Opinion
CV156017660S
03-01-2017
Mary Lopresti v. Norwalk Public Schools
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Theodore R. Tyma, J.
The plaintiff, Mary LoPresti, brings this action against the defendant, Norwalk Public Schools. The action arises from the plaintiff's retirement from her long-time teaching position in the school system.
On January 12, 2015, the plaintiff filed a four-count complaint and alleges the following facts. First, the defendant discriminated against her in violation of General Statutes § 46a-60(a)(1) of the Connecticut Fair Employment Practices Act (CFEPA), among other things. Second, she was wrongfully discharged under the common law in violation of the public policy of Connecticut in that the defendant failed to provide her with a reasonably safe place to work, and a workplace free from hazards likely to cause serious physical harm, as embodied in General Statutes § § 31-49 and 31-370. Third, the defendant is liable to her for intentional infliction of emotional distress, and fourth, the defendant's actions toward her violate § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Rehabilitation Act).
That statute provides in relevant part: " (a) It shall be a discriminatory practice in violation of this section:
The defendant moves for summary judgment on all four counts for the following reasons: (1) There is no genuine issue of material fact that the plaintiff's discrimination claim under state law is barred by the applicable statute of limitations; (2) the plaintiff is precluded from maintaining a common-law wrongful discharge claim because she has a statutory remedy, and, even if she could maintain the claim, there is no genuine issue of material fact that the plaintiff was not discharged from her employment for refusing to work in an objectively unsafe work environment; (3) there is no issue of material fact that the defendant's conduct does not meet the legal elements constituting an action for intentional infliction of emotional distress; and (4) there exists no genuine issue of material fact that the plaintiff has failed to establish a prima facie case of discrimination under federal law. In support of its motion, the defendant submits excerpted pages from the plaintiff's deposition; an affidavit of Ivette Ellis, principal of the school since 2008, along with related documents; an affidavit of Robert Dylewski, interim human relations officer for the defendant, along with the applicable collective bargaining agreement; and other miscellaneous documents.
The plaintiff filed a memorandum in opposition to the summary judgment motion, along with supporting documentation. Therein, the plaintiff claims that she exhausted her administrative remedies by filing her complaint with the state Commission on Human Rights and Opportunities (commission), and, further, has established a prima facie case of discrimination as there is evidence that " Ellis . . . deliberately disregarded the plaintiff's accommodation requirements despite her specific knowledge that the plaintiff had a known disability and an accommodation for that disability." The plaintiff contends that her claim that the defendant failed to maintain a reasonably safe workplace as mandated by § § 31-49 and 31-370 is legally sufficient, and there remains material factual issues to be resolved on that claim as to whether " the building is highly contaminated by mold, " causing or aggravating the plaintiff's physical disability resulting in her retirement. The plaintiff further asserts that there are genuine issues of material fact to be resolved at trial as to the legal elements necessary to prove her claim for intentional infliction of emotional distress. Finally, the plaintiff claims that she has established a prima case of discrimination in support of her claim that the defendant's actions violate the Rehabilitation Act. The plaintiff has submitted copies of her complaint filed with the commission; excerpted pages from her deposition; a copy of her resume; excerpted pages from the deposition of Dr. John Santilli, the plaintiff's allergist, along with his report dated October 22, 2015; and a copy of an investigation report concerning the alleged poor air quality at the school.
The following facts in the record are relevant to a determination of the present motion. The plaintiff was employed by the defendant as a music teacher beginning in 1998. She was assigned to Silvermine Elementary School for the 2003-2004 school year, and remained at the school until her retirement on February 28, 2013, due to a physical disability. The defendant assigned the plaintiff her own classroom at Silvermine to teach music from the time she began teaching at the school through the 2011-2012 school year. In September 2008, the plaintiff went to Dr. Santilli complaining of certain medical conditions, including vocal, respiratory, and sinus problems, which he believed were related to mold exposure at Silvermine. In a letter to the defendant dated October 6, 2008, Dr. Santilli recommended that the plaintiff " have a HEPA air cleaner in her classroom, air conditioning and a window for ventilation." Dr. Joshi made the same recommendation to the defendant in a letter dated September 7, 2010.
