Opinion
CV116021301S
12-03-2015
Curtis Reddick v. Southern Connecticut State University
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#127)
Robin L. Wilson, J.
FACTS
The plaintiff, Curtis Reddick, commenced this action by service of process on the defendant, Southern Connecticut State University, on June 7, 2011. The plaintiff's complaint contains a single-count against the defendant claiming disability discrimination in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60 et seq. The plaintiff alleges the following facts in support of his claim. In January 2007, the plaintiff was hired by the defendant as a custodian. The plaintiff took a medical leave of absence from work in January 2009, due to chronic abdominal pain, and remained on leave until his return to work on February 19, 2009. Upon his return, the plaintiff was assigned more work than he had prior to his medical leave. In April 2009, the plaintiff was hospitalized due to his chronic abdominal pain. Following instructions from his physician, the plaintiff again took medical leave from work, which lasted from April 22 to April 28, 2009. When the plaintiff attempted to return to work on April 28, 2009, the defendant's supervisor sent him home due to a problem with his " paperwork." The next day, April 29, the plaintiff telephoned the defendant and again requested leave due to his chronic abdominal pain. The defendant granted his request. On May 1, 2009, the plaintiff returned to work. On May 14, 2009, the defendant fired the plaintiff. The defendant's stated reason for the plaintiff's termination was the plaintiff's failure to report to work on April 23, 24, 27, 28, 29 and 30, 2009, and that the plaintiff did not properly call in his absences. The plaintiff maintains that the defendant's offered excuse is a pretext for the defendant's discrimination against the plaintiff due to the plaintiff's disability--chronic abdominal pain. The plaintiff further alleges that the defendant violated the CFEPA in one or more of the following ways: (1) by interfering with the plaintiff's privilege of employment on the basis of the plaintiff's disability; (2) by discriminating against the plaintiff in a way that adversely affected the plaintiff's status as an employee; (3) by assigning unequal duties to the plaintiff; (4) by treating the plaintiff " adversely different" from similarly situated, nondisabled employees; (5) by using the plaintiff's medical absences for treatment and care as a motivating factor to fire the plaintiff; (6) by firing the plaintiff; (7) by discriminating against the plaintiff for being absent because of his disability; and (8) by retaliating against the plaintiff for requiring a reasonable accommodation. As a result of the defendant's violations of the CFEPA, the plaintiff has suffered and will continue to suffer injuries and losses.
Prior to commencing this action, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (commission) on October 16, 2009. On April 28, 2010, the plaintiff received a letter from the commission releasing jurisdiction over the action to the plaintiff. Thereafter, the plaintiff filed an action in federal district court, but the court declined to exercise supplemental jurisdiction over the plaintiff's state law claims on May 12, 2011. Following the district court's dismissal of the plaintiff's action, the plaintiff filed the present action in the Superior Court.
On June 1, 2015, the defendant filed a motion for summary judgment on the ground that the plaintiff has failed to present evidence supporting a claim for either disparate treatment or retaliation under the CFEPA. The defendant's motion is accompanied by a memorandum of law, and is supported by forty-six separate exhibits. On July 16, 2015, the plaintiff filed an objection with a memorandum of law to the defendant's motion for summary judgment, and included ten exhibits in support. On August 17, 2015, the defendant filed a reply memorandum in response to the plaintiff's objection and memorandum of law. Oral argument on the motion was heard at short calendar on August 24, 2015.
Exclusive of duplicates, the defendant's exhibits include the following: (1) a twenty-seven page excerpt of the plaintiff's certified deposition, taken on March 30, 2015; (2) the plaintiff's responses to the defendant's interrogatories, dated October 11, 2013; (3) a merit assessment review prepared by the commission, dated March 26, 2010; (4) a doctor's note prepared by the plaintiff's physician for the plaintiff's absence, dated January 20, 2009; (5) a fax request from the defendant to the plaintiff's physician regarding the plaintiff's medical certificate, dated February 12, 2009; (6) a medical certificate prepared by the plaintiff's physician, dated February 2, 2009; (7) an amended medical certificate prepared by the plaintiff's physician, dated February 2, 2009; (8) the defendant's policies and procedures, effective March 16, 2007; (9) the plaintiff's signed acknowledgment of his receipt of the defendant's policies and procedures, dated January 1, 2007; (10) an affidavit of Diane Mazza, the defendant's chief human resources officer, dated May 26, 2015; (11) a letter from the defendant to the plaintiff advising the plaintiff that he may be eligible for leave under the Family and Medical Leave Act, 29 U.S.C. § 2612 et seq. (FMLA) based on his absences from work, dated January 30, 2009; (12) the defendant's approval of the plaintiff's FMLA leave from January 1, 2009, to February 19, 2009, dated February 24, 2009; (13) through (16) the plaintiff's biweekly attendance and absence reports for the period from January 16 to January 29, 2009, dated January 29, 2009; from January 30 to February 12, 2009, dated February 12, 2009; from February 13, to February 26, 2009, dated February 26, 2009; and from February 27 to March 12, 2009, dated March 12, 2009, respectively; (17) a letter from the defendant to the plaintiff advising the plaintiff of an upcoming fact-finding meeting, dated March 12, 2009; (18) an attendance sheet for a March 16, 2009 factfinding meeting; (19) a letter from the defendant to the plaintiff advising the plaintiff of an upcoming investigatory interview, dated March 30, 2009; (20) an attendance sheet for an April 3, 2009 disciplinary hearing; (21) a letter from the defendant to the plaintiff summarizing the results of the disciplinary hearing and recounting FMLA policy and unauthorized leave instructions, dated April 23, 2009; (22) the plaintiff's biweekly attendance and absence report for the period from April 10 to April 23, 2009, dated April 23, 2009; (23) a letter from the defendant to the plaintiff indicating that the defendant may be eligible for FMLA leave, dated April 21, 2009; (24) the plaintiff's biweekly attendance and absence report for the period from April 24 to May 7, 2009, dated May 7, 2009; (25) a letter from the defendant to the plaintiff advising the plaintiff of an upcoming fact-finding meeting, dated April 30, 2009; (26) a letter from the defendant to the plaintiff advising the plaintiff of an upcoming fact-finding meeting, dated May 1, 2009; (27) a letter from the defendant to the plaintiff advising the plaintiff of a rescheduled upcoming fact-finding meeting, dated May 4, 2009; (28) an April 2009 medical certificate prepared by the plaintiff's physician, dated April 27, 2009; (29) an FMLA fitness for duty certification prepared by the plaintiff's physician, dated April 28, 2009; (30) an e-mail chain between the defendant's employees Francesca Poole, Maria Houser, and Amanda Pysh discussing the plaintiff's April 2009 absences, dated April 30 to May 1, 2009; (31) an e-mail from Bill Cohane, one of the plaintiff's supervisors, to Poole, Pysh and Cogswell, dated April 27, 2009; (32) an e-mail from Pysh to Poole, dated April 29, 2009; (33) an attendance sheet for a May 5, 2009 fact-finding hearing; (34) a letter from the defendant to the plaintiff advising the plaintiff of an upcoming disciplinary hearing, dated May 11, 2009; (35) a letter from the defendant to the plaintiff advising him of his termination, dated May 13, 2009; (36) a grievance filed with the defendant by the plaintiff regarding his dismissal, dated May 20, 2009; (37) Sprint phone records for the plaintiff's phone calls between April 26 and April 30, 2009; (38) an e-mail between the defendant and Bill Klutenaar, the plaintiff's union representative, dated October 14, 2009; (39) a letter from the defendant to Klutenaar requesting information regarding the plaintiff, dated October 26, 2009; (40) an e-mail from the defendant to the plaintiff's union representatives, dated November 19, 2009; (41) a blank authorization to release medical records form; (42) a letter from the defendant to the plaintiff offering the plaintiff re-employment, dated May 4, 2010, (43) a letter from the plaintiff's counsel to the defendant regarding the defendant's job offer, dated May 20, 2010; (44) a letter from the defendant to the plaintiff's counsel refusing modifications to the plaintiff's job offer, dated May 25, 2010; (45) a written memorandum denying the plaintiff's grievance, prepared by the plaintiff's union, dated July 19, 2010; and (46) a letter between members of the plaintiff's union that withdraws the plaintiff's grievance, dated October 28, 2011.
