Opinion
HHDCV166069912S
01-11-2018
Dianna BARBABOSA v. MANCHESTER BOARD OF EDUCATION
UNPUBLISHED OPINION
OPINION
Robaina, J.
FACTS
On July 20, 2016, the plaintiff, Dianna Barbabosa (Barbabosa), filed a three-count complaint against the defendant, Manchester Board of Education (Board), for disability discrimination, failure to accommodate and retaliation, all in violation of the Connecticut Fair Employment Practices Act (CFEPA). The complaint alleges the following facts. The plaintiff was hired by the defendant in 2006 and worked as a paraprofessional. The defendant is aware that the plaintiff is disabled, suffering from fibromyalgia, anxiety, depression, chronic asthma, and rheumatoid arthritis. The plaintiff had requested reasonable accommodation for her disability, specifically requesting certain finite absences, but the plaintiff was penalized for disability-related absences nonetheless.
The plaintiff specifically points to General Statutes § 46a-60(a)(1) and (4). These subsections provide: " (a) It 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 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, including, but not limited to, blindness ... (4) For 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 section 46a-82, 46a-83 or 46a-84."
The complaint further alleges that the defendant violated CFEPA in the following ways: the defendant interfered with the plaintiff’s privilege of employment on the basis of the plaintiff’s disability; the defendant discriminated against the plaintiff for requiring reasonable accommodation; the defendant discriminated against the plaintiff in such a way that adversely affected her status as an employee; the defendant treated the plaintiff different from similarly situated employees; the defendant intentionally discriminated against the plaintiff; and the defendant suspended the plaintiff because of her disability. The defendant also allegedly failed to reasonably accommodate the plaintiff, and then retaliated against the plaintiff for requesting a reasonable accommodation.
The complaint further alleges that the defendant exhibited ill will, malice, improper motive, and/or reckless indifference to the plaintiff’s civil rights. Due to the defendant’s alleged actions, the plaintiff has been deprived of income, wages, and benefits, and has suffered severe humiliation, embarrassment, and emotional distress. Additional facts will be provided as necessary.
The plaintiff filed charges against the Board with the Connecticut Commission on Human Rights and Opportunities (CHRO) on September 30, 2014, and subsequently received release of jurisdiction from the CHRO on April 20, 2016.
The defendant has filed its motion for summary judgment as to the plaintiff’s entire complaint and a memorandum of law in support with exhibits. The plaintiff filed her memorandum in opposition with exhibits.
The defendant’s exhibits include: (A) select portions of the deposition of Dianna Barbabosa; (B) the Collective Bargaining Agreement between the Manchester Board of Education and the Manchester Para/Tutor Association Local # 3175, AFT, AFL-CIO; (C) select portions of the deposition of Aaliyah Mahasin-Blade; (D) select portions of the deposition of Terri Smith; (E) select evaluation forms; (F) letter from Barbabosa regarding Europe vacation dated January 4, 2008; (G) memorandum from Edward Dillon to Barbabosa dated March 28, 2008; (H) letter from Edward Dillon to Barbabosa dated May 12, 2008; (I) letter from Stuart Wolf to Barbabosa dated March 25, 2010; (J) letter from Stuart Wolf to Barbabosa dated September 12, 2011; (K) select portions of the deposition of Kim Colburn; (L) letter from Terri Smith to Barbabosa dated November 20, 2012; (M) letter from Stuart Wolf to Barbabosa dated December 5, 2013; (N) letter from Terri Smith to Barbabosa dated December 20, 2013; (O) letter from Patricia Brooks to Barbabosa dated April 7, 2014, and letter from Terri Smith to Barababosa dated April 8, 2014; (P) plaintiff’s attendance record for 2013-2014; (Q) plaintiff’s attendance record for 2012-2013; (R) plaintiff’s attendance record for 2011-2012; (S) employee FMLA leave request dated December 23, 2013, filled out by Barbabosa and Dr. Barbara Kage; (T) intermittent FMLA leave form; (U) Department of Labor Notice of Eligibility for FMLA; and (V) various doctor notes.
The plaintiff’s exhibits include: (1) select portions of the deposition of Dianna Barbabosa; (2) select portions of the deposition of Terri Smith; (3) select portions of the deposition of Aaliyah Mahasin-Blade; (4) select portions of the deposition of Kim Colburn; (5) letter from Terri Smith to Barbabosa dated November 20, 2012; (6) letter from Terri Smith to Barbabosa dated December 20, 2013; (7) letter from Terri Smith to Barababosa dated April 8, 2014; (8) letters from Dr. Phuong Batouli dated March 25, 2014, and March 31, 2014; (9) intermittent FMLA Leave form; (10) Department of Labor Notice of Eligibility for FMLA; (11) employee FMLA leave request dated December 23, 2013, filled out by Barbabosa and Dr. Barbara Kage; (12) employee FMLA leave request dated April 8, 2014, filled out by Barbabosa and Dr. Phuong Batouli; (13) leave of absence request dated April 4, 2014; (14) the Collective Bargaining Agreement between the Manchester Board of Education and the Manchester Para/Tutor Association Local # 3175, AFT, AFL-CIO; and (15) select evaluation forms.