Prior to those letters, the plaintiff had been assigned for some years to an interior classroom, which had no exterior window. The defendant provided the plaintiff with a classroom with the requested accommodations during the school years 2009-2012. For example, during the spring term of 2012, the plaintiff was assigned to a classroom that had an exterior window, an air conditioner, and an air filter. Dr. Santilli treated the plaintiff for her alleged mold-related health conditions from 2008 through the latter part of 2012. During the plaintiff's course of treatment in 2008, Dr. Santilli recommended that the plaintiff cease employment with the defendant, but the plaintiff did not accept the recommendation at the time because " she was too devoted to her children and students."
Ellis states she was informed in the spring of 2012 that due to an increase in the student enrollment the following school year, every teacher would not be guaranteed their own classroom. Ellis decided that the music program was the " best option for traveling from classroom to classroom, " and informed the plaintiff in the spring of 2012 that she would use a cart for her music materials and resources during the 2012-2013 term and required her to travel to various classrooms to teach. Consequently, Ellis did not provide the plaintiff with a designated classroom to teach music to students. Additionally, a storage area was converted into office space for the plaintiff's use. That area lacked an exterior window, air conditioner, and air filter. The plaintiff cooperated with Ellis concerning her teaching assignment for the 2012-2013 term because she " did not want to make waves, " and " was concerned with finishing the school year." The plaintiff testified in her deposition, however, that after being informed that she was assigned to a travel cart to teach music, she spoke at some undefined time with Ellis about being reasonably accommodated for her mold-related conditions. The plaintiff taught music to her students using the cart from the beginning of the school year through November 29, 2012. On November 30, 2012, the plaintiff used her second sick day that school year, and never actively returned to her employment with the defendant.
On December 3, 2012, the plaintiff visited Dr. Santilli to apply for a disability retirement from the Teachers' Retirement Bureau (TRB). Dr. Santilli assisted her in completing her application, and the plaintiff filed it with the TRB. Dr. Santilli recommended that the plaintiff remain out of work as of December 11, 2012, due to conditions related to mold exposure. On December 13, 2012, the plaintiff sent an e-mail to Ellis informing her that she was suffering from " serious medical conditions, " and it was " doctor's orders" that she stay out of " work until further notice." On February 1, 2013, Ellis sent an e-mail to the plaintiff stating that Ellis learned for the first time that day that the plaintiff was in the process of retiring due to a disability. The plaintiff sent a reply e-mail on February 3, 2013, confirming her retirement plans. In a letter dated February 4, 2013, the plaintiff informed the defendant that she was retiring from her position, " effective February 28, 2013, " due to a physical disability, and requested that she be awarded discretionary continued health insurance under Article XXX1c of the operative Comprehensive Group Contract between the board and the Norwalk Federation of Teachers.
The TRB acted favorably on the plaintiff's application. At its regularly scheduled meeting on February 19, 2013, the Norwalk Board of Education (board) approved the plaintiff's application for an early retirement based on a physical disability, effective February 28, 2013. Additionally, at their regularly scheduled meeting on April 2, 2013, the board denied to provide the plaintiff with continued health insurance coverage, which was effective March 31, 2013. The board also provided the plaintiff with information concerning the possibility of obtaining continued benefits under federal law. The plaintiff remained out of work from her sick day on November 30, 2012, to her effective retirement date. The present litigation ensued. Additional facts will be discussed as necessary.
Before addressing the issues raised in the defendant's motion, the court sets forth the law governing summary judgment. " The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. 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 . . .
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . .
" The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn.App. 638, 645-46, 127 A.3d 257 (2015).
I
STATE LAW DISCRIMINATION CLAIM
The plaintiff brings the first count under CFEPA, which precludes discriminatory employment practices in this state. The defendant's motion for summary judgment on the first count is solely predicated on its contention that CFEPA contains a limitation of action that provides that claims of discrimination must be filed with the commission within 180 days of the date of the alleged illegal act. See General Statutes § 46a-82(f). The defendant asserts, therefore, that the plaintiff may only make allegations of discrimination based on adverse employment actions occurring on or after January 12, 2013. The defendant claims that the only adverse employment action occurring during that time period was the defendant's denial on April 2, 2013, of the plaintiff's application for continued health benefits upon her retirement, and that there is no evidence " that the board's denial of her request for continued health benefits was discriminatory."
