use by the plaintiff. As part of that investigation, Goodison interviewed Licki, the teacher who worked with the plaintiff on a daily basis. Licki informed her that, for approximately two weeks prior to the January 2, 2019 incident, she observed the plaintiff "to be forgetful, droopy, and unsteady on her feet." Licki at that time expressed concern regarding the safety of children in the plaintiff's care. The defendant also received a letter from Badenhop, who stated that, on January 3, 2019, the plaintiff told him that "she was on medical marijuana."
On January 8, 2019, Goodison and Erazo met with the plaintiff to discuss the report that she was impaired in the workplace. At that time, the plaintiff for the first time notified the defendant that she used medical marijuana. Moreover, as Sherer noted in her affidavit, "[d]ur-ing [that] interview . . . [the plaintiff] admitted that she reported to work impaired and said the cause was taking too much medical marijuana." The notes of that interview similarly state in relevant part: "When presented with the allegations of what was reported [by Doty] . . . [the plaintiff] did not deny showing up to work impaired and stated: 'I use a disposable vape pen which gives [between fifty and seventy] puffs [of medical marijuana]. I wasn't keeping track and I believe the pen ran out. I take it at [8 p.m.]. ... It is supposed to wear off within [eight] hours and I take it right after I take the Valium and other seizure medication. There is a possibility I may have used too much [and] more than prescribed [because] I ran out and had [two] seizures the following day. I am prescribed [four] puffs at [a] time."
The interview notes also contain the following colloquy between the plaintiff and Erazo:
"[Erazo]: Do you understand that you cannot show up to work impaired because the children require full attention and if you are impaired you are unable to respond quickly to their needs?
"[The Plaintiff]: Yes, I understand, and I thought [the marijuana] would have worn off by then. My mother is [going to] kill me and I'm mad at myself because I knew I should have told you guys. . . . You guys have been so nice and accommodating and I messed up."
In light of (1) the observations of the plaintiff in the preschool workplace by Doty and Licki, (2) the letter from Badenhop, (3) the plaintiff's disclosure during the investigatory interview that she used medical marijuana, (4) the plaintiffs admission during that interview that she reported to work impaired, (5) the plaintiffs statement that she may have taken too much medical marijuana prior to the January 2, 2019 incident, and (6) her statement that she "messed up," we agree with the trial court that no genuine issue of material fact exists as to whether the defendant had a reasonable suspicion to require the plaintiff to take a drug test following her investigatory interview on January 8,2019. A reasonable person armed with that information would suspect that the plaintiff was under the influence of drugs in the classroom, which could adversely affect her job performance. The court, therefore, properly rendered judgment on the fourth count of the plaintiffs complaint.
The judgment is affirmed.
In this opinion the other judges concurred.