Opinion
No. CV03 040 15 75 S
August 4, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendants, Mountain Grove Cemetery Association (Mountain Grove) and Armand Chevrette, move for summary judgment as to counts one, two, three, five and six of plaintiff Mary Cyr's second amended complaint. For the reasons stated below, the motion is denied as to counts one, two and three. It is granted as to counts five and six.
The plaintiff asserts claims against the defendants for having terminated her employment following a work-related injury to her neck. After a period of treatment, the plaintiff told defendant Chevrette that she was scheduled to undergo surgery on September 20, 2001, and requested that she either be allowed to go on vacation for the two weeks prior to her surgery or that she be allowed to work until September 20, 2001, and receive pay for two weeks of vacation time. In late August 2001, the plaintiff received a letter from the defendants indicating that her employment would be terminated, effective September 6, 2001.
The plaintiff alleges in the first count of her amended complaint that the defendants discriminated against her in violation of General Statutes § 31-290a, the workers' compensation statute. In the second count, she alleges disability discrimination in violation of General Statutes § 46a-60. In the third count, she alleges gender discrimination in violation of General Statutes § 46a-60. In the fourth count, she alleges invasion of privacy. In the fifth count, she alleges wrongful discharge in violation of public policy. In the sixth count, she alleges defamation. The court, Wolven, J., granted the defendants' motion to strike count four of the amended complaint on July 18, 2003. The defendants now move for summary judgment on counts one, two, three, five and six.
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 CT Page 11927-ff motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). The defendants have submitted an affidavit from defendant Chevrette, excerpts of the plaintiff's deposition, and deposition exhibits. The plaintiff has submitted her affidavit, affidavits from two other persons, Barbara Romanos and Janet Feather, and excerpts from the plaintiff's and defendant Chevrette's deposition.
"Unlike other areas of the law, where a defendant files a motion for summary judgment challenging the merits of an employment discrimination claim, the plaintiff has an initial burden of persuasion, albeit an attenuated one. As the Second Circuit has recently held, [t]he burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis . . . The de minimis standard as applied to the plaintiff's burden of proof to establish a prima facie case of discrimination when a defendant files a motion for summary judgment has been widely accepted in federal case law." (Citations omitted; internal quotation marks omitted.) Gordon v. Yale-New Haven Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 365472 (May 22, 1998, Levin, J.). "As the Supreme Court recently reaffirmed, a disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer's proffered reasons. [ Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)] (holding that if fact finder rejects employer's proffered nondiscriminatory reasons as unbelievable, it may infer `the ultimate fact of intentional discrimination' without additional proof of discrimination) . . ." (Internal quotation marks omitted.) Chuang v. University of California Davis, 225 F.3d 1115, 1127 (9th Cir. 2000); see also Gallo v. Prudential Residential Services, 22 F.3d 1219, 1225-26 (2d Cir. 1994).
I
In the first count, the plaintiff alleges unlawful discrimination in violation of General Statutes § 31-290a. Section 31-290a provides, in pertinent part, that "[n]o employer who is subject to the provisions of CT Page 11927-fg this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter." "General Statutes 31-290a was designed to protect plaintiffs who file for workers' compensation benefits and is in essence a statutorily created tort deriv[ed] from the action for wrongful discharge set forth in Sheets [ v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980)]." (Internal quotation marks omitted.) Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 365-66, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). "To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a right afforded her under the act and that the defendant discriminated against her for exercising that right." Diaz v. Housing Authority, 258 Conn. 724, 731, 785 A.2d 192 (2001). Specifically, "[t]he plaintiff . . . must establish (a) [protected activity, i.e.,] that he filed a claim for workers' compensation benefits or otherwise exercised his rights under chapter 568 of the Connecticut General Statutes [Workers' Compensation Act]; (b) an employment action disadvantaging the plaintiff; and (c) a causal connection between the protected activity and the adverse employment action." (Internal quotation marks omitted.) Contois v. Carmen Anthony Restaurant Group, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160287 (March 21, 2003, Holzberg, J.).