The plaintiff submitted 158 pages of exhibits, many of which are duplicates of those submitted by the defendant. The court will not re-list these duplicates. The plaintiff's exhibits include: (1) an affidavit prepared by the plaintiff's attorney, dated July 16, 2015; (2) a thirty-two page excerpt from the plaintiff's certified deposition, taken on March 30, 2015; (3) patient discharge instructions from the emergency room at Yale New Haven Hospital, dated April 21, 2010; (4) Sprint phone records for the plaintiff's calls between April 17 and April 25, 2009; (5) an affidavit from the plaintiff, dated July 13, 2015; (6) a doctor's note prepared by the plaintiff's physician for the plaintiff's absences from April 22 to April 28, 2009, dated May 11, 2009; (7) the defendant's interrogatory responses prepared by Diane Mazza, dated January 18, 2013; (8) notes from a meeting held by the defendant to discuss the plaintiff's termination, dated October 27, 2009; (9) an affidavit prepared by the plaintiff for the commission, dated October 16, 2009; and (10) a screenshot of the defendant's website indicating the defendant's relevant phone numbers, dated July 2, 2015.
The parties have filed a large volume of evidence outside of the pleadings in this case. The trial court has discretion in determining whether to consider documentary evidence submitted by the parties in support of or in opposition to a motion for summary judgment, as such a decision presents an evidentiary issue for the court. See Bruno v. Whipple 138 Conn.App. 496, 506, 54 A.3d 184 (2012). In the present case, neither party has objected to the admissibility of any of the evidence submitted. " [T]hus, 'any objection is deemed waived and all documents are admissible' within the court's discretion" for purposes of ruling on a motion for summary judgment. Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV-09-5028470-S(January 15, 2010, Wilson, J).
DISCUSSION
" [S]ummary 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." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" Summary judgment should be denied where the [evidence put forth by] the moving party do[es] not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320. " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " 'Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
I. Summary Judgment as Applied to Individual Claims Within a Single Count
The defendant moves for summary judgment as to the plaintiff's disparate treatment claim and retaliation claim. Count one of the plaintiff's complaint, which alleges disability discrimination in violation of General Statutes § 46a-60(a), sounds in two distinct violations of the CFEPA. Subparagraphs (a) through (g) of paragraph 26 allege a variety of facts relevant to a disparate treatment claim, while subparagraph (h) of paragraph 26 alleges a retaliation claim. Since both of the plaintiff's claims are contained within the same count of the complaint, the court must first address the propriety of rendering summary judgment on individual claims within the same count before reaching the merits of the parties' arguments.
In paragraph 26, subparagraph (h) of the plaintiff's complaint, the plaintiff alleges that the defendant violated the CFEPA " in that the defendant retaliated against the plaintiff for requiring a reasonable accommodation." Subparagraph (h) could be read simply as an allegation in support of the plaintiff's disparate treatment claim, as opposed to an attempt at bringing a stand-alone retaliation claim, but since the plaintiff has argued, in response to the defendant's motion, that he can state a prima facie case for retaliation in addition to his disparate treatment claim, this court will address the merits of that claim apart from the claim for disparate treatment.
" In Connecticut, [t]here is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment." (Internal quotation marks omitted.) Glidepath, LLC v. Lawrence Brunoli, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-6014624-S (December 21, 2012, Peck, J.). Despite the majority view on the issue, Practice Book § 17-51 provides, in the context of summary judgment, that " if it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim." " [S]ome courts have found that the language of Practice Book § 17-51 authorizes the entry of summary judgment on part of a claim within a single-count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim." (Internal quotation marks omitted.) Glidepath v. Lawrence Brunoli, supra, Superior Court Docket No. CV 10-6014624S. When confronted with circumstances similar to the present case this court, in Ferrigno v. Hamden Volunteer Fire Dept., Superior Court, judicial district of New Haven, Docket No. CV-10-6011263-S (May 2, 2012, Wilson, J.), has previously followed the minority view, which allows for summary judgment on individual claims contained within the same count of a complaint, provided that the individual claims are distinct and severable.
The touchstone under § 17-51 for allowing summary judgment to enter for a single claim within a broader count containing multiple claims is the severability of the subject claim from the remainder of the count. In Ferrigno, the court followed the minority rule and allowed summary judgment to enter on one claim contained within a count that alleged multiple claims. In so doing, the court adopted the reasoning of another Superior Court decision, and interpreted § 17-51 as " simply recogniz[ing] that some claims are really combinations of many claims, each of which, if pleaded separately, could afford the pleader a separate basis for relief. When such a combined claim is challenged by a motion for summary judgment, this rule merely permits the court to separate the claims from one another so that judgment can enter as to those as to which there is no genuine issue of material fact and only the remainder, which are still in dispute, can go to trial." (Internal quotation marks omitted.) Ferrigno v. Hamden Volunteer Fine Dept., supra, Superior Court, Docket No. CV-10-6011263-S, quoting Economy Petroleum Corp. v. Paulauskas, Superior Court, judicial district of Hartford, Docket No. CV-00-0822116-S (August 1, 2003, Sheldon, J.). See also Shelton Yacht & Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0075380-S (February 2, 2007, Stevens, J.) (acknowledging split in decisions and holding summary judgment appropriate in circumstances where subject cause of action severable from remaining claims in same count); Pelletier v. Sordoni/Skanska Construction Co., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-95-055184 (May 5, 2005, Alander, J.) , rev'd on other grounds, 286 Conn. 563, 945 A.2d 388 (2008) (holding § 17-51 as authorizing entry of judgment on single severable claim within larger count). This court's decision in Ferrigno, which is supported by the minority line of cases, is applicable here.