The plaintiff responds that the adverse act is the defendant's failure to reasonably accommodate her physical disability during the entirety of the 2012-2013 school year, or at least until her effective retirement date. More particularly, the plaintiff argues that " the defendant unlawfully discriminated against the plaintiff when it eliminated her classroom, and undertook to alter her work conditions, in a manner which exacerbated her medical conditions."
Although the plaintiff alleges in her complaint that " [o]n February 19, 2013, the defendant approved the plaintiff's request for retirement but denied her request for the continued medical insurance coverage which is routinely granted to teachers forced to take early retirement through no fault of their own, " the plaintiff neither-briefed nor argued the issue. " [The court] is 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." (Citations omitted; internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn.App. 657, 659 n.2, 778 A.2d 237 (2001). In the present case, the plaintiff's memorandum of law in opposition to the defendant's motion is totally devoid of any legal analysis or argument in furtherance of her allegation concerning the denial of continued health insurance. Therefore, to the extent that the plaintiff claims that such denial was the result of discriminatory bias, it is considered abandoned. See Kelib v. Connecticut Housing Finance Authority, 100 Conn.App. 351, 353, 918 A.2d 288 (2007) (" Here, the plaintiff's brief consists of a statement that the court improperly granted the defendant's motion to strike, a recitation of the relevant procedural facts and a statement regarding the applicable standard of review. The brief, however, is bereft of any meaningful legal analysis. Nowhere does the plaintiff set forth the elements of a cause of action for an employment discrimination claim. Nor does he provide any analysis in support of his bare claim that the complaint was legally sufficient. Rather, in the legal analysis section of his brief, the plaintiff simply repeats the allegations of his complaint without providing any framework for an assessment of its adequacy. Lacking any meaningful analysis or argumentation, the plaintiff's brief provides this court an insufficient basis for appellate review"). Moreover, even if the court was to consider this claim, there is no evidence in the record to support it. For example, there is no evidence that any other similarly situated teacher had their requested retirement healthcare benefits denied, or that the defendant acted with discriminatory animus in exercising its contractual discretion in denying the benefits. Also, the defendant produced evidence that the plaintiff was not the only teacher granted a disability retirement to also have her request for continued healthcare denied. As a result, the court will only consider the first two claims by the plaintiff in deciding whether there exists a genuine issue of material fact as to whether the plaintiff has established a prima facie case of discrimination. The court will discuss the second claim that the defendant discriminated against the plaintiff by failing to maintain a safe workplace in part IV of its decision.
A person claiming to be aggrieved by an alleged discriminatory practice must initially file a complaint with the commission. General Statutes § 46a-82(a). " Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ." Section 46a-82(f). " In determining when an alleged act of discrimination occurred, the commission shall consider the following factors: (1) The date or dates on which the alleged act or acts of discrimination occurred; (2) The date on which the complainant knew or reasonably should have known that the alleged act or acts of discrimination occurred; and (3) The date on which the complainant knew or reasonably should have known that the alleged acts may have constituted discrimination." Regs., Conn. State Agencies § 46a-54-34a(b).
" Our Supreme Court scrutinized § 46a-82(e) in Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 777 A.2d 645, aff'd after remand, 67 Conn.App. 316, 786 A.2d 1283 (2001), and concluded that the time limit contained therein is not subject matter jurisdictional . . . but rather operates as a statute of limitations . . . The court explained: [T]he failure to meet the 180 day time limit in § 46a-82(e) is [not] without consequence . . . [I]f a time requirement is deemed to be mandatory, it must be complied with, absent such factors as consent, waiver or equitable tolling. Thus, a complaint that is not filed within the mandatory time requirement is dismissible unless waiver, consent, or some other compelling equitable tolling doctrine applies." (Citations omitted; internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 194, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).
The plaintiff filed her discrimination complaint with the commission on July 15, 2013, and was subsequently given a standard form Release of Jurisdiction dated October 7, 2014. Based on those undisputed procedural facts, the parties agree that any actionable discrimination had to occur on or after January 12, 2013, which is 180 days prior to the filing of her complaint with the commission.
