Opinion
HHDCV146050384
01-19-2016
Kim Thomson v. State of Connecticut Department of Social Services
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion for summary judgment filed by the defendant, State of Connecticut, Department of Social Services (DSS). DSS claims that based on the undisputed material facts, it is entitled to judgment as a matter of law because the plaintiff, Kim Thomson, has failed to state a valid claim of disability discrimination or failure to accommodate under General Statutes § 46a-60(a)(1) (Fair Employment Practices Act or FEPA). The plaintiff objects, arguing that genuine issues of material fact exist.
" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citations omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). " 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.) Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013). " [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557-58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
" On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).
The plaintiff was employed by the defendant from 1987 to February 2013, handling clerical duties in the information technology (IT) department. The plaintiff has suffered from chronic and severe asthma her entire life and is unable to work during flare-ups. Her acute symptoms include stiffness, headaches, sweats, and fatigue which require that she take medications and rest to recover. She has taken full advantage of leave pursuant to the Family Medical Leave Act (FMLA) during the course of her employment and was approved for federal FMLA leave on at least fourteen occasions over the years of 2004, 2005, 2008, 2009, 2011 and some portion of 2012. The plaintiff was also approved for state FMLA leave from March 8, 2012 through May 29, 2012, for issues unrelated to her asthma condition. The plaintiff's request for advance sick time, whereby she received paid sick leave although she had not actually accrued that time, was also approved. By October 2012, however, the plaintiff was no longer eligible for FMLA because she failed to accumulate the requisite number of hours (1250) to maintain her eligibility. As a result, Louis Pozella, her supervisor, and Kelly Geary, from human resources, met with her to discuss how they could accommodate her given her chronic asthma. Geary and Pozella advised her that she could use sick leave, personal leave, governor's leave, and unpaid leave while she worked to regain eligibility for FMLA. The plaintiff was satisfied with this arrangement.
On January 30, 2013, the plaintiff delivered a medical certificate to Geary which documented her need for leave for approximately four days per month as well as a donation of leave time form. On February 6, 2013, the plaintiff left a note for Geary stating that she needed a leave of absence for asthma and expected to be out for over thirty days. She also left with Geary short-term disability forms which indicated her doctor's expectation that the plaintiff would improve in one or two months, and she would be out from February 7, 2013, without any definitive date to return to work. The note left contact information including the plaintiff's cell phone, with directions, in bold type font, that any correspondence for the plaintiff should be sent to her home address, specifically 652 Windsor Ave., Windsor, Connecticut.
In mid to late January 2013, there was a transition from Geary to Lisa Owens as the human resources officer. On January 31, 2013, Geary wrote a memorandum to Owens stating that the plaintiff has had federal FMLA intermittent leave for years and advised Owens to determine whether the plaintiff has yet accumulated the requisite 1250 hours. Subsequently, Owens determined that the plaintiff still did not have sufficient hours for FMLA eligibility and thus sent the plaintiff a letter on February 13, 2013, advising her that she has attempted to call the plaintiff, warning the plaintiff about the denial of her request for leave, that she required appropriate medical certification of her need for leave, that she needed to communicate daily with her supervisor and that if she did not comply with these requirements, she would be deemed resigned not in good standing. The plaintiff was subsequently terminated after the defendant's finding that she had not complied with these requirements and thus taken an unauthorized leave of absence.
The plaintiff has alleged that the defendant has discriminated against her based on her disability and the defendant's failure to reasonably accommodate her disability, pursuant to General Statutes § 46a-60(a)(1). Its provisions read, in relevant part: " It shall be a discriminatory practice in violation of this section: . . . For an employer, by the employer or the employer's 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 such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability . . ."
Our Supreme Court has stated that " [t]he legislative history of the [fair employment practices] act indicates that the statute was intended to provide strong protections for those with disabilities"; Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 410-11, 944 A.2d 925 (2008); and that a " thorough review of the legislative history reveals a consistent intent to increase protections for individuals with disabilities." Id., 412. Because " the intent of the legislature [was] to stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability and [intellectual disability]), we must not interpret the statute in a way that would thwart this purpose." Id.
" Our Supreme Court 'has determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws . . . While certain elements of the Fair Employment Practices Act and the ADA differ, '[c]laims for violations of the [Fair Employment Practices Act] are analyzed under the same standards as claims for violations of the ADA . . . [D]iscrimination on [the] basis of [a] disability under [the] ADA includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . 'Under the ADA, a qualified individual with a disability is one who is capable of performing the essential functions of the desired job with or without reasonable accommodation.' In Curry, the court concluded that the legislative intent with regard to the Fair Employment Practices Act requires 'employers to make a reasonable accommodation for an employee's disability, ' despite no such language in the statute's text." (Citation omitted; footnote omitted.) Langello v. West Haven Board of Education, 142 Conn.App. 248, 259-60, 65 A.3d 1 (2013).
" 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) he is disabled within the meaning of the [statute], (2) he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiff's] disability, did not reasonably accommodate it." (Internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415.