Count one of the complaint sounds in both disparate treatment and retaliation. While both claims are forms of discrimination, and the allegations contained elsewhere in the complaint may serve to bolster either claim, it does not follow that these two claims cannot be split into separate causes of action and disposed of separately. This is not a situation necessitating the denial of the defendant's motion because " the count contains multiple causes of action and all of them are not addressed as part of the judgment" or " an adjudication does not dispose of an entire cause of action." Shelton Yacht & Cabana Club, Inc. v. Voccola, supra, Superior Court, Docket No. CV-01-0075380-S . See also First American Title Ins. Co. v. 273 Water St., LLC, Superior Court, judicial district of Hartford, Docket No. CV-08-4041234-S (January 5, 2012, Peck, J.) (denying defendants' motion seeking " partial summary judgment on a single issue that is only part of, and does not dispose of, a cause of action" as improper). Here, both claims within count one of the plaintiff's complaint are distinct, and require proof of different elements to survive a motion for summary judgment. If a single-count contains two or more distinct claims, and one of the claims is ripe for summary judgment, substance should prevail over form, and the court should be permitted to dispose of the individual claim as if it was pleaded in a different count in the interests of the judicial efficiency that results from cleaning up the issues prior to trial. Thus, it is appropriate to analyze the merits of summary judgment as to each of the plaintiff's claims separately, despite the fact that both claims are contained within the same count.
II. The Plaintiff's Disparate Treatment Claim
The defendant moves for summary judgment on the ground that the plaintiff has failed to provide evidence to support his claim of discrimination under § 46a-60(a)(1). The defendant argues that, since the plaintiff's claim is one of disparate treatment, the plaintiff has failed to provide evidence to establish his required prima facie case, and, even if the plaintiff has met this burden, the defendant has presented a legitimate, nondiscriminatory reason for terminating the plaintiff, and the plaintiff cannot provide evidence that the defendant's reason is pretext. In response, the plaintiff counters that genuine issues of material fact exist as to whether he was disabled within the meaning of the CFEPA, that he was otherwise qualified to perform the essential functions of his job, with or without a reasonable accommodation, and that he suffered an adverse employment action due, either in whole or in part, to his disability, and therefore, the defendant is not entitled to judgment as a matter of law. In its reply memorandum, the defendant argues that the plaintiff has provided no evidence which creates a genuine issue of material fact that the plaintiff's termination was, either in whole or in part, due to his disability because the plaintiff never requested leave as a reasonable accommodation, nor has the plaintiff presented any evidence which suggests that the defendant acted with discriminatory animus, and therefore, the plaintiff's termination did not occur under circumstances giving rise to an inference of discrimination.
General Statutes § 46a-60(a)(1) provides, in relevant part, that " [i]t shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need . . . to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's . . . physical disability . . ."
The plaintiff's claim invokes the familiar analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). " The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green . . . and its progeny . . . We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both [the federal and the state frameworks] . . . Under this analysis, the employee must first make a prima facie case of discrimination . . . In order for the employee to first make a prima facie case of discrimination, 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." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, 316 Conn. 65, 73, 111 A.3d 453 (2015). Once an employee has put forth evidence establishing a prima facie case, " [t]he 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 [by the court] . . . 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." (Citations omitted; internal quotation marks omitted.) Id., 74.
" Unlike other areas of the law, [when] 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." Gordon v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 365472 (May 22, 1998, Levin, J.). " The burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
A. The Defendant's Arguments Regarding the Plaintiff's Prima Facie Case
For the purposes of its argument, the defendant does not contest that the plaintiff has met his burden on the first three elements of the plaintiff's prima facie case--that the plaintiff has offered evidence demonstrating that he was disabled, that he was capable of performing his duties as custodian with or without a reasonable accommodation, or that he suffered an adverse employment action. Instead, the defendant argues that the plaintiff has failed to provide evidence to satisfy the fourth prong of his prima facie case, which requires a showing of the defendant's discriminatory intent.
In his memorandum, the defendant characterizes its argument as not challenging the " first two prongs" of the plaintiff's prima facie case, and instead the third prong, in reliance on our Supreme Court's decision in
" A trial court must be cautious about granting summary judgment to an employer when . . . its intent is at issue . . . [W]ritings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, [and for that reason] affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." (Internal quotation marks omitted.) Rivera v. Norwalk Public Schools, Superior Court, judicial district of New Haven, Docket No. CV-11-6025724-S (Sept. 13, 2013, Mullins, J.). " It is well-settled that an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to . . . the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge." (Internal quotation marks omitted.) Leibowitz v. Cornell University, 584 F.3d 487, 502 (2d Cir. 2009). " [A]n employee cannot show intentional discrimination unless [the employee first shows] the employer knows of the disability." Nobitz v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-01-0455315-S (May 18, 2004, Devlin, J.) . " [T]he mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the [ McDonnell Douglas ] analysis." Zimmermann v. Associates First Capital Corp., 251 F.3d, 376, 381 (2d Cir. 2001); see also Craine v. Trinity College, 259 Conn. 625, 639, 791 A.2d 518 (2002) (" [t]he most typical method used by plaintiffs to establish the fourth prong of a prima facie case is to introduce evidence that the defendant later . . . hired . . . comparably qualified individuals not in a protected class of individuals").
The parties arguments regarding the evidence as it pertains to the defendant's discriminatory intent are numerous, but can be concisely stated as follows. The defendant argues that (1) the plaintiff has not put forth any evidence to indicate that anyone who worked for the defendant knew the plaintiff had a disability beyond the fact that the plaintiff had previously taken FMLA leave, (2) it is irrelevant, even if taken as true, that the plaintiff was assigned additional work after his return from FMLA leave in February because there is no evidence that the assignment of work was motivated by discriminatory intent, and (3) the plaintiff has not presented evidence that similarly situated, nondisabled employees who had five or more unauthorized absences were treated differently than he was, and therefore, the plaintiff has presented no evidence, other than his own opinion, that he was subject to dismissal because of disability discrimination. Further, the defendant argues that, rather than indicating the presence of discriminatory intent, the evidence before the court affirmatively demonstrates that, prior to his termination, submitted records and correspondence demonstrate that the plaintiff was warned regarding the proper call-in and paperwork procedures to follow when requesting medical leave from work, that the plaintiff did not follow the appropriate procedures when he took medical leave for a second time in April of 2009, and that the plaintiff's failure to follow these procedures was the reason he was fired.