DISCUSSION
I
SUMMARY JUDGMENT
" [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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " 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." Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010). " [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). " A material fact is a fact that will make a difference in the result of the case ... The facts at issue are those alleged in the pleadings ... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Recall Total Information Management, Inc. v. Federal Ins. Co., 147 Conn.App. 450, 456, 83 A.3d 664 (2014), aff’d, 317 Conn. 46, 115 A.3d 458 (2015).
The defendant moves for entry of summary judgment on all three counts based on several grounds. Regarding the first count, the defendant argues that the plaintiff’s disability discrimination claim fails because (1) she cannot establish that she has a disability under CFEPA; (2) she cannot establish that she could perform the essential functions of her job; and (3) the Board had a legitimate, non-discriminatory reason for suspending the plaintiff, and there is no evidence of pretext. As to the second count, the defendant argues that the plaintiff’s failure to accommodate claim fails because (1) she cannot establish that she has a disability under CFEPA; (2) she cannot establish that the Board had notice of her alleged depression, anxiety, fibromyalgia, and/or rheumatoid arthritis; (3) she cannot establish that she requested a reasonable accommodation that would allow her to perform the essential functions of her position; (4) she cannot establish that that the Board denied her reasonable accommodation; and (5) her proposed accommodation would have imposed an undue hardship on the Board. Lastly, as to count three, the defendant argues that the plaintiff’s retaliation claim fails because (1) she cannot establish that she engaged in protected conduct under CFEPA; (2) she cannot establish that she suffered an adverse employment action aside from the suspension; (3) she cannot establish a causal connection between her request for accommodation and any of the alleged adverse employment actions; and (4) the Board had a legitimate, non-retaliatory reason for suspending the plaintiff, and there is no evidence of pretext.
The plaintiff argues that she has presented sufficient evidence to establish that she has a disability; that she can perform the essential functions of her position with or without an accommodation; that she suffered an adverse employment action; and that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. The plaintiff also argues that the defendant, despite knowing of her disabilities, failed to accommodate her.
II
COUNT ONE- DISABILITY DISCRIMINATION
General Statutes § 46a-60 provides in relevant part: " (a) It 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 refuse to hire or employ or to bar or to discharge from employment any 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 ..." In this case, the plaintiff’s CFEPA claims are based on disparate treatment. " [D]isparate treatment ... refers to those cases where certain individuals are treated differently than others ... The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status." (Internal quotation marks omitted.) Marasco v. Connecticut Regional Vocational Technical School, 153 Conn.App. 146, 160, 100 A.3d 930 (2014), cert. denied, 316 Conn. 901, 11 A.3d 469 (2015).
" The framework this court employs in assessing disparate treatment 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 ... We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both ... Under this analysis, the employee must first make a prima facie case of discrimination." (Citations omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015). " The burden of establishing a prima facie case [of discrimination] is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder ... The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff’s favor." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012). " 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 action occurred under circumstances that give rise to an inference of discrimination." Feliciano v. Autozone, Inc., supra, 316 Conn. 73.
" The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question." Feliciano v. Autozone, Inc., supra, 316 Conn. 74. " This, too, is a burden of production, and the [employer] merely needs to state a nondiscriminatory reason." Craine v. Trinity College, 259 Conn. 625, 643, 791 A.2d 518 (2002). " After the [employee] has established a prima facie case, and the [employer] has produced evidence of a legitimate, nondiscriminatory reason for the employment action, [t]he [employee] retains the burden of persuasion. [The employee] now must have the opportunity to demonstrate that the [employer’s] proffered reason was not true for the employment decision." (Internal quotation marks omitted.) Harris v. Dept . of Correction, 154 Conn.App. 425, 431, 107 A.3d 454 (2014); see also Phadnis v. Great Expression Dental Centers of Connecticut, P.C., Superior Court, judicial district of Hartford, Docket No. CV-13-6042588 (January 26, 2015, Elgo, J.) (59 Conn.L.Rptr. 673, 674), aff’d, 170 Conn.App. 79, 87, 153 A.3d 687 (2017) (" [t]he employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision was actually motivated by illegal discriminatory bias" [internal quotation marks omitted]). " The [employee] ... must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court ... 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.) Diaz v. Housing Authority, 258 Conn. 724, 730, 785 A.2d 192 (2001).