The defendants contend that the plaintiff removed herself from employment for an indefinite period and therefore cannot prove a prima facie case of discrimination in violation of § 31-290a. The plaintiff, however, has submitted evidence that is sufficient to raise a genuine issue regarding the truth of the defendants' proffered reason for their action. The evidence includes an affidavit from Janet Feather, who avers that she was employed by the defendant Mountain Grove Cemetery Association from March 1997 to April 2000, and that she witnessed a work-related injury sustained by the plaintiff. She further states: "[The plaintiff] had to go on Workers' Compensation as a result of the injury. Despite her obvious pain and discomfort, [the plaintiff] continued to come to work, out of fear that [Chevrette] would fire her, which he was always threatening to do." In weighing the evidence in the light most favorable to the plaintiff, the court concludes that the plaintiff has raised a genuine issue of fact as to the truth of the reason proffered by the defendants for the plaintiff's termination. The defendants' motion for summary judgment is denied as to the first count.
II
In the second count, the plaintiff alleges disability discrimination in CT Page 11927-fh violation of General Statutes § 46a-60, Subsection 46a-60 (a) provides in relevant part: "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 . . ."
The defendants argue that under Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir. 1999), an individual can not establish a prima facie case if the individual is unable to regularly and reliably attend work. In Waggoner v. Olin Corp., supra, 169 F.3d 484, the court did state that "it . . . [is] fair to conclude that in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability." The court in Waggoner, however, also pointed out that it had previously "upheld a jury verdict finding that a failure to accommodate reasonable requests for medical leave violates the ADA." Id., 483.
"[The Connecticut Supreme Court] previously has recognized that in construing the Fair `Employment Practices Act [§ 46a-51 et. seq.] [it is] properly guided by the case law surrounding federal fair employment legislation"; (internal quotation marks omitted). Perodeau v. Hartford, 259 Conn. 729, 738, 792 A.2d 752 (2002); "and the analysis is the same under both." Craine v. Trinity College, 259 Conn. 625, 637 n. 6, 791 A.2d 518 (2002).
In weighing the evidence, in the light most favorable to the plaintiff, the court concludes that the plaintiff has raised a genuine issue of material fact as to whether she was fired because of her disability. The evidence shows, among other things, the plaintiff needed surgery, she requested a leave of absence of two months for a recovery period, the defendants' history of using temporary employees, and the defendants' custom of extending leaves of absence of several months to other employees. The defendants' motion for summary judgment is denied as to the second count.
III
In the third count, the plaintiff alleges gender discrimination in violation of General Statutes § 46a-60. Subsection 46a-60 (a) provides in relevant part: "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 . . . sex . . ."
The defendants assert that the plaintiff was not terminated because of her gender. To establish a prima facie claim of gender discrimination a female employee must establish, among other things, "that she was treated less favorably than comparable male employees in circumstances from which CT Page 11927-fi a gender-based motive could be inferred . . ." United Technologies v. Commission on Human Rights Opportunities, 72 Conn.App. 212, 226, 804 A.2d 1033, appeal denied, 262 Conn. 920, 812 A.2d 863 (2002). The plaintiff states in her affidavit: "Other male employees have been out of work for several months without losing their jobs, including Linder West, Mark Hasledakes and Armand Chevrette." (Cyr affidavit, ¶ 32.) Additional evidence presented by the plaintiff as to Chevrette's conduct gives rise to a genuine issue of material fact as to whether the plaintiff was treated differently than men in sufficiently similar situations and, further, whether she was terminated because of her gender. The motion for summary judgment is denied as to the third count.
IV
In the fifth count, the plaintiff alleges wrongful termination in violation of the public policy embodied in state and federal medical leave statutes. "[The Supreme Court has] recognized an action for wrongful discharge of an at-will employee in the seminal case of Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 476, 427 A.2d 385 (1980) (created public policy exception limiting discretion to terminate at-will employees). In interpreting this exception, we note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . This narrow public policy exception allowing a common-law wrongful discharge action by an employee who can prove a demonstrably improper reason for dismissal is an attempt to balance the competing interests of employer and employee . . . The employer is allowed, in ordinary circumstances, to make personnel decisions without fear of incurring civil liability. Employee job security, however, is protected against employer actions that contravene public policy . . . Accordingly, the employee has the burden of proving a violation of important public policy." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 306, 802 A.2d 800 (2002).
The plaintiff alleges that the defendants violated public policies embodied in state and federal family medical leave laws by terminating her upon her request for leave due to a medical condition. General Statutes § 31-51ll(a) provides that, "an eligible employee shall be entitled to a total of sixteen work-weeks of leave during any twenty-four-month period, such twenty-four-month period to begin with the first day of leave taken, for one or more of the following . . . (4) Because of a serious health condition of the employee."