The copy of the complaint that the plaintiff filed with the commission is stamped as being received on July 15, 2013, notwithstanding the defendant's statement that it was filed on July 11, 2013. The complaint was dated July 11, 2013, but filed four days later. Nevertheless, in the original memoranda filed by the parties, both parties agreed that the operative date for the 180-day time period was January 12, 2013. Because a discrepancy of a few days does not affect the outcome of the present motion, the court will use January 12, 2013, as the operative date. In a supplemental memorandum, the plaintiff argues that the 180 days commences on her actual last date of employment. The court will address that contention later on in this decision.
In its memorandum in support of summary judgment, the defendant contends, based on the plaintiff's complaint and deposition testimony, that the plaintiff's claims that the defendant discriminated against her by failing to maintain Silvermine in a safe condition and in assigning her to a teaching cart rather than continuing to accommodate her disability by assigning her to her own classroom with the necessary accommodations. The defendant claims that its alleged failure to safely maintain Silvermine, and failing to make reasonable accommodations for her physical disability during the 2012-2013 school term, are conduct that occurred while the plaintiff was actively working at the school and, as a result, do not fall within the 180 days of the date that the plaintiff filed her complaint with the commission. The defendant argues that the plaintiff's last day of work was November 29, 2012, and the defendant's conduct against the plaintiff occurred on or before that date. The defendant contends that those allegations are beyond the statute of limitations and thus legally precluded.
A fair reading of the plaintiff's complaint, illuminated by her legal memoranda and supporting documents, and viewing the evidence in the light most favorably to her, demonstrates that the plaintiff's discrimination claims are grounded in her allegations that the defendant effectively terminated her employment and compelled her to retire because it failed to continue to reasonably accommodate her mold-related disability by providing her with her own classroom during the 2012-2013 school year. The plaintiff contends that there is a triable issue as to a prima facie case of discrimination because there is sufficient evidence as to whether the defendant failed to reasonably accommodate her known disability. The plaintiff claims that she has submitted evidence that the defendant " deliberately disregarded the plaintiff's accommodation requirements" despite knowing about her mold-related disability.
The plaintiff asserts that she " was employed by the defendant through February 2013, " and that the " defendant unlawfully discriminated against [her] when it eliminated her classroom, and undertook to alter her work conditions in a manner which exacerbated her medical condition." Specifically, the plaintiff claims that " Ellis, acting on-site at Silvermine Elementary School as the representative for the [defendant], deliberately disregarded [her] accommodation requirements despite her specific knowledge that [she] had a known disability and an accommodation for that disability." The plaintiff has also submitted selected pages from the transcript of the plaintiff's deposition. The plaintiff testified therein that Ellis discriminated against her " [b]ecause she did not make the medical accommodations that were requested by [her] doctor. And, in addition, [Ellis] did not fight for the remediation of the school building." More particularly, the plaintiff stated that " [t]he discrimination was not from being put on a cart. However, my doctor specifically requested on more than one occasion that I have a room with a window, suitable air conditioner for that room, and a HEPA filter. That was not provided me." The plaintiff did not file a grievance concerning her 2012-2013 teaching assignment.
In the present case, the dispositive issue is whether the adverse act, which is shown by the evidence to be the defendant's action in assigning the plaintiff to a teaching cart for the school year and taking away her own classroom having the necessary accommodations, occurred on or after the operative 180-day date of January 12, 2013. The defendant claims that the plaintiff's action is untimely and precluded, as the adverse employment actions took place well before that date.
Based on the record, the court concludes that there is no genuine issue of material fact that the adverse action on which the plaintiff's discrimination claim is grounded occurred before January 12, 2013. At the end of the 2011-2012 school year, Ellis informed the plaintiff that she would not be assigned her own classroom with accommodations for the upcoming 2012-2013 term. The undisputed evidence shows that the plaintiff never again returned to work after November 29, 2012. The next day she took a sick day, and a few days later went to Dr. Santilli, who assisted her in the process of applying for a disability retirement. Dr. Santilli informed the defendant that the plaintiff was to remain out of work for an indefinite time due to exposure to mold. The plaintiff officially retired in February 2013.