" 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 ... The burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis." (Citation omitted; internal quotation mark omitted.) Reddick v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-11-6021301-S (December 3, 2015, Wilson, J.). " [A]n employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Perez-Dickson v. Bridgeport, supra, 304 Conn. 516.
The court will look at each of the four elements of the plaintiff’s prima facie case for discrimination. If the plaintiff fails to meet her burden on any one of the four, her claim will necessarily fail and summary judgment will be granted in favor of the defendant.
A
Protected Class
The defendant argues that the plaintiff has not presented evidence to show that she actually suffers from a mental or physical disability. The defendant’s position is that the complaint alleges that the plaintiff suffers from fibromyalgia, anxiety, depression, asthma, and rheumatoid arthritis but that, with the exception of asthma, the plaintiff has not produced any documentation to show she suffers from any of these conditions. Regarding the plaintiff’s asthma, the defendant argues that the plaintiff has not produced any evidence to show that this condition qualifies as a chronic physical impairment, and that there is no evidence that the plaintiff exhibited severe asthmatic symptoms while at work or that her extensive absences were attributed to her asthma.
The plaintiff counters by stating that she suffers from a myriad of disabilities. In bier opposition, the plaintiff first argues that Terri Smith (Smith), human resources specialist for the defendant, acknowledged her chronic asthma. The plaintiff then only addresses her alleged fibromyalgia condition. She argues that she has provided sufficient evidence to show that she suffers from fibromyalgia, specifically pointing to Family and Medical Leave Act (FMLA) paperwork completed by the plaintiff and Dr. Barbara Kage, the plaintiff’s rheumatologist; a meeting that took place on December 17, 2013, between the plaintiff, Smith, another human resources specialist for the defendant, and both union residents; and generally asserting that Smith was aware that the plaintiff had fibromyalgia.
General Statutes § 46a-51(15) defines " physically disabled" as " any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." Section 46a-51(20) states that " ‘mental disability’ refers to an individual who has a record of, or is regarded as having one or more mental disorders as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders.’ " In light of these definitions, the court will analyze the record regarding the five alleged ailments to determine if the plaintiff has met her burden of production, keeping in mind that " [o]ur courts have long held that summary judgment may not be based on or opposed by inadmissible evidence of self-serving, unsubstantiated speculation or conclusory statements or denials." (Emphasis omitted.) Phadnis v. Great Expression Dental Centers of Connecticut, P.C., supra, 59 Conn.L.Rptr. 673, 677.
Fibromyalgia
The court will first address the plaintiff’s claim that she suffers from fibromyalgia. Fibromyalgia is defined as " a syndrome of chronic pain of musculoskeletal origin but uncertain cause ..." Stedman’s Medical Dictionary (27th Ed. 2000) p. 671. From this definition, it would seem that fibromyalgia would be considered an applicable physical disability in this case if supported by evidence. Unfortunately, the plaintiff did not submit evidence of a medical diagnosis stating that she suffers from fibromyalgia. The plaintiff argues that her physician completed FMLA paperwork indicating the plaintiff’s maladies. Dr. Kage does note that the plaintiff experiences " tingling/numbness in hands/feet; fatigue; muscle and joint aches, pain and stiffness; prolonged morning stiffness"; Pl.’s Ex. 11, p. 3; however, nowhere on that document does it specifically state that the plaintiff has been diagnosed or is suffering from fibromyalgia. The only place fibromyalgia is written on that exhibit is on the first page; Pl.’s Ex. 11; in the plaintiff’s handwriting. Def.’s Ex. A, p. 106. Dr. Kage could have been discussing fibromyalgia or she could have been describing some other symptoms of another ailment the plaintiff allegedly has, namely rheumatoid arthritis. The plaintiff points to her own deposition where she states that she mentioned that she had fibromyalgia at a meeting on December 17, 2013. Pl.’s Ex. 1, p. 52. Aaliyah Mahasin-Blade, one of the union presidents, stated in her deposition that she remembers the plaintiff mentioning fibromyalgia in that meeting, but that the issue was that there was no doctor’s documentation as to the existence of that condition. Pl.’s Ex. 3, p. 45.
