Opinion
WWMCV146008428S
01-10-2017
Jason Harrelle v. Wendy's Old Fashioned Hamburgers of New York, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Harry E. Calmar, J.
(Motions for Summary Judgment #162, #164, Short Calendar, September 12, 2016)
The defendants move for summary judgment on the grounds that there are no genuine issues of material fact regarding the defendants' liability for disability discrimination, failure to accommodate, adverse employment action, workers' compensation retaliation, and defamation claims.
The plaintiff, Jason Harrelle (Harrelle), filed the original complaint on June 9, 2014, against the defendants, Wendy's Old Fashioned Hamburgers of New York, Inc. (Wendy's), and Adel Martini-Crowley (Martini-Crowley). Harrelle filed an amended complaint on December 5, 2014. The complaint alleges the following facts. Harrelle was Wendy's employee for approximately seven years, beginning in August 2006 and ending in June 2013. During his employment, Harrelle was a restaurant manager, reporting to the general manager, who in turn reported to the district manager. During his employment, Harrelle consistently received positive performance evaluations. He initially worked at the Plainfield restaurant (Plainfield store) until Wendy's transferred him to the Waterford store. At the Waterford store, Harrelle reported to Danielle Turek (Turek), general manager. He worked at the Waterford store without incident until August 2008, when a dispute arose between Harrelle and Turek regarding scheduling. Harrelle states that when he informed Turek he could not work his regularly scheduled days off, she became irate, called him a liar, and said she would " kick his wife's ass and have someone kick his ass." Harrelle reported this incident to the district manager, David Stevens (Stevens), and as a result Stevens moved Harrelle to the Putnam store.
Harrelle worked at the Putnam store until June 2010, at which time he sustained a non-work-related injury to his knee. Harrelle received short-term disability until September 2010, at which time he returned to work. He was then transferred to the Plainfield store. While at the Plainfield store, the new district manager, Robert McFadden (McFadden) asked Harrelle if he would transfer to the Colchester store. Harrelle informed McFadden he could not work at the Colchester store because Turek was now the general manager in Colchester. He stated that due to his previous incident with Turek, he felt unsafe and that it would be a hostile and threatening work environment Harrelle and McFadden met with Toni Ann Romano, a human resources representative, to discuss the issue further. After discussions, it was determined that Harrelle would be moved to the Putnam store instead, where the defendant, Martini-Crowley, was the general manager.
Harrelle worked at the Putnam store approximately two years without incident until his alleged wrongful termination in June 2013. During that time, Harrelle alleges the following. First on March 19, 2012, during the course and scope of his employment Harrelle injured his back picking up a bucket of pickles. As a result of this injury, Harrelle herniated two discs and had an annular tear in his lumbar spine. He was out of work for one month, and consequently received workers' compensation benefits. On or around April 28, 2012, Harrelle returned to work with restrictions that were gradually eased until December 2012, when Harrelle was cleared to return to work at full duty. Harrelle was ordered, however, by his doctor, orthopedic surgeon, Dr. W. Jay Krompinger (Dr. Krompinger), that temporarily, he could only work a maximum of 8 hours per day. Approximately five months later, on May 30, 2013, Harrelle was diagnosed by Dr. Krompinger at maximum medical improvement, and he received a permanent partial disability rating of 8 percent. He was also informed by Dr. Krompinger that he was now permanently restricted to working a maximum of eight hours per day.
Restaurant managers are generally required to work ten-hour shifts. Harrelle states in the complaint that Wendy's initially accommodated this restriction, until it became permanent.