In response, the plaintiff argues that he has met the fourth prong of his prima facie case because (1) the defendant's offered reason for firing the plaintiff was due to his unauthorized absences, which were caused by the plaintiff's disability; (2) the defendant had notice of the plaintiff's disability because the plaintiff had previously taken medical leave and the defendant was in possession of medical records, provided by the plaintiff's physician, prior to the plaintiff's absences in April 2009; and (3) a variety of circumstances reflected in the evidence, including the plaintiff's deposition testimony that the defendant increased his workload following his previous FMLA leave, the defendant's interrogatory responses indicating the plaintiff was replaced by a nondisabled individual, and call logs and deposition testimony which indicate the plaintiff did call his supervisor prior to his absences in April 2009, all give rise to an inference of discrimination. Although in this case an inference of discrimination does not arise simply by reason that the plaintiff was absent due to his disability and the reason the defendant fired him was related to his absences, the evidence before the court meets the required minimal showing of circumstances which give rise to an inference of the defendant's discriminatory intent.
The plaintiff relies on a Second Circuit decision, McMillan v. New York, 711 F.3d 120 (2d Cir. 2013), to support his argument that " [w]hen the parties agree that the employer complains of conduct that is the direct result of the employee's disability, the employee has established that the adverse employment action was because of his disability." The facts of McMillan, however, are distinguishable from the present case. In McMillan, both parties agreed that the adverse employment action taken by the defendant was because of the plaintiff's disability. In that case, after conducting negotiations regarding the plaintiff's undisputed disability, the defendant fired the plaintiff because it decided that it could not reasonably accommodate the consequences of the plaintiff's disability--the plaintiff's consistent tardiness. These facts led the McMillan court to conclude that " [w]hen the parties agree that the employer complains of conduct that is the direct result of the employee's disability . . . there is no need to evaluate whether the employer's adverse employment action made in response to that conduct is pretextual." Id., 129. Here, the parties do not agree that the plaintiff was terminated because of his absences or his disability. Instead, the defendant has claimed that it fired the plaintiff because his absences from work were unauthorized. Therefore, unlike the facts of McMillan, it is not undisputed that the plaintiff was fired due to his disability, and the plaintiff's argument that the reasoning of McMillan applies does not help him establish his prima facie case.
Nevertheless, the plaintiff has put forth sufficient evidence to meet the minimally required showing at the prima facie stage. A review of the record indicates ample evidence to support a finding that the defendant was at least aware of the plaintiff's disability prior to the plaintiff's absences in April 2009. It is undisputed that the plaintiff took a previous FMLA leave of absence due to " severe abdominal pain" between January and February of 2009. The defendant was in possession of medical records, provided by the plaintiff's physician to support the plaintiff's previous absence, that indicated the plaintiff suffered from " on-off severe abdominal rectal pain which began on " Nov. 1st, 2008, " and had an " unknown probable duration." When the plaintiff returned from his previous absence, his deposition indicates that he " asked for accommodation due to the fact of my medical condition . . . when I came back from [leave in February of 2009]." The plaintiff's deposition, as well as the defendant's arguments in its brief, indicate that this accommodation was granted by the defendant. Further, the plaintiff indicates in his affidavit that, prior to his absences in April 2009, he called his supervisor on April 20, 2009, " regarding a flare up of his abdominal pain, " and that after his hospitalization on April 21, 2009, his " mother-in law and [his] wife contacted [his supervisor] to inform her that [he] was in the hospital and would be out for the next few days." When a favorable reading of the evidence suggests an employer has previously granted medical leave and an accommodation to an employee due to a medical condition of unknown duration, and that employee has communicated to his supervisors that he continues to suffer from that same condition on at least one occasion, it can reasonably be inferred from that evidence that the employer has notice of the employee's medical condition. Therefore, far from failing to " put forth any proof or [make any allegations] that anyone knew or thought that [the plaintiff] had a disability, " as the defendant contends, it is reasonable for the court to conclude that, given the foregoing, the plaintiff has met the minimally required showing that the defendant had notice of the plaintiff's disability.
As the defendant points out, the plaintiff's physician did not fully complete each medical form in the record. For instance, the plaintiff's physician cleared the plaintiff to return to work on February 20, 2009, and left the " chronic conditions" box unchecked on the relevant paperwork, but this contradiction, if it is one, is precisely of the type to be resolved by the fact finder at trial, and not by the court at the summary judgment stage.
Similarly, it is reasonable for the court to conclude that the plaintiff has presented evidence suggesting circumstances that give rise to an inference of discrimination. As the defendant's interrogatory responses indicate, the plaintiff was replaced by an individual with no known disability. While this evidence alone can serve to meet the plaintiff's burden at the prima facie stage, other evidence in the record further supports the plaintiff's case. The plaintiff indicated in his deposition that, upon his return after his previous leave of absence, he was assigned additional work that his two nondisabled coworkers were not assigned. Specifically, the plaintiff was told by his supervisors, Cogswell and Wright, that he was to clean both the first floor and the second floor of the building to which he was assigned when he had previously been responsible for a single floor. Taking the plaintiff's claims as true, the fact that he was given more work than similarly situated employees in close proximity to his termination, and directly after the defendant arguably became aware of the plaintiff's disability, allows for at least a minimal inference of the defendant's discriminatory intent when it discharged the plaintiff. Accordingly, the plaintiff has met his burden of establishing a prima facie case under the McDonnell Douglas analysis, and the inquiry must progress to whether the defendant has proffered a legitimate, nondiscriminatory reason for firing the plaintiff, and whether the plaintiff has presented any evidence that the defendant's reason was a pretext.
The plaintiff's interrogatory number fourteen asked the defendant to " [i]dentify the person who filled plaintiff's job position after plaintiff was terminated and state whether the individual has a disability." The defendant responded that a " Ms. Stacey Miller filled the plaintiff's job effective March 27, 2011. The undersigned has no knowledge of whether Ms. Miller has a disability."
The defendant argues that even if the plaintiff was assigned unequal work after he took his first leave of absence, " this alleged change in job duties is irrelevant in the context of the plaintiff's [disparate treatment claim]" primarily because being assigned additional work does not constitute an " adverse employment action" sufficient to support a stand-alone disparate treatment claim. Even if its argument were true, the defendant is attacking the plaintiff's allegations as if the plaintiff were seeking to allege a separate discrimination claim on the basis of his being assigned additional work. Instead, the plaintiff contends that the adverse employment action he suffered was his termination, and that his allegations regarding his additional work, relative to other similarly situated employees, are relevant to support an inference of the defendant's discriminatory intent. Therefore, this evidence is relevant to the plaintiff's claim.