The plaintiff also stated in her deposition that Smith had previously been informed of her fibromyalgia and that it was on the FMLA documents signed by her doctor. Pl.’s Ex. 1, p. 96. Smith stated that she had no knowledge that the plaintiff had fibromyalgia. Pl.’s Ex. 2, p. 10. Indeed, the plaintiff stated in her own deposition testimony that there were instances where she informed Smith only that she had " possible fibromyalgia." Pl.’s Ex. 1, p. 97. The plaintiff could not provide specific dates or time periods of these instances, and her statement that she only possibly had fibromyalgia does not bode well for her claim of a fibromyalgia disability. The plaintiff’s doctor did not indicate anywhere on the FMLA paperwork that the plaintiff had fibromyalgia. Def.’s Ex. A, p. 106. In fact, the plaintiff admits that there are no documents which actually state that she suffers from fibromyalgia which have been provided to the defendant. Def.’s Ex. A, p. 152. The plaintiff seems to argue that just because she says that she has fibromyalgia, that would be enough to meet her burden of production. However, this is not the case and the evidence before the court is inadequate to meet the burden of production as to the plaintiff suffering a disability due to fibromyalgia.
2
Anxiety and Depression
The plaintiff has also claimed that she suffers from anxiety and depression and is disabled due to these conditions. " Because depression is included in the DSM-IV-TR, it is a ‘mental disability’ as defined by General Statutes § 46a-51(20)." Conte v. New Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. CV-02-0466475 (May 15, 2003, Skolnick, J.). Likewise, anxiety is also included in the DSM-IV as well as the DSM-V and, therefore, is a mental disability pursuant to § 46a-51(20). See id. The defendant argues that the plaintiff has provided no documentation or diagnosis of these alleged conditions. The plaintiff testified that she informed Smith of her anxiety and depression but could provide no details on when, where, or how she informed Smith. Pl.’s Ex. 1, p. 100-02. Importantly, the plaintiff testified that she is not certain she has been diagnosed with depression or anxiety. Def.’s Ex. A, p. 65. The plaintiff also testified that the FLMA paperwork was the only documentation that she was relying on to show she suffers from anxiety and depression. Def.’s Ex. A, p. 105. The defendant’s attorney explained to the plaintiff that the FMLA paperwork filled out by her doctor only states that the plaintiff was going to be evaluated. for anxiety and depression. Id., 105-06. The plaintiff then responded with " I was mistaken, then. I’m sorry." Id., 106. Based on the foregoing, the evidence before the court fails to meet the burden of production as to the plaintiff suffering a disability due to anxiety or depression.
3
Rheumatoid Arthritis
The plaintiff further claims to suffer from rheumatoid arthritis. The defendant’s position is that the plaintiff, again, has not provided any documentation supporting this claim. " The definitional language in and of itself [of General Statutes § 46a-51(15) ] is interesting in that it defines physically disabled in part in terms of the symptoms as opposed to the condition." Smith v. PFS Fitness, LLC, Superior Court, judicial district of Stamford, Docket No. CV-10-6003928-S (September 5, 2012, Genuario, J.) (54 Conn.L.Rptr. 639, 640). Rheumatoid arthritis is defined as " a generalized disease, occurring more often in women, which primarily affects connective tissue; [arthritis] is the dominant clinical manifestation, involving many joints, especially those of the hands and feet, accompanied by thickening of articular soft tissue, with extension of synovial tissue over articular cartilages, which become eroded; the course is variable but often is chronic and progressive, leading to deformities and disability." Stedman p. 149. Here, there is no evidence of a diagnosis that the plaintiff has rheumatoid arthritis other than her own statements, but there is evidence that the plaintiff suffers from certain chronic symptoms associated with rheumatoid arthritis. On the FMLA leave request form dated December 3, 2013, the plaintiff’s rheumatologist, Dr. Kage, wrote that the plaintiff experiences " tingling/numbness in hands/feet; fatigue; muscle and joint aches, pain and stiffness; prolonged morning stiffness." Pl.’s Ex. 11, p. 3. Dr. Kage also notes that the condition will cause episodic flare-ups periodically. Id., 4. Thus, the court finds that the description provided by the plaintiff’s doctor creates a genuine issue of material fact whether the symptoms listed are part of the claimed rheumatoid arthritis disability.
4
Asthma
Regarding the plaintiff’s claim that she suffers from asthma, the defendant seems to concede that the plaintiff has asthma. The defendant, however, argues that the plaintiff has not produced any evidence to show that her asthma is a chronic physical impairment. The defendant further argues that there is no evidence before the court that the plaintiff has had severe asthmatic symptoms at work or that her absences were attributed to her asthma. On the Employee FMLA leave request form dated April 8, 2014, the plaintiff’s primary care doctor, Dr. Phuong Batouli, wrote that the plaintiff suffers from recurrent asthmatic bronchitis and noted that the plaintiff may be unable to perform her job functions due to the condition. Pl.’s Ex. 12, p. 3. In light of this, the plaintiff has met her burden of production that she suffers from a disability due to her asthma. See also Kovachich v. State Dept. of Mental Health and Addiction Services, Superior Court, judicial district of New London, Docket No. CV-13-6018881-S (October 12, 2017, Bates, J.) (" [T]he evidence raises questions of fact regarding whether the plaintiff’s ... asthma ... [qualifies] her as disabled under the meaning of CFEPA. Accordingly, the defendant has hot met its burden of proof showing that there is no genuine issue of material fact as to whether the plaintiff has a disability under the meaning of CFEPA").
