Opinion
HHDCV146049408S
11-23-2015
Jason Cavanaugh v. Suburban Sanitation Service, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Grant H. Miller, J.
The defendant has moved for summary judgment in this action brought by its former employee, Mr. Cavanaugh, who alleges that defendant subjected him to several adverse employment events, up to and including termination of employment, because he requested disability related accommodations, in violation of the Connecticut Fair Employment Practices Act. Plaintiff further alleges that he suffered adverse employment action, including termination of employment, because he filed an application for Workers' Compensation Benefits, pursuant to Conn. Gen. Stat. § 31-290a et seq.
Conn. Gen. Stat. § 46a-60 et seq.
Defendant has moved for summary judgment as to plaintiff's entire complaint, advancing two arguments against the First Count and one against the Second Count. For the following reasons, the motion is denied in its entirety.
Count One--Disability Discrimination
Pursuant to General Statutes § 46a-58(a), " It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of . . . physical disability." Likewise, pursuant to General Statutes § 46a-60(a)(1), it is a discriminatory practice " [f]or 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 . . . physical disability . . ."
Where a plaintiff asserts a claim of disability discrimination, under the burden-shifting analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), " the employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012).
" 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 factfinder . . . 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 . . . To establish a prima facie case of discrimination in the employment context, the plaintiff must present evidence that: (1) she belongs to a protected class; (2) she was subject to an adverse employment action; and (3) the adverse action took place under circumstances permitting an inference of discrimination." (Citation omitted; internal quotation marks omitted.) Id., 513-14.
With respect to the disability discrimination count, the defendant argues that the plaintiff admitted that the defendant was not aware of his alleged disability and thus cannot establish a prima facie case of discrimination because there is no evidence that the defendant discriminated against him. The plaintiff argues that he has established a prima facie case of discrimination and that the defendant does not dispute that the plaintiff is disabled under CFEPA. The plaintiff argues that he has been diagnosed has having a permanent partial impairment of the lumbar spine resulting from his workplace injury, and thus he is clearly disabled and belongs to a protected class. Second, the plaintiff was subject to several adverse employment actions following his workers' compensation claim and medical leave; he was laid off, suspended and ultimately terminated from employment. Third, the plaintiff contends that the sequence of events leading up to his termination create an inference that he was wrongfully terminated.
A genuine issue of material fact exists as to whether the defendant or the plaintiff's supervisor, Russell Theus (Theus), knew the plaintiff became disabled during his employment. The defendant alleges that the plaintiff has produced no evidence that the defendant or Theus, had knowledge of his alleged disability because the plaintiff returned to work with a medical release to return to full duty status without any restrictions five months before he was terminated. The defendant alleges that it could not have been aware of the plaintiff's disability before it terminated him because he did not receive a diagnosis with a permanent disability rating until after his termination of employment. Furthermore, the defendant alleges that even accepting as true the plaintiff's claim that Mr. Theus was aware of, at most, the plaintiff's medical appointments related to his October 2012 injury, the last doctor's appointment that the plaintiff attended prior to his termination was on January 8, 201[3], more than three months prior to his termination." (Defendant's Memorandum of Law in Support of Motion for Summary Judgment, p. 17.)
To the contrary, the plaintiff argues that there is ample evidence in the record that the defendant was aware and had knowledge of the plaintiff's disability. The plaintiff alleges that the defendant understood the plaintiff to have a disability at the time it separated him from employment because of his workplace injury and the accommodations he requested. The plaintiff alleges that it was common knowledge among the defendant's staff at the East Hampton and Canton offices that he had a back injury. Indeed, the defendant was aware of the plaintiff's ongoing treatment for his back injury through the Workers' Compensation System. Furthermore, the plaintiff's doctor's letter dated October 8, 2012, which Theus received, states that the plaintiff is " totally disabled from today for an undetermined period." (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, Exhibit 7.) When the plaintiff returned from medical leave, Theus allegedly singled him out and treated him with hostility, including calling him names like " a useless truck driver" and " stupid." The plaintiff contends that these discriminatory comments are sufficient to demonstrate awareness of a disability.
The plaintiff alleges that during the winter in question, Theus sent him out alone to clean septic tanks, whereas in the past, it was his practice to send two cleaners out to each job because it was much more difficult to dig frozen ground and clean tanks in freezing temperatures. In February 2012, Theus announced to his three drivers and septic cleaners that they would need to be laid off on a rotating basis. These employees were told that each of them would be laid off for two weeks. The plaintiff was selected as the first to be laid off in March 2013. During the second week of the plaintiff's layoff, Theus informed him that he would be laid off for a third week. The other two drivers were never laid off. During the plaintiff's six years of employment with the defendant he had never before been laid off during the winter season.
In spite of the evidence submitted, questions of fact exist with respect to the defendant's awareness of the plaintiff's disability and the defendant's true motivation for terminating the plaintiff. " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " 'Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). " [S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). " A question of intent raises an issue of material fact, which cannot be decided on a motion for summary judgment." Picataggio v. Romeo, 36 Conn.App. 791, 794, 654 A.2d 382 (1995).