The defendants argue that the plaintiff is barred from asserting the CT Page 11927-fj public policy embodied in such laws because Mountain Grove does not employ the requisite number of employees to subject it to the state or federal family medical leave laws. Defendant Chevrette avers in his affidavit that "[a]t no time has Mountain Grove ever had 50 employees, or has ever come under the jurisdiction of the Family and Medical Leave Acts." An "employer" for the purposes of family and medical leave is defined in General Statutes § 31-51kk(4) as "a person engaged in any activity, enterprise or business who employs seventy-five or more employees . . ." The federal Family Medical Leave Act, 29 U.S.C. § 2611, defines employer as "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees . . ." Since the defendants employ fewer than fifty employees, they are not subject to the federal or state family medical leave laws.
In Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 802 A.2d 731 (2002), the Connecticut Supreme Court addressed the question of whether an employer with fewer than three employees, although not subject to the Fair Employment Practices Act, General Statutes § 46a-51 et seq., is barred, on public policy grounds, from discharging an at-will employee. A similar question, in the context of state and federal medical leave statutes, is presented to this court by the defendants' motion for summary judgment on count five; thus, the Thibodeau court's reasoning is instructive. "Although the legislative history of the act is silent as to why the legislature chose to exempt small employers from the purview of the [Fair Employment Practices Act], the primary reason for the exemption cannot be doubted: the legislature did not wish to subject this state's smallest employers to the significant burdens, financial and otherwise, associated with the defense of employment discrimination claims. Indeed, this reason formed one of the primary bases for Congress' decision to exempt employers with fewer than fifteen employees from the analogous antidiscrimination provisions of the Title VII of the Civil Rights Act. Papa v. Katy Industries, Inc., 166 F.3d 937, 940 (7th Cir. 1999) ('The purpose [of the minimum employee threshold under Title VII] is not to encourage or condone discrimination . . . [Rather] [t]he purpose is to spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail.'); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (Congress sought to protect small employers from costs associated with litigating discrimination claims under Title VII by establishing minimum employee requirement); Miller v. Maxwell's International, Inc., 991 F.2d 583, 587 (9th Cir. 1993), cert. denied sub nom. Miller v. La Rosa, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994) (same). It also is likely that our state legislature, like Congress, was concerned with `the protection of intimate and personal CT Page 11927-fk relations existing in small businesses . . .' Tomka v. Seiler Corp., supra, 1314. In addition, we reasonably may presume that the legislature was motivated to exempt small employers in part because its fundamental objective was to eliminate discrimination on a larger scale; see Jennings v. Marralle, 8 Cal.4th 121, 134, 876 P.2d 1074, 32 Cal.Rptr.2d 275 (1994); and because of the difficulties inherent in detecting and policing discrimination on a small scale. Id., 133.
"Although one may agree or disagree that these reasons provide a convincing basis for exempting small employers from the act, we are not free to disregard the legislative policy determination upon which the exemption is founded. See, e.g., Skindzier v. Commissioner of Social Services, 258 Conn. 642, 661, 784 A.2d 323 (2001) ('[this] court is precluded from substituting its own ideas of what might be a wise [policy] in place of a clear expression of legislative will'). Our failure to recognize the public policy reflected in the exemption of small employers would expose them to liability for employment discrimination claims notwithstanding a clearly expressed legislative preference to the contrary. To disregard that policy decision would violate a fundamental principle underlying our recognition of public policy exceptions to the at-will employment doctrine, namely, that we may not `ignore [a] statement of public policy that is represented by a relevant statute.' Daley v. Aetna Life Casualty Co., supra, 249 Conn. 804; see also Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 480 ('[c]ertainly when there is a relevant state statute we should not ignore the statement of public policy that it represents')." Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 706-08, 802 A.2d 731 (2002).
Pursuant to the reasoning of the court in Thibodeau, the plaintiff cannot maintain a cause of action for wrongful discharge based upon the public policy embodied in state and federal family and medical leave laws. Accordingly, the defendants' motion for summary judgment is granted as to the fifth count of the complaint.
V
In the sixth count, the plaintiff alleges a defamation claim. The plaintiff has not addressed this claim in her memorandum in opposition to the defendant's motion for summary judgment. During oral argument, her counsel agreed with defendants' counsel that this claim is barred by the pertinent statute of limitation. The motion for summary judgment is granted as to the sixth count.
VI CT Page 11927-fl
For all of the above-stated reasons, the defendants' motion for summary judgment is denied with respect to counts one, two and three of the plaintiff's second amended complaint. The defendants' motion is granted with respect to the fifth and sixth counts of the plaintiff's second amended complaint.
THIM, J.