Harrelle alleges that immediately after his permanent partial disability rating was established, he overheard Martini-Crowley on the phone with McFadden, stating she would do " anything she could" to " get rid of" Harrelle. A week later, Harrelle claims that McFadden came to the Putnam store, told Harrelle that there were " too many managers in Putnam, " and that Harrelle was to be immediately transferred to the Colchester store, where Turek was still working as the general manager. Harrelle states he reminded McFadden that the Colchester store presented a hostile working environment, due to the past incident with Turek. In response, Harrelle alleges that McFadden told Harrelle to call the human resources department, asked for his keys, and told him to leave. Harrelle further alleges that during this conversation, McFadden also informed Harrelle that Martini-Crowley filed a complaint against him, accusing him of calling her a " greedy bitch, " that he said he wanted to " punch her in the face, " and that he said he " had been dying to for years." McFadden also informed Harrelle that Martini-Crowley stated he was " hostile with anyone that crossed him." In shock at these allegations, Harrelle left the Putnam store, and contacted human resources. After several phone calls to the human resources over the next week, a human resources representative, Scott Kerrigan (Kerrigan), eventually contacted Harrelle and stated that he could not validate Harrelle's concerns. Kerrigan directed Harrelle to report to the Colchester store.
As a result of these incidents, Harrelle's complaint alleges the following counts against Wendy's: (1) disability discrimination in violation of General Statutes § 46a-60 (count one); (2) failure to accommodate in violation of General Statutes § 46a-60 (count two); (3) workers' compensation retaliation in violation of General Statutes § 31-290a (count four); and (4) defamation per se against Wendy's (count six). Specifically, in count one, Harrelle alleges that Wendy's discriminated against him due to his disability and permanent eight-hour shift restriction by its decision to transfer him to a location that presented a hostile work environment and its decision to terminate his employment. In count two, Harrelle alleges that Wendy's failed to accommodate his eight-hour shift restriction once it learned the restriction was permanent, and that subsequently its decision to transfer him to a location that presented a hostile work environment was motivated by his disability and Wendy's unwillingness to provide permanent accommodations. In count four, Harrelle alleges that Wendy's actions were in retaliation for his workers' compensation claim. In count six, Harrelle alleges that Wendy's included defamation statements by Martini-Crowley in his personnel file with malice, knowing that the statements were false.
Harrelle further alleges the following counts against Martini-Crowley (1) aiding and abetting discriminatory employment practices in violation of General Statutes § 46a-60 (count three); (2) defamation per se against Martini-Crowley (count five). Specifically, Harrelle alleges in count five that Martini-Crowley's conduct and various statements regarding Harrelle were willful, outrageous, and demonstrated a reckless indifference and/or intentional and wanton violation of his rights.
In response, Wendy's asserts twenty-two special defenses including: (1) arguing that all actions taken by Wendy's was done in good faith and for legitimate business reasons; (2) that Harrelle has not alleged any facts suggesting that he was subject to an intolerable work atmosphere that would have forced him to quit involuntarily, therefore, he cannot support a claim of constructive discharge; (3) that Wendy's provided Harrelle with reasonable accommodations to the extent possible, consistently accommodating his eight-hour work restriction; (4) that any alleged defamation statements were privileged, true, opinions, and not published, therefore, the statements are not actionable as defamation per se.
Martini-Crowley also asserts eleven special defenses including that any alleged defamatory statements were privileged, true, opinions, and not published, therefore, the statements are not actionable as defamation per se.
On May 9, 2016, Wendy's moved for summary judgment on all counts against it. On the same date, Martini-Crowley moved for summary judgment on count five. In response, Harrelle filed an objection with an accompanying memorandum of law to both motions for summary judgment on July 11, 2016. All parties filed numerous exhibits in support of their memoranda.
Wendy's and Martini-Crowley both filed replies to Harrelle's objection on August 29, 2016. The motions were heard at short calendar on September 12, 2016.
DISCUSSION
" [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Bruno v. Whipple, 162 Conn.App. 186, 214, 130 A.3d 899 (2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the " inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). " [I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 222, 131 A.3d 771 (2016).
I. Wendy's Motion for Summary Judgment: Counts One and Two
As previously stated, Wendy's moves for summary judgment of counts one and two, regarding Harrelle's disability discrimination and failure to accommodate claims under General Statutes § 46a-60 .