For the foregoing reasons, the plaintiff has met her burden of production as to the first element of the prima facie case for employment discrimination under the McDonnell Douglas framework as there are genuine issues of material fact that the plaintiff suffers from rheumatoid arthritis and/or chronic asthma.
B
Qualified
The defendant next argues that the plaintiff’s disability discrimination claim fails because she cannot establish that she could perform the essential functions of her job, in this case, regularly attending work. The plaintiff counters by arguing that " [o]utside of the categories pertaining to attendance and tardiness, [the] plaintiff’s performance evaluations demonstrate her high caliber of work, " and that she meets expectations despite her attendance issues. PI.’s Mem. Opp. 8.
The Supreme Court has held that a plaintiff claiming disability discrimination under CFEPA must show that he was able to perform the essential functions of the job with or without a reasonable accommodation of his disability. Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008). " A plaintiff cannot be ‘considered ‘otherwise qualified’ unless she is able, with or without assistance, to perform the essential functions of the job in question." Desmond v. Yale -New Haven Hospital, Inc., 738 F.Supp.2d 331, 343 (D.Conn. 2010). " In determining whether an employee meets the qualifications of [her] job and whether [her performance] is satisfactory, courts may rely- as they often must- on evaluations rendered by supervisors ... Job performance cannot be assessed in a vacuum; the ultimate inquiry is whether an employee’s performance meets [her] employer’s legitimate expectations." (Citations omitted; internal quotation marks omitted.) Vandel v. Standard Motor Products, Inc., 52 F.Supp.2d 344, 348 (D.Conn. 1999). " The Second Circuit ... [has] articulated the proper analysis for determining whether a job function is essential, including consideration of the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring plaintiff to perform the function, mention of the function in any collective bargaining agreement, the work experience of past employees in the job, and the work experience of current employees in similar jobs ... [A] court may not simply rely on the defendant’s assertion regarding whether or not a function is essential, but must careful consider all of the relevant factors, including, but not limited to, those listed ..." (Citation omitted; internal quotation marks omitted.) Martinsky v. Bridgeport, 814 F.Supp.2d 130, 146 (D.Conn. 2011) aff’d, 504 Fed.Appx. 43 (2d Cir. 2012).
" Essential functions are defined under [Equal Employment Opportunity Commission] regulations to mean the fundamental duties to be performed in the position in question, but not functions that are merely marginal ... In approaching this inquiry, [a] court must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position ... A reasonable accommodation can never involve the elimination of an essential job function." (Citations omitted; internal quotation marks omitted.) Palmieri v. Hartford, 947 F.Supp.2d 187, 201 (2013). " Because a reasonable accommodation can never involve the elimination of an essential job function, a plaintiff proposing an alternative arrangement (as opposed to a reassignment) still carries the burden of demonstrating that [she] can perform the essential functions of the original job." (Internal quotation marks omitted.) Id., 202-03.
" Both before and since the passage of the ADA, a majority of [federal] circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions ... The Connecticut Appellate Court has similarly recognized this principle in 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), which found that [n]umerous 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." (Citation omitted; 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, 427). " As the Second Circuit court has found, the plaintiff bears the burden of production and persuasion on the issue of whether she is otherwise qualified for the job in question and cannot be considered ‘otherwise qualified’ unless she is able, with or without assistance, to perform the essential functions of the job in question. Borkowski v. Valley Central School District, 63 F.3d 131, 137-38 (2d Cir. 1995)." Beck v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-13-6045913 (December 27, 2016, Elgo, J.).
There a few analogous New York district court cases that this court found instructive. In Pierce v. Highland Falls-Fort Montgomery Center School District, United States District Court, Docket No. 08-civ-1948 (RKE) (S.D.N.Y. September 28, 2011), the plaintiff, Pierce, was a teacher who claimed to suffer from depression, osteoarthritis, anxiety, and drug addiction. Despite his alleged health problems and significant absenteeism issues, Pierce had received positive employment reviews. The court held that Pierce’s persistent absences from work precluded him from being qualified under the ADA, stating that the " ADA does not require an employer to make a reasonable accommodation for an employee who does not attend work, nor does the Act require an employer to retain such an employee." The court continued, stating that " regardless of whether Pierce had the necessary teaching skills, he cannot be considered a qualified individual under the ADA based on his admitted failure to meet the attendance requirements of his employment." Pierce argued that he was entitled to relief because the defendants did not provide adequate accommodations, which he proposed should have been to allow him to work part-time or to send him away to treatment The court noted that " [a]lthough reasonableness is normally a question of fact, summary judgment may be granted in cases where, as here, the plaintiff’s proposed accommodation would eliminate the essential functions of the job ... Plaintiff’s proposed accommodations would eliminate the requirement of regular attendance, which is essential to his employment as a teacher." (Citations omitted; internal quotation marks omitted.)