The evidence also indicates a disagreement between the defendant and the plaintiff over whether the plaintiff notified the defendant prior to his April 2009 absences, which further supports an inference of the defendant's discriminatory intent because it suggests an inconsistency between the facts and the defendant's stated reason for firing the plaintiff. This discrepancy is addressed further in part IIB of this memorandum.
B. The Defendant's Proffered Excuse and the Plaintiff's Evidence of Pretext
The defendant maintains that even if the plaintiff has met its burden to establish a prima facie case, it had a legitimate, nondiscriminatory reason for firing the plaintiff because " the plaintiff had been absent without calling in for work for more than five days" in April 2009, in violation of the defendant's policies. The defendant acknowledges that it fired the plaintiff due to, at least in part, the reports of the plaintiff's supervisor, and argues that, as a result, the plaintiff cannot prove pretext without showing the plaintiff's supervisor was motivated by discriminatory intent when the supervisor reported the plaintiff as a " no call no show." Further, the defendant argues that it relied in good faith on the statements of the plaintiff's supervisor when it terminated the plaintiff, and therefore, at the time the defendant made its decision, it was not motivated by discriminatory intent. The plaintiff has two arguments in response. The plaintiff again relies on McMillan v. New York, supra, 711 F.3d 120, for the proposition that he has established that the defendant's reason for firing the plaintiff was the plaintiff's absence related to his disability, and as such, there is no need for the court to continue its burden shifting inquiry into pretext. In the alternative, the plaintiff argues that the discrepancy between the reports of the defendant's supervisor and the plaintiff regarding whether the plaintiff notified his supervisor prior to his absences in April 2009, is sufficient to raise an inference of the supervisor's discriminatory intent, and that because the defendant cannot shield itself from liability under the " cat's paw theory" by simply arguing that it relied on the plaintiff's supervisor, the defendant is liable for any animus exhibited by the plaintiff's supervisor which contributed to the plaintiff's termination. As the court has already rejected the plaintiff's argument that the reasoning of McMillian applies here, the court will address the evidence in the record pertaining to pretext, and the parties' arguments regarding the cat's paw theory, in turn.
" The cat's paw theory . . . finds employer liability where another person 'co-opted' the independence of the [ultimate] decision maker to that person's discriminatory purpose and design."
" To dispel the inference of discrimination arising from the establishment of a prima facie case, [the defendant] is required to articulate--but not prove--a legitimate, nondiscriminatory reason for the discharge . . . The [defendant's] explanation must be clear and specific." (Citations omitted; internal quotation marks omitted.) Dister v. Continental Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988). Once the defendant has articulated a legitimate reason for the plaintiff's discharge, the plaintiff's burden is to present " evidence [that] must--at a minimum--create a genuine issue of fact as to [the defendant's] offered reasons or as to a discriminatory motive." Id. " [A] jury issue on the question of pretext may be created when an employer offers inconsistent and varying explanations for its decision to terminate the plaintiff." (Internal quotation marks omitted.) Colby v. Pye & Hogan LLC, 602 F.Supp.2d 365, 372 (D.Conn. 2009).
The defendant has articulated a legitimate, nondiscriminatory reason for firing the plaintiff. The defendant argues that the plaintiff was fired because he failed to report to work for at least five days in April 2009, and that he failed to notify his supervisors prior to his absences. Looking at the defendant's proffered reason on its face and without a credibility assessment, as the court must, the defendant's excuse is clear and specific enough to rebut the prima facie case set forth by the plaintiff because it offers a legitimate, independent basis as to why the plaintiff was fired. Nevertheless, the evidence put forth by the plaintiff has established a genuine issue of material fact as to whether the defendant's excuse is pretext for disability discrimination.
The defendant's termination letter to the plaintiff informed the plaintiff that " [he was] being separated from State Service for just cause as evidenced by [the plaintiff's] unauthorized leave without pay for five or more working days in violation of [the applicable regulations] . . . Specifically, on April 23, 24, 27, 28, 29, and 30, 2009 [the plaintiff] did not report to work as scheduled and [the plaintiff] did not call in [his] absences from work as required." The evidence in the record contradicts the defendant, thereby creating a genuine issue of material fact with regard to pretext.
First, with regard to the plaintiff's absences for the first four days--April 23, 24, 27, and 28--the evidence suggests that the plaintiff did notify the defendant prior to missing work. The plaintiff alleges in his affidavit that after his emergency room visit on April 21, 2009, his family contacted his supervisor to inform her that the plaintiff had been hospitalized, was again suffering from abdominal pain, and would be absent from work for the next several days. This claim is supported by the plaintiff's phone records, which indicate that the plaintiff made a telephone call to his supervisor on April 21. That same day, the defendant sent a letter to the plaintiff, which indicated that the plaintiff could be eligible for FMLA leave to cover his absences if, prior to May 15, he had his physician return the appropriate paperwork that had been included with the letter. Not only does it appear that the plaintiff's physician returned the attached paperwork, the evidence suggests that he did so well before the deadline set by the defendant. The plaintiff's physician also provided an out of work note, indicating that the plaintiff was suffering from an onset of his medical condition, which corroborates the plaintiff's statements to the defendant regarding why he was absent from work between April 22 and April 28, 2009.
Discharge paperwork from the emergency room at Yale New Haven Hospital indicates that the plaintiff was seen for abdominal pain, and was discharged on April 21, which suggests the plaintiff had an episode of his medical condition prior to the disputed absences.
The plaintiff's physician dated the paperwork April 28, and the fax receipt text at the top of the paperwork suggests that the paperwork was received by the defendant on April 29, 2009. Again, to the extent the defendant argues that this paperwork is incomplete, that argument is one better suited for the jury at trial rather than the court at summary judgment.
Further, a review of the plaintiff's leave record for April 27 and 28 reveals discrepancies regarding the defendant's understanding of the plaintiff's absences. On April 27, the plaintiff's leave record indicates the defendant marked the plaintiff both " S" for " sick" and " NCNS" for " no call no show." On April 28, there is a similar contradiction--the defendant marked the plaintiff both " PL" for " personal leave" and " NCNS" for " no call no show." Thus, a favorable reading of the evidence suggests that, despite the fact the defendant claims the plaintiff was a no call, no show, on April 23, 24, 27, and 28, 2009, the plaintiff contacted the defendant on several, if not all, of the days in question regarding his intended absences, and the defendant's own records on the issue are conflicting.