Wendy's argues that Harrelle has not submitted evidence to establish he is disabled under CFEPA, that Wendy's fully accommodated him, and that he has not submitted any evidence indicating an adverse employment action occurred. Specifically, Wendy's contends that the transfer to the Colchester store was purely lateral and for legitimate business reasons, based on a larger initiation to reduce staffing levels. Wendy's further argues that Harrelle has not submitted sufficient evidence to show he was handicapped, infirm or impaired.
Harrelle counters that his evidence more than demonstrates that his injury resulted in a long standing and chronic impairment to his back, that his injury is a disability under CFEPA, and that there is a genuine issue of material fact regarding Wendy's actions after he received his permanent partial disability rating. Harrelle argues that it was immediately after Wendy's learned he was permanently restricted to an eight-hour shift that it proceeded to take adverse employment actions, resulting in a constructive discharge. Specifically, Harrelle argues that there is a genuine issue of material fact regarding Wendy's claim that it sought to transfer Harrelle to the Colchester store for legitimate business reasons.
A.
Disability Discrimination
" Employment discrimination law seeks to protect employees from adverse employment actions, such as demotion, retaliation and termination, that are motivated by animus on account of certain inherent characteristics rather than objective criteria such as performance or ability." S. Harris & L. Peikes, 14 Connecticut Practice Series: Connecticut Employment Law (2014) § 7.1, p. 336. " Both state and federal laws prohibit employers from discriminating against individuals with disabilities." S. Harris & L. Peikes, 14 Connecticut Practice Series: Connecticut Employment Law (2014) § 7.11, p. 407. Connecticut courts " look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both." (Citations omitted.) Tomick v. United Parcel Service, Inc., 157 Conn.App. 312, 326, 115 A.3d 1143 (2015).
" Under the Connecticut Fair Employment Practices Act. General Statutes § 46a-51 et seq., employers may not discriminate against certain protected classes of individuals, including those who are physically disabled." (Internal quotation marks omitted.) Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 775, 105 A.3d 103 (2014). Specifically, General Statutes § 46a-60(a) provides in relevant part: " It shall be 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 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 . . . physical disability . . ." (Emphasis added.)
Under Connecticut law, a physical disability is defined as " any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes from illness, including, but not limited to epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial applicant or device . . ." General Statutes § 46a-51. " The word 'chronic' is not defined in CFEPA, and accordingly, it should be construed according to the commonly approved usage of the language." (Internal quotation marks omitted.) Fasulo v. HHC Physicianscare, Inc., Superior Court, judicial district of Hartford, Docket No. CV-14-6054624-S (May 24, 2016, Noble, J.) [62 Conn.L.Rptr. 422, ]; see also General Statutes § 1-1(a); Carothers v. Capozziello, 215 Conn. 82, 129, 574 A.2d 1268 (1990). " Courts have utilized the definition proved by Black's Law Dictionary, (Sixth Ed. 1990) pp. 241-42, which defines 'chronic' as 'of long duration, or characterized by slowly progressive symptoms; deep-seated and obstinate, or threating a long continuance; distinguished from acute.' " Fasulo v. HHC Physicianscare, Inc., supra, Superior Court, Docket No. CV-14-6054624-S, . " Other Connecticut courts have held 'chronic' to similarly mean 'marked by long duration or frequent recurrence or always present or encountered.' " Id.
" The statute also does not define the terms 'handicap, ' 'infirmity' or 'impairment.' " Id. " One court has used Webster's Third New International Dictionary Unabridged (1966) to define these terms such that 'handicap, ' is defined as 'a disadvantage that makes achievement unusually difficult; especially: a physical disability that limits the capacity to work; ' 'infirm' as 'not strong or sound physical; ' and 'impair' as 'to make worse; diminish in quantity, value, excellence or strength.' " (Citations omitted.) Id. ; see also Medvey v. Oxford Health Plans Inc., United States District Court, Docket No. 3:01CV1977 (EBB), (D.Conn. September 20, 2005) (finding plaintiff's mild to moderate spinal compression/degenerative disk disease an infirmity). Therefore, " [i]t is . . . possible to be disabled within the meaning of the CFEPA, without being disabled under the ADA." S. Harris & L. Peikes, supra, § 7.11, p. 421; see also Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 314 n.7, 596 A.2d 426 (1991) (employee suffering from hypertension disabled under CFEPA); Gilman Bros. Co. v. Connecticut Commission on Human Rights & Opportunities, Superior Court, judicial district of Hartford, Docket No. CV-95-0536075-S, (May 13, 1997, McWeeny, J.) (carpal tunnel syndrome qualified disability under CFEPA).