In Mescall v. Marra, 49 F.Supp.2d 365, 367-68 (1999), the plaintiff, Mescall, was a guidance counselor that was denied tenure due to attendance issues. She allegedly suffered from stress, depression, and anxiety. Id., 369. Mescall testified that the essential functions of an elementary school guidance counselor included, inter alia, maintaining regular attendance. Id., 374. Mescall’s position was that she was qualified because she performed all necessary counseling duties and had received satisfactory performance evaluations. Id. The court noted, however, that " in addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate those skills by coming to work on a regular basis." Id. Mescall had missed forty-one days of school during her probationary period to become tenured. Id. The court continued: " Moreover, no reasonable accommodation could have improved Mescall’s attendance record because none of these absences was the result of her alleged mental disability. To the extent that she requests the accommodation of ignoring medically documented sick days when calculating her attendance record, this accommodation is unreasonable as a matter of law because it would eliminate an essential function of the job." (Footnote omitted; internal quotation marks omitted.) Id. The court held that regardless of the fact that Mescall possessed the necessary counseling skills, she could not be considered qualified because she failed to meet the attendance requirements of her position. Id.
Lastly, in Ramirez v. New York City Board of Education, 481 F.Supp.2d 209, 213 (2007), the plaintiff, Ramirez, was a teacher who had been diagnosed with epilepsy, depression, and high blood pressure. Id., 213-14. During one school year, Ramirez was absent fifty-two days, but the principal rated his performance satisfactory nonetheless. Id., 214. During the next school year, Ramirez was absent forty-two days and received an unsatisfactory rating on his annual review and was terminated. Id., 214-15. Ramirez provided documentation for some, but not all of his absences, and of those documented absences, not all were related to his alleged disabilities. Id., 214. The court held that Ramirez did not demonstrate that he could show up to work, an essential function of his employment. Id., 221. The court further acknowledged that all parties agreed that Ramirez could perform his duties in the classroom as a teacher, but in addition to possessing the necessary skills, he needed to be able to demonstrate those skills by coming to work. Id.
Interestingly, the court also observed that " [t]here is a contrary line of cases holding that absenteeism is an ‘impermissible pretext for the employee’s disability’ where the employer is aware that the employee’s ‘absences were related to a disability ...’ " Ramirez v. New York City Board of Education, supra, 481 F.Supp.2d 222. The court reasoned that the Ramirez case was distinguishable because Ramirez did not medically document each of his sick days, and some of his sick days were also attributed to bronchitis, a temporary condition not recognized under the ADA. Id., 222. Similarly, in the present case, Barbabosa did not medically document each of her sick days and some of her sick days were attributable to other ailments or reasons.
In this case, there is abundance of evidence that points to attendance being an important essential function of a paraprofessional. The collective bargaining agreement (CBA) provides a few examples. The CBA provides a clear delineation of the work year and holidays, work hours, and sick leave for full-time paraprofessionals. Def.’s Ex. B, p. 4-5, 8; Pl.’s Ex. 14, p. 4-5, 8. The CBA specifically provides that " [i]f the student to whom a one on one paraprofessional is assigned is absent on any given day, the building administrator or designee shall determine the responsibilities for the one on one paraprofessional for any such day." Id., 4. The CBA also provides that, whenever possible, a pregnant paraprofessional should notify the Director of Human Resources " well in advance of her delivery date, so that the Board can plan appropriate coverage." Id., 9. Additionally, the CBA highlights that when taking a leave without pay, it is expected that leaves will be arranged so that they are taken at the end of the school term. Id., 13. All of these instances discussing attendance serve as evidence that it is an expectation that the paraprofessional will be present at work or obtain proper shift coverage.