That the defendant's own policies appear to suggest a preference that an employee's time sheet is not to be altered once it is prepared only emphasizes the need for a factual determination as to why someone may have altered the plaintiff's time sheet with conflicting reasons for his absences. The defendant's handbook reads: " [A]n employee's time sheet cannot be changed once the form has been submitted unless authorized by Facilities Operations management or the Human Resources Department."
The evidence further suggests that the plaintiff notified the defendant prior to missing work on April 29 and 30. The plaintiff indicates that on April 29, he called out from work, and on April 30, he was sent home by his supervisor due to incomplete paperwork. Not only do the phone records substantiate that the plaintiff called his supervisor on April 29, meeting notes from a meeting between the defendant's employees and the plaintiff's supervisor indicate that the plaintiff did call and speak with his supervisor on April 29. There is evidence of additional phone calls on April 30. An e-mail chain between the defendant's employees indicates that, around 8:51 a.m. " [the plaintiff] called and left [the supervisor] a voice mail this morning" and that the employee " spoke with [the plaintiff] at 12:00 noon" on April 30. Here, too, the phone records support that the plaintiff called. While the plaintiff's supervisor denies that the plaintiff showed up with the intention of working on April 30 or that she sent the plaintiff home, her statements are belied by the defendant's meeting notes, which read " 4/30 into 5/1 shift [the plaintiff's supervisor] did send [the plaintiff] home." Further, as with the plaintiff's leave record for April 27 and 28, the defendant marked both April 29 and 30 with the conflicting acknowledgments personal leave and no call, no show. As with the prior dates, despite the defendant's claims that the plaintiff was a no call, no show on April 29 and 30, a favorable reading of the evidence suggests the plaintiff did contact the defendant on both days, and that the plaintiff may have even shown up for work on April 30. Given the contradictions between the evidence and the defendant's stated reason for firing the plaintiff, the plaintiff has presented enough evidence to raise a genuine issue of fact as to whether the defendant's excuse is pretext.
The disparity between the facts as the defendant relates them and the facts as the evidence presents them itself allows for an inference of discrimination. Thus, the discrepancies over whether the plaintiff did call out from work are not " a red herring" as the defendant suggests in its memorandum. Further, while the defendant makes much of the fact that the plaintiff did not provide much of this evidence at his pretermination meeting, that fact is more relevant for trial than at the summary judgment stage. The court's role is to determine whether the evidence presented contradicts with the defendant's proffered reason for terminating the plaintiff, and here, that is the case.
Despite these contradictions between the record and the defendant's stated reason for firing the plaintiff, however, the defendant argues that its good faith reliance on the reports of the plaintiff's supervisor, coupled with the lack of evidence presented by the plaintiff of the supervisor's discriminatory intent, should act as a shield from the defendant's liability. This argument is not persuasive. The CFEPA " imposes liability . . . upon Employers who violate the Act's provisions . . . [Employers include] any agent of such a person. Like all of [CFEPA's] provisions, the phrase [agent] should be accorded a liberal construction . . . [and] [u]nder this liberal construction, immediate supervisors are [e]mployers when delegated the employer's traditional rights, such as hiring and firing." (Citations omitted; internal quotation marks omitted.) Harvey v. Blake, 913 F.2d 226, 227 (1990). Under the cat's paw theory, an employer can be held liable when a supervisor performs an act, which is motivated by discriminatory intent and intended to cause an adverse employment action against an employee, and that act is a proximate cause of the employer's action against the employee. See Staub v. Proctor Hospital, 562 U.S. 411, 422, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). See also United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn.App. 212, 235, 804 A.2d 1033 (" companies may be held liable for discrimination even where the decision-making official did not intentionally discriminate if the information used by that official in deciding to terminate a worker's employment was filtered through another employee who had a discriminatory motive"), cert. denied, 262 Conn. 920, 812 A.2d 863 (2002).
The termination letter, sent by the defendant to the plaintiff, suggests that the defendant based its decision to fire the plaintiff, at least in part, on the statements of the plaintiff's supervisor. This reliance neither shields the defendant from liability nor requires a showing of the defendant's bad faith by the plaintiff. " [The defendant's] view would have the improbable consequence that if an employer isolates a personnel official from an employee's supervisors, [and] vests the decision to take adverse employment actions in that official . . . then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action." (Emphasis omitted.) Staub v. Proctor Hospital, supra, 562 U.S. 420. There is no need for the plaintiff to show that the defendant relied in bad faith on the plaintiff's supervisor prior to firing the plaintiff. What is required is a showing by the plaintiff that raises an inference of discrimination on the part of the supervisor, and a showing that the defendant relied, at least in part, on the supervisor's opinions in firing the plaintiff. As discussed in the foregoing paragraphs, there is evidence in the record that contradicts the assertions made by the plaintiff's supervisor regarding the plaintiff's purported no call, no show absences, and the fact that there is a contradiction raises an inference of the supervisor's discrimination. This inference, if proven at trial, would allow for a finding that the defendant subjected the plaintiff to disparate treatment in violation of the CFEPA. Therefore, there is ample evidence for the court to conclude that there is a genuine issue of material fact as to whether the plaintiff's supervisor acted with discriminatory animus in participating in the process which terminated the plaintiff's employment.
The defendant's letter to the plaintiff reads: " On May 5, 2009 during a fact finding meeting we asked you why you did not call in your absences from April 23 to 30, 2009 and you said 'I told you I called.' You could not provide any evidence you called and your supervisor testified you did not call."
III. The Defendant's Arguments Regarding the Plaintiff's Retaliation Claim
The defendant next argues that the plaintiff cannot make a claim for retaliation under § 46a-60(a)(4) on the grounds that the plaintiff did not engage in a protected activity when he requested a reasonable accommodation prior to being fired, and even if the plaintiff did engage in a protected activity, he cannot show that his protected activity was the " but for" cause of his termination. The plaintiff responds that retaliation for requesting a reasonable accommodation does support a cause of action under § 46a-60(a)(1) (although the authorities the plaintiff relies upon address § 46a-60(a)(4)), that he has provided evidence establishing a prima facie case of retaliation, and the appropriate standard to evaluate this cause of action remains the " motivating factor standard." In its reply memorandum, the defendant points out that the plaintiff does not address the defendant's arguments with regards to § 46a-60(a)(4), and, therefore, the defendant suggests that the court need not discuss the appropriate standard used to evaluate retaliation claims under § 46a-60(a)(4). The court agrees with the plaintiff that a request for a reasonable accommodation falls within the scope of a protected activity under § 46a-60(a)(4), and that the evidence in the record allows the plaintiff to withstand summary judgment regardless of whether the evidence is evaluated under either the " but for" or the " motivating factor" standard.