In the present case, Wendy's submits Dr. Krompinger's deposition (Wendy's Exhibit F) in which Dr. Krompinger states that the 8 percent permanent partial disability rating has " no medical significance" and " does not mean that Harrelle was 8 percent weaker or impaired."
Harrelle, however, submits medical records from the Orthopedic Associates of Hartford (Harrelle Exhibit H) indicating he has two levels of significant and permanent disk derangement which limits his endurance, causes significant pain, and requires an ongoing eight-hour shift restriction. Harrelle also submits Dr. Krompinger's deposition (Harrelle Exhibit N) in which Dr. Krompinger states Harrelle has sustained a structural injury to his back that has resulted in a permanent and chronic disability.
Therefore, there is a genuine issue of material fact regarding if Harrelle's 8 percent permanent partial disability rating has medical significance and if it qualifies him as disabled under the meaning of CFEPA.
Accordingly, Wendy's has not met its burden of proof in showing that there is no genuine issue of material fact as to whether Harrelle's 8 percent permanent partial disability is medically significant and if he is disabled under the meaning of CFEPA.
B.
Failure to Accommodate
" 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., 286 Conn. 390, 415, 944 A.2d 925 (2008). " 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." (Citation omitted.) Id., 416.
" [T]emporary accommodation does not circumvent, however, the requirement to make a good faith effort to engage in an interactive process, if the employee so requests to determine whether the employer might make some other reasonable accommodation on a more permanent basis." Id., 416-17. " Failure of the employer to engage in the interactive process alone may be sufficient grounds for denying a defendant's motion for summary judgment, because it is, at least, some evidence of discrimination." Id., 418; see also Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) (finding that when employee has evidence that the employer did not act in good faith, the court will not readily decide on summary judgment that accommodation was not possible and employer's bad faith could have no effect).
In the present case, Wendy's submits Harrelle's deposition (Wendy's Exhibit B) in which Harrelle states that Wendy's accommodated him when he returned. The deposition also includes voice mail messages that Harrelle had on his cell phone, played during the deposition, in which Kerrigan states that Wendy's expectation was for Harrelle to come to the Colchester store because it could not validate his concerns and that his scheduled hours for the next week, Tuesday through Saturday, would be noon to 8 p.m.
Harrelle submits an email dated August 13, 2012, from McFadden to Barker (Harrelle Exhibit Z) in which he writes: " It appears to me that the doctor has released him, but that is not what Jason is saying." Harrelle also submits an email dated September 11, 2012, from McFadden to Barker (Harrelle Exhibit AA) in which he writes: " I have heard, it is only hearsay, that he is more active than I would believe possible with restrictions . . . is there anything we can do?" Last, Harrelle submits a copy of McFadden's deposition (Harrelle Exhibit C) in which McFadden states that " it was creating, after a while, a toll on the store having him work only forty hours a week. Especially when I hear, as I said in the email . . . that he's out jogging and running, but he can't work the fifty hours. That bothers me. It makes me angry where other people have to pick up the slack, that's all." McFadden further states his deposition that he told Meyers, his supervisor, that he thought the whole claim was " baloney, bullshit, whatever you want to say about it, yes." McFadden further admits in his deposition that he told Meyers: " I cannot emphasize how angry I am at this situation."
Barker's email signature indicates she is a workers' compensation analyst. She is also referenced as a Wendy's employee in McFadden's deposition (Harrelle's Exhibit C).