The papers contain many statements made by the plaintiff and by Mr. Theus, in deposition testimony and affidavits, which are in conflict. Many of the facts alleged in this case are disputed and cannot be resolved on a motion for summary judgment. It is not up to the court to decide whom to believe. For these reasons, the defendant's motion for summary judgment as to count one of the plaintiff's complaint is denied.
COUNT ONE--EXHAUSTION OF ADMINISTRATIVE REMEDIES
The defendant further argues that the plaintiff's claims are barred because he did not timely file a claim with the CHRO to exhaust his administrative remedies with respect to his alleged request for a reasonable accommodation. The defendant alleges that the plaintiff's request for a reasonable accommodation, a light duty work release, was denied on or about October 22, 2012, more than 200 days before the plaintiff's charge of discrimination was filed with the CHRO. The plaintiff counters that the defendant relies on an incorrect and unsupported analysis of when the 180-day time period for a Connecticut Fair Employment Practices Act (CFEPA) claim commences. The plaintiff alleges that he made subsequent requests for reasonable accommodations, such as when he asked for time off for medical appointments.
" CFEPA does not provide an unconditional private right of action for plaintiffs, who must exhaust the administrative requirements against the parties named in the complaint . . . That is to say, plaintiffs are bound to follow Conn. Gen. Stat. § 46a-82, whereby they must file a complaint with, and receive a release of jurisdiction from, the CHRO before bringing suit in court . . . A CHRO complaint must be filed within one hundred and eighty days after the alleged act of discrimination . . ." (Citations omitted; internal quotation marks omitted.) Dembinski v. Pfizer, Inc., 628 F.Supp.2d 267, 271 (D.Conn. 2009).
The plaintiff filed his CHRO complaint on May 23, 2013 and was issued a Release of Jurisdiction from the CHRO on or about January 15, 2014. Consequently, any factual allegations that occurred prior to the 180-day time period--before November 25, 2012--cannot be used to support the plaintiff's discrimination or retaliation claims. The earliest incident that is timely is when the plaintiff was laid off from work on March 4, 2013. The allegation regarding the plaintiff's request for light duty work release as a reasonable accommodation was allegedly denied on or about October 22, 2012, and is therefore, allegedly, time-barred. The plaintiff's request for leave for medical appointments as a reasonable accommodation was included in the plaintiff's CHRO complaint, through his affidavit; however, no date was given at that time. The plaintiff stated that he was " discriminated against in the terms/conditions of employment"; however, he did not include a date. (Defendant's Memorandum of Law in Support of Defendant's Motion for Summary Judgment, Exhibit 4.)
" A [trial] court may hear time-barred . . . CFEPA claims that are based on conduct subsequent to the administrative charge which is reasonably related to conduct alleged in the administrative charge . . . There are three types of claims that courts will find are reasonably related to [those] asserted in an administrative filing: (1) claims where the conduct complained of would fall within the scope of the administrative investigation; (2) claims alleging retaliation by an employer against an employee for filing an administrative charge; and (3) claims where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the administrative charge." (Citations omitted; internal quotation marks omitted.) Dembinski v. Pfizer, Inc., supra, 628 F.Supp.2d 272-73. " [T]he requirement to exhaust administrative remedies under the CFEPA is satisfied with respect to retaliation claims if the claim is reasonably related to the allegations of discrimination that were previously filed with the commission on human rights and opportunities." Tatro v. Cascades Boxboard Group Connecticut, LLC, Superior Court, judicial district of New London at New London, Docket No. CV-09-4009597-S (April 22, 2010, Martin, J.).
It is at least arguable that the plaintiff's requests for light duty work and medical appointments as reasonable accommodations fall under the first category of reasonably related claims, " where the conduct complained of would fall within the scope of the administrative investigation." Dembinski v. Pfizer, Inc., supra, 628 F.Supp.2d 272. These allegations were included in the plaintiff's affidavit, as well as in his CHRO papers. The plaintiff's requests arguably fall within the scope because he was laid off, suspended, and ultimately terminated, and the denied requests could be viewed as part of a sequence of acts of discrimination against the plaintiff. This court finds that, viewing this evidence in the light most favorable to the plaintiff, these claims are reasonably within the scope of the administrative investigation and are not time barred for purposes of this motion.
COUNT TWO--RETALIATION UNDER THE WORKERS' COMPENSATION ACT
General Statutes § 31-290a makes it illegal for an employer to fire or otherwise discriminate against an employee who has filed a claim for workers' compensation benefits. Defendant has moved for summary judgment on this claim because it maintains that plaintiff cannot, as a matter of law, prove a causal connection between his claim for workers' compensation benefits and his loss of his job.
The court respectfully disagrees with the defendant. The record before the court at this time indicates that a jury could reasonably and legally find that Mr. Theus engaged in conduct intended to discourage plaintiff from seeking workers' compensation benefits and then acted in a way which could be found to be retaliatory toward plaintiff for pursuing such benefits. In other words, the court has determined that plaintiff has established a prima facie case on plaintiff's claim under § 31-290a.
The burden now shifts to the defendant to show that its reasons for terminating the plaintiff's employment were legitimate and not a pretext for discrimination. In order to do this, in view of the record now before the court, the court would have to resolve disputed issues of fact, which is not the court's role.
The motion for summary judgment is also denied as to the second count.