" Once a disabled individual has suggested to his employer a reasonable accommodation, federal law requires . . . that the employer and the employee engage in an 'informal, interactive process with the qualified individual with a disability in need of the accommodation . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.' . . . In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion." (Citation omitted.) Id., 416. At the same time, " an employee may not rely on a company's failure to engage in an interactive process if he cannot also make a prima facie showing that a reasonable accommodation existed at the time of the adverse employment action." Graves v. Finch Pruyn & Co, 353 Fed.Appx. 558, 561 (2d Cir. 2009).
" 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." Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415-16.
For purposes of summary judgment, the defendant does not dispute that the plaintiff's severe asthmatic condition is a disability. The defendant, however, vigorously disputes that the plaintiff has established a prima facie case of disability discrimination, asserting that the plaintiff has not produced evidence demonstrating that she was able to perform her job with or without reasonable accommodation nor has she shown that the defendant did not reasonably accommodate the plaintiff. This court agrees.
The plaintiff does not dispute the defendant's characterization of her work responsibilities, specifically, that as a clerical employee, she is responsible for filing, faxing, covering phones, archiving records, etc. Moreover, she does not directly dispute the defendant's assertion that given her responsibilities, attendance was an essential requirement of her job. What is in dispute is the legal significance of her request for leave in February 2013.
The parties do not dispute that a leave of absence for a chronic condition may be an appropriate and reasonable accommodation. Indeed, the plaintiff concedes that the defendant has offered her since 2004 through 2012, the ability to take leaves of absence through FMLA, sick leave, personal leave, governor's leave, unpaid leave, and even " advance sick time" while she attempted to regain the minimum hours required to be eligible for FMLA leave. The plaintiff also does not dispute that from February 1, 2012 through February 7, 2013, the defendant granted the plaintiff fifty-one days of paid leave and forty-seven days of unpaid leave, through furloughs, FMLA, and authorized leave without pay. Indeed, the plaintiff argues that because the defendant has authorized such generous leave in the past, it is unable to argue that a leave of absence can result in undue hardship for the defendant.
As the Curry court has held, however, the defendant's burden of proving undue hardship is not triggered until after the plaintiff establishes her prima facie case. Id., 416. Moreover, the willingness of the defendant to tolerate as much as ninety-eight days of the plaintiff's absence, or nearly 40% of all working days in, for example, the year 2012, does not vitiate its claim that the plaintiff cannot establish that she can perform the essential functions of her job. Indeed, in Walton v. Mental Health Ass'n of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999), which was cited by the plaintiff, the court was unpersuaded that a defendant's past grants of unpaid leave was evidence that such leave was a reasonable accommodation. Finding persuasive the eleventh circuit's decision in Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522 (11th Cir. 1997), the Walton court noted that leaves of absence can exceed the requirement of what is reasonable and in any event, does not give a plaintiff a cause of action under the ADA. In fact, the court noted that " [a] blanket requirement that an employer allow such leave is beyond the scope of the ADA when the absent employee simply will not be performing the essential functions of her position." Id.
" To establish a successful ADA claim, a plaintiff still must be able to perform the essential functions of her job, albeit with accommodation, and numerous federal courts have recognized that attendance at work is a necessary job function . . . An employee who is unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones." (Internal quotation marks omitted.) Ezikovich v. Commission on Human Rights & Opportunities, 57 Conn.App. 767, 775, n.5, 750 A.2d 494, cert. denied, 253 Conn. 925, 754 A.2d 796 (2000). " It is not reasonable to require a defendant to accommodate a plaintiff where she is 'consistently unable to satisfy so basic a criterion' as appearing for work." Conge v. Sikorsky Aircraft Corp., United States District Court, Docket No. 3:05CV1650 (PCD), (D.Conn. December 11, 2007).
" The plaintiff bears the burdens of both production and persuasion as to the existence of some accommodation that would allow her to perform the essential functions of her employment . . ." McBride v. BIC Consumer Products Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009). To satisfy this burden, the plaintiff must establish both that his requested accommodation would enable him to perform the essential functions of his job and that it " would allow him to do so at or around the time at which it is sought." Nandori v. Bridgeport, United States District Court, Docket No. 3:12CV673 (JBA), (D.Conn. January 16, 2014).
In this light, the court considers the significance of events occurring in January 2013 through February 2013, which is the primary focus of dispute between the parties. The plaintiff's evidence reveals that the plaintiff dropped off information on February 6, 2013, essentially advising the defendant that, as of February 7, 2013, she will be out for over thirty days and " would like to be able to use" donated sick time from a coworker, that she " would like to use any and all sick time, vacation time and [personal leave] time . . . available." She also left with the defendant short-term disability forms in which her doctor indicated that she would be out from February 7, 2013, due to her severe asthma, but in lieu of a return date to work, noted that her absence would be " ongoing" and return would be upon re-evaluation. One week prior, a duly completed medical certificate by her doctor indicated that she would require intermittent leave of four days per month which was subsequently modified to note " asked to stay off work 2/7/13 till improved." Significantly, the plaintiff made clear that she could be reached at her cell phone number of 860-883-1899 and, in bold font, requested that any correspondence be sent to her home address, 652 Windsor Avenue, Windsor, Connecticut.