Therefore, there is no genuine issue of material fact that Wendy's accommodated Harrelle's eight-hour shift restriction when it was temporary. McFadden states in his deposition that Harrelle was working only forty hours a week, and likewise, Harrelle himself admits that Wendy's accommodated him when he returned with the temporary restriction.
There is, however, a genuine issue of material fact regarding if Wendy's was willing to continue to accommodate Harrelle once his eight-hour shift restriction became permanent. The only evidence Wendy's submits is the voice mail message played during Harrelle's deposition, in which Kerrigan states that Harrelle's schedule in Colchester for the next week would be noon to 8 p.m. Kerrigan does not specify in that voice mail if Wendy's planned to continue to accommodate Harrelle's permanent eight-hour shift restriction going forward. Further, McFadden's deposition (Harrelle exhibit C) presents suspicion regarding Wendy's subjective feelings, intent, and future willingness to accommodate him. McFadden openly admits that the restriction was taking " a toll" on the store and that he felt the whole claim was " baloney, bullshit."
Accordingly, while Wendy's has met its burden of proof in showing that there is no genuine issue of material fact that it fully accommodated Harrelle's disability when the accommodation was temporary, Wendy's has not met its burden of proof in showing that there is no genuine issue of material fact in regards to whether its actions regarding the transfer were an attempt to avoid the accommodation once it was permanent.
C.
Adverse Employment and Constructive Discharge
" The legal standards governing discrimination claims involving adverse employment actions are well established." Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015). " 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, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny, Lyon v. Jones, 291 Conn. 384, 406-07, 968 A.2d 416 (1989)." (Internal quotation marks omitted.) Id. " 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." (Internal quotation marks omitted.) Id. " The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question." (Internal quotation marks omitted.) Id., 73-74. " This burden is one of production, not persuasion; it can involve no credibility assessment . . ." Id.
" A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment . . . To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Amato v. Hearst Corp., 149 Conn.App. 774, 781, 89 A.3d 977 (2014). " The burden of establishing a prima facie case does not require the plaintiff to prove anything more than that he suffered some identifiable adverse employment action." Traverso v. Dept. of Education, Superior Court, judicial district of Hartford, Docket No. CV09-5033170-S, (August 11, 2016, Sheridan, J.).
Further, " [c]onstructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." (Emphasis in original.) Brittell v. Dept. of Correction, 247 Conn. 148, 178, 717 A.2d 1254 (1998). " Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Id., 178; see also D'Amato v. State Board of Pardon & Paroles, Superior Court, judicial district of New Haven, Docket No. CV-13-6037167-S, (June 14, 2016, Wilson, J.) (finding that plaintiff failed to sufficiently allege an adverse employment action when plaintiff only pled her subjective reaction, not allegations that if proven true, would result in any reasonable person to resign).
" To plead a prima facie case of constructive discharge, a plaintiff must allege two elements. First, the plaintiff must show that the defendant acted deliberately to create an intolerable work environment. Deliberateness exists only if the actions complained of were intended by the employer as an effort to force the employee to quit . . . The second element requires that all the working conditions be intolerable. Intolerability is measured by a reasonable person's standard and not by the employee's subjective feelings." D'Amato v. State Board of Pardon & Paroles, supra, Superior Court, Docket No. CV-13-6037167-S, ; see also Stoffan v. Southern New England Telephone Co., 4 F.Supp.3d. 364 (D.Conn. 2014) (employee with back pain failed to establish prima facie case of discrimination absent showing that he was terminated because of his alleged disability, despite employee's contention that various acts of employer showed discriminatory animus); Bedor v. Friendly's Ice Cream Corp., 392 F.Supp.2d 367 (D.Conn. 2005) (no adverse action when employee failed to show evidence that employer knew of the employee's medical condition at time of discharge).