The two union presidents, Aaliyah Mahasin-Blade and Kim Colburn, also testified to the importance of attendance. Mahasin-Blade testified that " when you have someone assigned to students and the person doesn’t show up, the student digresses in their behavior and becomes more difficult. And that’s why it’s really critical to have the paraeducators or paraprofessionals to be on the job." Def.’s Ex. C, p. 55-56. Colburn testified that " [Smith] basically told [the plaintiff] that our children need her to be at work because ... as [paraprofessionals], oftentimes we work with very special-needs children; that’s the reason we have a job. And our children- they need that constant consistency. They need that- I’ll give you an example. We just lost a para recently to an autistic child, and in the process of hiring a new person for him, this child, literally screaming, and he, literally, would go into the library and doesn’t remember his lunch number. That’s something he just automatically just punched in the keypad, and he could not- for two weeks, he could not remember his lunch number. He did not have that constant supervision, that constant friend to be with him ... When you take that excessive amount [of absences], there’s a lack of support for the students and they can’t really, you know- it’s like when they go to school, they need to see a familiar face. They need to see teachers there and they need to see the familiar face, but they don’t want to go in there not having that consistency." Def.’s Ex. K, p. 23-24.
Furthermore, in a letter from Edward Dillon, the elementary special education supervisor, to the plaintiff dated May 12, 2008, it is stated that the plaintiff’s absences " can have a negative impact on the academic and behavioral growth of a very impacted kindergarten student in [Manchester’s] district wide program for students with autism." Def.’s Ex. H. In another letter from Smith to the plaintiff dated November 20, 2012, it is articulated that the parties " discussed the importance of [the plaintiff’s] regular attendance at work and the success of students at Robertson Elementary School." Def.’s Ex. L; Pl.’s Ex. 5. Indeed, the plaintiff herself, seems to have understood that attendance was important. In her memorandum in opposition, the plaintiff concedes that the students " need her available and working." Pl.’s Mem. Opp. 14.
Lastly, the evaluations of the plaintiff over the years of her employment as a paraprofessional point to the importance of attendance as well as the plaintiff’s longstanding issues with absenteeism and tardiness. The record before the court contains evaluations from 2007 through 2016. Def.’s Ex. E; Pl.’s Ex. 15. Many of the evaluations contain comments such as: " Diana’s excessive absences continue to affect the management of the teachers’ classrooms. They rely on her during center time, therefore, when she is absent this affects their planning and the lesson negatively"; " Diana must arrive at school on-time. She also must improve her attendance"; " Attendance improved from last year, but still an issue"; " Diana needs to follow her work schedule and be in her designated work area, ready to work, in a timely fashion"; " Diana must improve her attendance"; " very high number of absences"; and, " [h]er attendance/absenteeism have been documented and this is an area requiring improvement. This is especially important in order to provide the consistency and continuity important for the children and the program." Id.
Based on the foregoing, the court finds that the plaintiff’s persistent absence from work precludes her from being considered qualified because attendance is an essential function for employment as a paraprofessional. See Langello v. West Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. CV-10-6011301 (December 27, 2011, Gold, J.), aff’d, 142 Conn.App. 248, 65 A.3d 1 (2013) (" Further compromising the school system’s efforts to promote student learning and development was the [plaintiff teacher’s] frequent absence from the classroom ... While there may have been documented reasons for many of these absences, it is not arbitrary or capricious for the Board to have determined that the plaintiff’s record prevented her from adequately providing an educational experience for her students. Indeed, no other conclusion fairly could be drawn given the undeniable impact on learning that would be occasioned by a teacher’s absence at this staggering rate"). See also Bobrowsky v. New York City Board of Education, United States District Court, Docket No. 97CV874 (FB) (E.D.N.Y. September 16, 1999) (finding teacher not otherwise qualified due to excessive absenteeism; " [t]here could be no reasonable accommodation because attendance is an essential function of her employment."), aff’d, 213 F.3d 625 (2d Cir. 2000)). The plaintiff has not demonstrated that she can perform this essential function. The evaluations of the plaintiff show that she can perform the duties of a paraprofessional when she goes to work, but the plaintiff is absent far too often. To be a qualified individual, " in addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate those skills by attending work on a regular basis." Mescall v. Marra, 49 F.Supp.2d 365, 374 (1999). Moreover, it perplexes this court as to what a reasonable accommodation could be and whether or not it would improve the plaintiff’s attendance record as none of the documented absences were the result of her alleged disabilities. The various reasons the plaintiff cited for missing work included bronchitis, influenza, vacation, and when her son broke his leg. Pl.’s Ex. 8; Def.’s Ex. A, p. 44; Def’s Ex. V. She has requested " finite absences as a reasonable accommodation" and to the extent that this is a request for more days off or perhaps ignoring medically documented sick days when calculating her attendance record, this would be deemed unreasonable as it would eliminate an essential function of the job. " A reasonable accommodation can never involve the elimination of any of an essential job function." Palmieri v. Hartford, supra, 947 F.Supp.2d 201. " Although reasonableness is normally a question of fact, summary judgment may be granted in cases where, as here, the plaintiff’s proposed accommodation would eliminate the essential functions of the job." (Internal quotation marks omitted.) Pierce v. Highland Falls-Fort Montgomery Center School District, supra, United States District Court, Docket No. 08-civ-1948 (RKE).