General Statutes § 46a-60(a)(4) prohibits, in relevant part, " any person, employer, labor organization or employment agency [from] discharg[ing], expel[ling], or otherwise discriminat[ing] against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under [General Statutes] section 46a-82, 46a-83 or 46a-84 [involving the discriminatory practice complaint procedure] . . ." A retaliation claim under § 46a-60(a)(4) is separate from a disparate treatment claim under § 46a-60(a)(1), although, as with disparate treatment claims, " [t]he McDonnell Douglas burden shifting analysis [also] applies to claims of retaliation under . . . the CFEPA." Worster v. Carlson Wagon Lit Travel, Inc., 353 F.Supp.2d 257, 270 (D.Conn. 2005). " To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) [that the defendant took] adverse employment action against him; and (4) a causal connection between the protected activity and the adverse employment action." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009). Despite the fact that our Supreme Court " has previously confirmed our legislature's intention to make the [CEFPA] coextensive with the federal [fair employment legislation]"; (internal quotation marks omitted) Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982); and " previously has determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws"; Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 407, 944 A.2d 925 (2008); several recent decisions from the Superior Court that have addressed the scope of protected activity under § 46a-60(a)(4) have broken with federal precedent regarding whether a request for a reasonable accommodation can sustain a claim for retaliation. See Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-12-6014260-S (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887); Setkoski v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-10-6012794 (May 10, 2012, Domnarski, J.) (54 Conn. L. Rptr. 67); Dwyer v. Waterfront Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. CV-12-6032894-S (May 24, 2013, Fischer, B., J.) (56 Conn. L. Rptr. 232).
A. Whether a Request for a Reasonable Accommodation is Protected Activity
A split in authority exists between the decisions from the Superior Court and the federal circuits on what constitutes protected activity in the context of a retaliation claim for disability discrimination. While no appellate authority has weighed in on the issue, a number of Superior Court decisions have held that the scope of protected activity under § 46a-60 (a)(4) is narrower than at the federal level, by excluding an employee's request for a reasonable accommodation from the scope of protected activity under the statute. " [P]rotected activity [means] an action taken to protect or oppose statutorily prohibited discrimination. These actions can include the filing of formal charges of discrimination, as well as, informal protests of discriminatory employment practices, including complaints to management, writing critical letters to customers, protecting against discrimination by industry and expressing support of co-workers who have filed formal charges . . . The objective is to forbid employers from retaliating against employees because of employees' opposition to unlawful employment practices . . . The complaint, therefore, fails to allege that the [defendant] retaliated against the plaintiff." (Citation omitted; internal quotation marks omitted.) Setkoski v. University of Connecticut Health Center, supra, 54 Conn. L. Rptr. 70. This interpretation led the Setkoski court to conclude that " [t]aking leave [to resolve a serious medical condition] was not an opposition to an unlawful employment practice and is not a protected activity." Id., 70. In Sheehy v. Big Y Foods, Inc., supra, 54 Conn. L. Rptr. 889 the court cited the reasoning of Setkoski, and noted further that " § 46a-60(a)(4) is precise and specific with respect to what types of acts are 'protected activities' for purposes of alleging retaliation." After conducting a statutory analysis, the Sheehy court concluded that " [t]he statute before us has no ambiguity that we could elect to construe either broadly or narrowly, " and held that requesting a reasonable accommodation was not a protected activity for purposes of § 46a-60(a)(4). (Internal quotation marks omitted.) Id., 889. Accord Dwyer v. Waterfront Enterprises, Inc., supra, 56 Conn. L. Rptr. 239 (holding request for a reasonable accommodation not protected activity to sustain retaliation claim).
The holdings of Setkoski, Sheehy, and Dwyer stand in sharp contrast to federal precedent for retaliation claims based on a request for a reasonable accommodation under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 et seq. " [I]t is well established that seeking a reasonable accommodation for a disability constitutes protected activity . . . within the meaning of the ADA . . ." (Citation omitted.) Rieger v. Orlor, Inc., 427 F.Supp.2d 105, 120 (D.Conn. 2006). The Equal Employment Opportunities Commission (EEOC), the agency responsible for investigating claims of discrimination at the federal level, interprets that " [a] request for reasonable accommodation of a disability constitutes protected activity under Section 503 of the ADA. Although a person making such a request might not literally 'oppose' discrimination or 'participate' in the administrative or judicial complaint process, s/he is protected against retaliation for making the request." Equal Employment Opportunities Commission, Compliance Manual § 8-II(B)(2) (1998). Notably, decisions from each federal circuit have answered in the affirmative when faced with whether a request for a reasonable accommodation is a protected activity under the ADA.
See, e.g.,
Despite the weight of authority which interprets the federal counterpart to CFEPA as permitting a plaintiff to base a retaliation claim on the basis of a request for a reasonable accommodation, the most recent decision from the Superior Court to address this issue continued to follow the reasoning of the Superior Court decisions in Setkotski and Sheehy . In Dwyer, the court concluded that the " reasoning of the [Superior Court decisions] is more persuasive than that of the circuit courts." Dwyer v. Waterfront Enterprises, Inc., supra, 56 Conn. L. Rptr. 239. The gist of the court's conclusion in Dwyer was that, given that the Connecticut General Assembly enumerated specific examples of protected activities within the text of § 46a-60(a)(4), the statute " cannot reasonably be construed as prohibiting an adverse action against an employee who seeks a reasonable accommodation" when that activity is not listed as a protected activity. Id. This court, however, is not persuaded that the CFEPA should be interpreted differently from its federal counterpart.
Consider that the retaliation provisions of the CFEPA and ADA read nearly identically, and that despite the fact that the text of the ADA does not expressly include a request for a reasonable accommodation, the agency charged with the enforcement of the provisions of the ADA, as well as federal decisions spanning the circuits, have come to the same resounding conclusion--a request for a reasonable accommodation is a protected activity. Our General Assembly " modeled [the CFEPA] on its federal counterpart . . . and it has sought to keep our state law consistent with federal law in this area." (Citation omitted.) Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009). See also Frank's Supermarket v. Michaud, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-95-0549356-S (April 26, 1996, Silbert, J.) (CFEPA intended to be coextensive with federal counterpart). " Accordingly, in matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance." Ware v. State, supra, 188 Conn.App. 82. While these propositions do not change the fact that " it is axiomatic that decisions of [federal courts] are not binding on Connecticut courts tasked with interpreting our General Statutes"; Vollemans v. Wallingford, 103 Conn.App. 188, 199, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008); the interpretations of CFEPA should endeavor to be consistent with its purpose of providing, at a minimum, the same relief afforded by federal antidiscrimination statutes. See generally Ware v. State, supra, 118 Conn.App. 82.