Here, in support of its argument that Harrelle's transfer to the Colchester store was purely lateral, Wendy's submits Harrelle's deposition (Wendy's Exhibit B) in which Harrelle states that he would maintain the same title, pay, and benefits at the Colchester store as he had at the Putnam store, and that he would perform the same duties, the same responsibilities, and his residence was approximately equidistant from each. Without submitting further evidence, Wendy's argues that Harrelle's feelings about Turek are irrelevant and subjective, and do not support an adverse employment action.
Harrelle submits McFadden's deposition (Harrelle Exhibit C) in which McFadden states that the initiative to " balance the number of managers" at various stores was communicated to all general managers, that Harrelle's transfer was the only one that occurred at that time, and admitted that Wendy's never filled the manager position at the Colchester store to which Harrelle would have been transferred to. Harrelle also submits Turek's deposition (Harrelle Exhibit E) in which Turek states that she was not aware of the initiative and that, in fact, her staffing costs would have been higher if Harrelle had been transferred. Harrelle further submits Kerrigan's deposition (Harrelle Exhibit P) who stated that he was not involved in the decision to transfer Harrelle, and that he did not know if other employees or managers had been transferred at the same time. Last, Harrelle submits Martin-Crowley's deposition (Harrelle Exhibit G) in which she states that Harrelle's position in Putnam was filled with a replacement, and that person was still working in that position in Putnam.
Therefore, there is a genuine issue of material fact regarding if Wendy's decision to transfer Harrelle was based on legitimate business reasons. While Wendy's argues the transfer was for legitimate business reasons, it relies only on evidence that the Colchester store transfer was for the same position and pay. The fact, however, that Wendy's did not follow through with filling the position at the Colchester store once Harrelle was no longer employed raises a genuine issue of material fact as to if the transfer was for legitimate business reasons or to force Harrelle to quit.
Accordingly, Wendy's has not met its burden of proof in showing that there is no genuine issue of material fact regarding if the transfer to Colchester was for legitimate business reasons or if it was a constructive discharge.
The evidence reveals genuine issues of material fact as to whether Harrelle is disabled, if Wendy's subsequently discriminated against his disability, if Wendy's failed to accommodate him once his restriction became permanent, and if Wendy's decision to transfer Harrelle immediately to a work environment which it was aware was hostile to Harrelle, after learning of his permanent disability and permanent eight-hour shift restriction was motivated by his disability. For the foregoing reasons, the court denies Wendy's motion for summary judgment regarding counts one and two.
II. Wendy's Motion for Summary Judgment Count Four
As previously noted, Wendy's moves for summary judgment for count four of the complaint arguing that Harrelle cannot make out a prima facie case of retaliatory discharge under General Statutes § 31-290a because he has not established through evidence that there was an adverse employment action or that it was causally connected to his exercise of rights under the Workers' Compensation Act. In response, Harrelle counters that there is more than enough evidence for the jury to find a causal connection between Harrelle's workers' compensation claim and his termination. Specifically, Harrelle contends that Wendy's has not submitted any evidence that he quit.
A.
Workers' Compensation Retaliation
General Statutes § 31-290a provides in relevant part: " No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter."
" To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a right afforded her under the Workers' Compensation Act . . . and that the defendant discriminated against her for exercising that right . . . The plaintiff must show a causal connection between exercising her rights under the act and the alleged discrimination she suffered. Implicit in this requirement is a showing that the defendant knew or was otherwise aware that the plaintiff had exercised her rights under the act . . . To establish a prima facie case of discrimination, the plaintiff must first present sufficient evidence . . . that is, evidence sufficient to permit a rational trier of fact to find (1) that she engaged in protected activity . . . (2) that the employer was aware of this activity, (3) that the employer took adverse action against the plaintiff, and (4) that a causal connection exists between the protected activity and the adverse action . . ." (Internal quotation marks omitted.); Callender v. Reflexite Corp., 143 Conn.App. 351, 364, 70 A.3d 1084, cert denied, 310 Conn. 905, 75 A.3d 32 (2013); see also Martin v. Westport, 108 Conn.App. 710, 717-18, 950 A.2d 19 (2008).