The complaint states that the plaintiff is looking for " finite absences as a reasonable accommodation" but in her testimony, she seemed confused as to what exactly she was asking for, eventually agreeing with the attorney asking her questions that she is referring to time off requested on an FMLA request. Compl. ¶ 15; Def.’s Ex. A, p. 123-24.
Documented absences were shown to be for the flu; Pl.’s Ex. 8; taking her son to the doctor and bronchitis. Def.’s Ex. V. Other reasons include follow-up visits, sick visits, and general illness; Id.; all of which do not specify what the specific illness was or reason for the visits. They do not show that the visits were disability-related, leaving the court to wonder whether the visits were to treat one of the alleged disabilities or to remedy a common cold.
The plaintiff, in her reply brief, argues that leaves of absence can constitute a reasonable accommodation. She points to four federal cases, which she claims stand for this proposition. After review of these cases, the court finds the plaintiff’s reliance on these cases to be misplaced. They all discuss the importance of the circumstances surrounding a decision as to whether a leave of absence should be granted, and none specifically deal with members of the academic community. In the present situation, the circumstances of a paraprofessional working with students in a school necessitates that professional to be present at the school as the job cannot be done at another location.
See Robert v. Board of County Commissioners, 691 F.3d 1211, 1217-18 (10th Cir. 2012); Fogleman v. Greater Hazelton Health Alliance, 122 F.App’x 581, 585 (3d Cir. 2004); Humphrey v. Memorial Hospitals Assn., 239 F.3d 1128, 1135 (9th Cir. 2001), cert. denied, 535 U.S. 1011, 122 S.Ct. 1592, 152 L.Ed.2d (2002); Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998).
Based on the foregoing, the court concludes that the plaintiff is not qualified for the position of paraprofessional and, therefore, fails to allege a prima facie case of employment discrimination. Accordingly, the defendant’s motion for summary judgment as to count one is granted.
COUNT TWO- ACCOMMODATION
The defendant argues that count two should fail because the plaintiff cannot establish any of the elements of a prima facie case of discrimination. The defendant also argues that the Board is entitled to summary judgment because the plaintiff’s proposed accommodation would have caused an undue hardship. The plaintiff argues that she is disabled; that she can perform the essential functions of her job, with or without a reasonable accommodation; and the defendant knew of the plaintiff’s disabilities and failed to accommodate her. The plaintiff also argues that the defendant’s undue burden argument is unavailing.
The Supreme Court has described the prima facie case for a reasonable accommodation claim as the following: " In order to survive a motion for summary judgment on a reasonable accommodation claim, the plaintiff must produce enough evidence for a reasonable jury to find that (1) [she] is disabled within the meaning of the [statute], (2) [she] was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiff’s] disability, did not reasonably accommodate it ... If the employee has made such a prima facie showing, the burden shifts to the employer to show that such an accommodation would impose an undue hardship on its business." (Citations omitted; internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415-16.
This court has found that the plaintiff was disabled within the meaning of the statute. This court has also found that the plaintiff is not qualified. Because liability for a failure to accommodate claim requires proof that an employee is " otherwise qualified" for the position; Hutchinson v. Ecolab, Inc., United States District Court, Docket No. 3:09CV 1848 (JBA) (D.Conn. September 28, 2011); and the plaintiff in this case did not show that she could meet all of the essential functions of the paraprofessional position, she failed to show that she was qualified. For these reasons, the defendant’s motion for summary judgment as to count two is granted.
III
COUNT THREE- RETALIATION
The defendant argues that it is entitled to summary judgment as to count three because the plaintiff cannot establish that she engaged in protected activity under the CFEPA; that aside from the suspension, the plaintiff cannot establish that she suffered an adverse employment action; that the plaintiff cannot establish the requisite causal connection; and, that the Board had a legitimate, non-discriminatory reason for suspending the plaintiff. The plaintiff failed to address any of these arguments in their memorandum in opposition. The defendant, in its reply brief, argues that because of this failure to address the arguments, the plaintiff has abandoned her retaliation claim.
" [The Supreme Court] repeatedly [has] stated that we are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court." (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept . of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
In the present case, the plaintiff does not give any attention or provide any authorities regarding her claim for retaliation in her memorandum of opposition. Indeed, the plaintiff has failed to make any arguments on behalf of her retaliation claim, let alone address the defendant’s arguments as to why summary judgment should be granted. As such, the plaintiff has abandoned her retaliation claim and, therefore, the defendant’s motion for summary judgment as to count three is granted.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment as to the plaintiff’s three-count complaint is granted.