The plaintiff does not dispute that this was the only contact information that she left for the defendant, nor does she dispute that the very next day, she moved in with her daughter, who lives in Hartford, and made no arrangements to pick up mail at the 652 Windsor Avenue address. She testified that she first picked up mail at her home around February 24, 2013, when she returned after staying with her daughter. By then Owens, who had sent the February 13, 2013 warning letter, had also sent a letter dated February 22, 2013, with notice that the plaintiff was effectively resigned and not in good standing. The plaintiff concedes that she never advised the defendant that she was staying with her daughter in Hartford, and never gave them her daughter's contact information. The plaintiff admitted that she continued to have her cell phone with her while residing with her daughter, and that her cell phone service continued to be operational during the relevant period of time, including her ability to access voicemail through her cell phone.
Although the plaintiff denies receiving voicemail messages from either Geary or Owens from February 7, 2013 through February 22, 2013, she does remember calling Geary a number of times leaving voice mail messages. Although she did not recall the dates of those calls, the plaintiff's own exhibits filed in objection to summary judgment demonstrate that plaintiff did leave several voice mail messages for Geary and one to Owens but only after the plaintiff had resigned her from employment. In her notes, Owens specifically documented phone calls from the plaintiff which were forwarded by Geary to herself on February 25, 2013, at 7:50 a.m., February 26, 2013, at 2:01 p.m., February 27, 2013, at 7:40 a.m., and then directly from the plaintiff to Owens on February 27, 2013, at 8:50 a.m. and 9:10 a.m.
Based on the evidence submitted, there is an overwhelming lack of evidence supporting the plaintiff's claim that the defendant failed to reasonably accommodate the plaintiff's disability. From February 2012 through February 2013, the year before the plaintiff was deemed resigned and not in good standing, the defendant approved ninety-eight days of paid and unpaid leaves of absence. From 2004 through 2012, the defendant approved fourteen leaves of absence through FMLA and when the plaintiff failed to accrue the minimum number of hours to be eligible for FMLA leave, the defendant allowed the plaintiff the opportunity to take a variety of types of leave, including unpaid leave, while she attempted to accrue enough hours for FMLA leave.
Moreover, the plaintiff's own evidence reveals that even during the period of February 6, 2013 through February 24, 2013, the defendant sent the plaintiff correspondence by certified mail on February 13, 2013, advising the plaintiff that Owens had attempted to contact her, that her FMLA request for intermittent leave was denied because she did not meet the eligibility requirements, that she needed to contact her supervisor on a daily basis in order to request approved leave, and that she was at risk of being " resigned not in good standing" if she did not either return to work by February 21, 2013, or provide a medical certificate to Owens on or before that date. While the exhibits the plaintiff submitted demonstrate that the defendant made clear efforts to communicate this information and that the defendant conveyed their reasonable expectation that the plaintiff maintain contact with her employer, the plaintiff's own testimony also makes clear that she did not receive this information, not because of any lack of good faith by the defendant, but because the plaintiff directed the defendant to communicate with her via a specific address and telephone number, of which, at least with respect to correspondence delivered to her home address, the plaintiff actively chose to remain ignorant. In bold type font, the plaintiff made clear that the defendant should direct written correspondence to her home and then proceeded to ensure that she would be unable to receive such communications by choosing not to make any arrangements to have her mail collected. As a result, this court cannot find that the plaintiff has met her burden that the defendant did not reasonably accommodate her when the defendant's efforts to communicate with the plaintiff were stymied by the plaintiff's failure to follow through with her own directions to the defendant as to how communications would occur.
Moreover, as the court in Curry made clear, the plaintiff must first suggest a reasonable accommodation before the defendant's obligation to engage in a good faith " informal, interactive process" is triggered. Id., 416. At the point at which the plaintiff took leave on February 7, 2013, she left the defendant with medical certificates and disability forms which, even if they were appropriate forms upon which the defendant could rely, were at best ambiguous with respect to the plaintiff's actual return to work date. At the time of the termination, the defendant had no reliable basis for determining when the plaintiff would return to work. As the court in Nandori v. Bridgeport has held, " a request for indefinite leave . . . as a matter of law, does not constitute a reasonable accommodation." Nandori v. Bridgeport, supra, United States District Court, Docket No. 3:12CV673 (JBA). Moreover, our courts have also made clear that attendance is essential to satisfying even the most basic of job functions. Combined with the ambiguity surrounding the plaintiff's return date and in the context of a history in which the defendant provided significant leaves of absence to accommodate the plaintiff, this court cannot find that the plaintiff has met her burden of establishing a prima facie case that she was either able to perform the essential functions of her job with or without a reasonable accommodation nor has she established that the defendant failed to reasonably accommodate her disability.
The motion for summary judgment is granted.