" A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant." (Emphasis in original.) Martin v. Westport, supra, 108 Conn.App., 719. " [A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by 'showing that the protected activity was closely followed in time by the adverse employment action.' " (Internal quotation marks omitted.) Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (twelve days between alleged sexual harassment and discharge could suggest a causal relationship). " The trier of fact, using the evidence at its disposal and considering the unique circumstances of each case, is in the best position to make an individualized determination of whether the temporal relationship between an employee's protected activity and an adverse action is causally significant." See Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 539, 976 A.2d 784 (2009) (indirect causal connection between protected activity and adverse action may be established by showing protected activity followed closely in time of adverse action). " Likewise, the trier of fact is in the best position to determine whether the employer acted with a retaliatory animus." Id., 540; see also Desanto v. Stoltz Sea Farm, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-03-028592-S, (March 15, 2005, Tanzer, J.) (denying summary judgment when defendant failed to demonstrate it had not unlawfully discriminated against plaintiff when plaintiff made several attempts to return to light duty).
" The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy the burden of persuading the factfinder that the plaintiff was the victim of discrimination either directly by persuading the court or jury that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence . . ." (Internal quotation marks omitted.) Callender v. Reflexite Corp., supra, 143 Conn.App. 363.
In the present case, Wendy's submits a copy of Brady's signed and sworn affidavit (Wendy's Exhibit A). In Brady's affidavit he states that each individual Wendy's store is responsible only for the first $5,000 in payments for workers' compensation claims, and that any amount in excess is paid from a corporate cost center and not controlled by restaurant management. He specifically states that Harrelle's workers' compensation claim exceeded $5,000 in 2012. Therefore, he contends that no individual store would be responsible for any additional payments and it would not be reflected on any profit and loss statement. Consequently, the managers would not be aware of the cost of his claim. Wendy's further submits Harrelle's deposition (Wendy's Exhibit B) in which Harrelle states that no one treated him differently because of his claim. Wendy's did not submit any evidence that it offered Harrelle work in any other restaurant besides Colchester.
As previously noted, Brady is a human resources manager at Wendy's.
Harrelle submits McFadden's deposition (Harrelle Exhibit C) in which McFadden states that he was angry about Harrelle's workers' compensation claim. He also states in the deposition that his supervisor thought the numbers were " ugly" and that he himself doubted the validity of the claim, wanted to hire a private investigator, and that he thought the claim was " BS, " " baloney, " and " bullshit." Harrelle also submits his own deposition (Harrelle Exhibit D) in which he states that he offered to work in any other restaurant in the district. Harrelle further states in his deposition that he saw a line item on the profit and loss sheet of $5,000 for his claim, and that every time it would come up, Meyers or Martini-Crowley would point to him and say, " Oh, we know what that one is."
Therefore, there is a genuine issue of material fact regarding if Wendy's acts were retaliatory in response to Harrelle's workers' compensation claim. Although Wendy's submits evidence that each individual store is only responsible for the first $5,000 in payments for workers' compensation claims, it is sufficient that Harrelle's supervisors knew he was receiving workers' compensation and suspected that it was bogus. Accordingly, Wendy's has not met its burden of proof in showing that there are no genuine issues of material fact in dispute regarding Harrelle's retaliation claim. The court denies Wendy's motion for summary judgment regarding count four.
III. Both Defendants' Motions for Summary Judgment: Counts Five and Six
In counts five and six, the plaintiff seeks to hold the defendants liable for defamation per se because of several statements Martini-Crowley allegedly made about him. Specifically, the plaintiff alleges that he was defamed by three statements by Martini-Crowley: (1) a statement that the plaintiff called her a " greedy bitch, " (2) a statement that the plaintiff said he wanted to punch her in the face and had been dying to for years, and (3) a statement that the plaintiff was hostile to anyone who crossed him.