Compare the text of the ADA: " No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act"; 42 U.S.C. § 12203(a); with the text of CFEPA: " It shall be a discriminatory practice in violation of this section . . . [f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under General Statutes § 46a-82, 46a-83 or 46a-84 . . ." General Statutes § 46a-60(a)(4).
An interpretation of CFEPA that does not consider a request for a reasonable accommodation to be a protected activity would be inconsistent with the broad interpretation that our courts have afforded the CFEPA in other contexts. " Our fair employment practices statutes were enacted to eliminate discrimination in employment. They are remedial and receive a liberal construction." Vollemans v. Wallingford, supra, 103 Conn.App. 219. The Appellate Court in Vollemans relied on the remedial nature of the CFEPA when it refused to apply a more restrictive interpretation of Title VII by the United States Supreme Court, which would have reduced the time period for a plaintiff to file an employment discrimination claim. Similarly, the Superior Court in Dwyer applied the reasoning of Vollemans to reject the adoption of the more stringent " but for" standard to CFEPA claims that had been applied by federal courts to the interpretation of the federal counterparts to the CFEPA. See Dwyer v. Waterfront Enterprises, Inc., supra, 56 Conn. L. Rptr. 237.
The reasoning in
Given the foregoing, it can be said that two principles control the court's interpretation of the CFEPA. First, the legislature intended for the statute to be interpreted in line with its federal counterparts, and second, that in the rare case where the interpretation of the CFEPA differs from that of the federal antidiscrimination statutes, it is because the CFEPA offers greater, not less, remedial relief for the plaintiff. Under these principles, the restricted interpretation afforded the scope of protected activity for the purpose of a retaliation claim advanced under Setkosky, Sheehy, and Dwyer is unworkable, and it is reasonable for the court to conclude, in line with federal precedent, that a request for a reasonable accommodation is a protected activity under § 46a-60(a)(4).
B. The Evidence Supporting the Plaintiff's Retaliation Claim
The evidence that has been set forth in addressing the parties' argument regarding the plaintiff's disparate treatment claim is much the same and applies with equal force to the plaintiff's retaliation claim. There is a genuine issue of material fact as to why the plaintiff was fired by the defendant given the discrepancies between the defendant's proffered excuse that the plaintiff was a no call, no show, for work in late April 2009, and the evidence in the record which indicates that the plaintiff did contact his supervisor regarding his medical issues that allegedly kept him from going to work. Given these discrepancies, and the fact that a request for a reasonable accommodation is a protected activity for the purposes of making a retaliation claim under CFEPA, a genuine issue of material fact also exists as to whether the plaintiff was making a request for a reasonable accommodation when he spoke with the defendant prior to the plaintiff's absences in April, and whether the defendant fired the plaintiff, in whole or in part, due to this request.
CONCLUSION
Accordingly, the defendant's motion for summary judgment as to the plaintiff's disability discrimination claim based on disparate treatment, and as to the plaintiff's disability discrimination claim based on retaliation is denied.
Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 426, 944 A.2d 925 (2008), which described the plaintiff's prima facie case in a McDonnell Douglas analysis as consisting of three prongs. In Curry, our Supreme Court merely condensed the third and fourth prongs of the McDonnell Douglas analysis, thereby combining the adverse action and discriminatory intent elements of the prima facie case. As our Supreme Court more recently indicated in Feliciano v. Autozone, supra, 316 Conn. 73, the plaintiff's prima facie case still requires distinct proof towards four elements, and since the defendant does not dispute that the plaintiff has shown that he suffered an adverse employment action, the defendant's challenge is more accurately characterized as one towards the fourth prong--discriminatory intent--of the plaintiff's prima facie case.
Andoh v. Connecticut Commission on Human Rights & Opportunities, Superior Court, judicial district of New Britain, Docket No. CV-115015410-S (July 26, 2012, Cohn, J.). In other words, the discharged employee seeks to hold his employer liable for the animus of a supervisor who, while not charged with making the ultimate employment decision, was relied upon by the ultimate decision maker in discharging the employee. See Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011).
Hoppe v. Lewis University, 692 F.3d 833, 842 (7th Cir. 2012) (" [t]here is no dispute that [the plaintiff] engaged in statutorily protected activity by filing her charges of discrimination and requesting a reasonable accommodation for her disability"); Tabatchnik v. Continental Airlines, 262 Fed.Appx. 674, 676 (5th Cir. 2008) (" [i]t is undisputed that making a request for a reasonable accommodation under the ADA may constitute engaging in a protected activity"); Coons v. Secretary of the United States Dept. of the Treasury, 383 F.3d 879, 887 (9th Cir. 2004) (" [the plaintiff] was engaged in a protected activity when he requested that [the defendant] make reasonable accommodations for his alleged disability"); Williams v. Philadelphia Housing Authority Police Dept., 380 F.3d 751, 759 n.2 (3d Cir. 2004) (" [t]he right to request an accommodation in good faith is no less a guarantee under the ADA than the right to file a complaint with the EEOC" [internal quotation marks omitted.]); Heisler v. Metropolitan Council, 339 F.3d 622, 630 n.5 (8th Cir. 2003) (" ADA prohibits an employer from retaliating against an employee who seeks an accommodation"); Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003) (" [w]e now hold that requesting an accommodation is protected activity"); Weixel v. Board of Education of New York, 287 F.3d 138, 148 (2d Cir. 2002) (" plaintiff's do allege that they were seeking reasonable accommodation of [the plaintiff's] disability--which constitutes protected activity under . . . ADA"); Nyanjom v. Hawker Beechcraft Corp., United States District Court, Docket No. 12-1461-JAR, (D. Kan. May 26, 2015) (" request for reasonable accommodation is protected activity under the ADA"); Mercer v. Drohan Management Group, Inc., United States District Court, Docket No. 1:10CV 1212, (E.D. Va. November 28, 2011) (" [u]nder certain situations, Plaintiffs' request for reasonable accommodation is a protected activity capable of grounding an ADA retaliation claim"); Cole v. Harman Corp., United States District Court, Docket No. 06-13688, (E.D. Mich. November 27, 2007) (" good-faith request for a reasonable accommodation under the ADA is a protected activity").
Dwyer appears to be internally inconsistent. On the one hand, Dwyer rejected the application of a narrower standard to the CFEPA in the interests of a broad interpretation of the statute to effect its remedial purpose, on the other, Dwyer restricted the scope of the CFEPA compared with the federal interpretation of its counterparts, as discussed in the preceding paragraphs. Compare Dwyer v. Waterfront Enterprises, Inc., supra, 56 Conn. L. Rptr. 237 with Dwyer v. Waterfront Enterprises, Inc., supra, 56 Conn. L. Rptr. 239.