The defendants argue that they are entitled to summary judgment on these defamation claims for a variety of reasons. Two of their arguments relate to all three of Martini-Crowley's alleged statements. First, they argue that the statements are not actionable as defamation per se because they do not charge improper conduct or lack of skill in the plaintiff's profession. This argument was previously raised in Martini-Crowley's motion to strike (#122) filed on February 19, 2015, and this court rejected the argument in its May 1, 2015 memorandum of decision. Looking at the same allegedly defamatory statements at issue in the present motion, the court concluded that " [t]hese statements could be said to implicate improper conduct or lack of skill or integrity in one's business as well as general incompetence or lack of integrity." The court accordingly denied the motion to strike.
The defendants argue that the court should revisit that determination because the motion to strike was decided solely on the allegations of the complaint, whereas the present motion involves an expanded evidentiary record. While it is true that the parties have submitted evidence in connection with some of the arguments set forth in the present motions, this particular argument focuses, as it did in the context of the motion to strike, on the three statements of Martini-Crowley as alleged in the complaint, and whether those statements implicate the plaintiff's competence and integrity in his business. The court's previous ruling on the motion to strike is on point and is the law of the case. See, e.g., Sutcliffe v. FleetBoston Financial Corp., 108 Conn.App. 799, 804 n.4, 950 A.2d 544 (2008) (" [a] judge should hesitate to change his own rulings in a case"). The court denies summary judgment on this ground.
Second, the defendants argue that all of the alleged statements are privileged because they were made in the course of an internal investigation. A claim of privilege in a defamation case may be overcome by proof of malice in fact or actual malice. Mara v. Otto, 127 Conn.App. 404, 409, 13 A.3d 1134 (2011). " Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives." (Internal quotation marks omitted.) Id.
As stated earlier in this memorandum, genuine issues of material fact remain regarding the plaintiff's claims of discrimination and retaliation. The allegations of those claims are incorporated into the defendant's defamation claims. Accordingly, genuine issues of fact remain with regard to the defamation claims because the defendants may have acted with discriminatory and retaliatory motives. The court denies the motion for summary judgment on this ground.
The defendants make a number of further arguments, each of which is addressed to some, but not all, of the alleged defamatory statements. With regard to Martini-Crowley's alleged statement that the plaintiff was hostile to anyone who crossed him, the only additional argument the defendants make is that the statement is not actionable as defamation because it is an expression of opinion rather than a statement of fact. Precisely the same argument was also raised in the previous motion to strike and was rejected by this court when it denied that motion in its May 1, 2015 memorandum of decision. The previous ruling is the law of the case, and the defendants have set forth no new arguments as to why the court should reach a different conclusion. See Sutcliffe v. FleetBoston Financial Corp., supra, 108 Conn.App. 804 n.4.
The conclusion that there is no merit to any of the defendants' arguments regarding Martini-Crowley's alleged statement regarding the plaintiff's hostility dictates that the motion for summary judgment should be denied on the defamation counts. That is because a defendant's motion for summary judgment should be granted only if it negates each claim set forth in the relevant count. See Rockwell v. Quintner, 96 Conn.App. 221, 229-32, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006), and cases cited therein. For example, a motion for summary judgment was improperly granted where the complaint alleged malpractice in several dental treatments on different dates and the evidence established that some, but not all, of the treatments occurred outside the limitations period. Id., 233. Similarly, where a complaint alleged five ways in which the defendant's driving was negligent, and the evidence in support of the motion for summary judgment addressed only some of the five, summary judgment was improperly granted. Id., 231, citing Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984).
Here, for the reasons previously discussed, the defendants have failed to negate the plaintiff's allegation that Martini-Crowley defamed him by stating that he was hostile to anyone who crossed him. Accordingly, the defendants have not negated all the bases for liability set forth in counts five and six of the complaint, and they are not entitled to summary judgment. The court need not address the additional arguments addressed to the other allegedly defamatory statements. The court denies the motions for summary judgment on counts five and six.
CONCLUSION
For all of the foregoing reasons, the court denies the defendants' motions for summary judgment in their entirety.