The only evidence presented shows that any adverse employment actions occurred at a time between the end of the 2011-2012 school year and the last day the plaintiff worked as a teacher on November 29, 2012. The plaintiff knew or reasonably should have known during that time period that the defendant's acts and omissions may constitute discrimination. The plaintiff's complaint was filed more than 180 days from that time period. It is undisputed that, as demonstrated by Dr. Santilli's letter dated December 3, 2012, the plaintiff was not returning to work and was applying for a disability retirement. In view of the foregoing, the plaintiff's discrimination claims contained in the first count are barred by the applicable statute of limitations. Therefore, the defendant's motion for summary judgment is granted on the first count.
In her supplemental memorandum filed in opposition to summary judgment, dated November 16, 2016, the plaintiff claims that the 180-day period runs from her actual last day of employment with the defendant, and, when viewed through the light of that prism, the present action is not barred by the limitation of action. The plaintiff cites to the case of Vollemans v. Town of Wallingford, supra, 103 Conn.App. 188. In Vollemans, our Appellate Court held " that the filing period contained in § 46a-82(e) commences upon actual cessation of employment, rather than notice thereof." (Footnote omitted.) Id., 219. The court agrees with the defendant that this case is factually distinguishable from the Vollemans case. The plaintiff in Vollemans claimed that he was terminated by the defendant because of his age in violation of CFEPA. Id., 191. Here, the plaintiff claims that the defendant discriminated against her because it failed to reasonably accommodate her mold-related disability, and that she was " forced" to retire. In Vollemans, the alleged discriminatory practice was the defendant's termination of the plaintiff's employment because of age, and the legal question was when " discharge from employment" occurs for purposes of calculating the limitation of action period contained in § 46a-82(e). Id., 195. Because this is not a termination of employment case, but a case involving a claim of a failure to provide a reasonable accommodation and the plaintiff's subsequent retirement, Vollemans does not apply to the present action. See Dumas v. Bridgeport Board of Education, Superior Court, judicial district of Waterbury, Docket No. CV-05-4005258, (January 11, 2008, Upson, J.) (" The Vollemans case specifically deals with the question of whether the 180-day statute of limitations period begins to run when an employee receives notice of a future termination or on an employee's final day of work. Therein, the plaintiff was arguing that his final day of employment constitutes the discriminatory act from which the 180 days begins to run. The present case can be distinguished because Dumas was not terminated by his employer, but, instead, submitted his retirement papers. Although Dumas claims this voluntary retirement constitutes a constructive discharge, the Vollemans case can be distinguished because this situation does not involve an unequivocal notice of termination").
II COMMON-LAW WRONGFUL DISCHARGE
In the second count, the plaintiff claims that she was wrongfully terminated from her employment as a result of the defendant's failure to provide a safe working environment in violation of the public policy set forth in § § 31-49 and 31-370. The defendant moves for summary judgment contending that the plaintiff cannot pursue a common-law wrongful discharge claim based on statutory violations because the plaintiff has a statutory remedy that precludes wrongful discharge claim as a matter of law, and the holding in Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), is not applicable.
The plaintiff alleges in her complaint that " the defendant intentionally and maliciously has exposed the plaintiff and other teachers and students to a highly dangerous environment over many years, and continues to do so at the present time, thereby inflicting grave physical illness upon the victims. The defendant has been aware for many years of the dangers presented by . . . Silvermine . . . but consciously has concealed these dangers from the plaintiff, other teachers and students and their parents, thereby knowingly placing their health and welfare at great risk." In her memorandum in opposition to summary judgment, the plaintiff characterizes her action as follows: " In count two, the plaintiff raises a claim pursuant to . . . § § 31-49 and 31-370, further articulated by the Connecticut Supreme Court in Parsons. This specific claim is based upon the public policy and the established statutory duty that an employer has the responsibility to provide its employees with a reasonably safe workplace."
In support of this argument, the plaintiff has submitted the complaint that she filed with the commission on July 15, 2013. Therein, the plaintiff alleges that the Silvermine building is contaminated by mold, and that in October 2008, she was diagnosed as being highly allergic to mold. That same month, Dr. Santilli recommended to the defendant that the plaintiff have a HEPA filter in her classroom, an air conditioner, and a window for ventilation. The defendant provided the plaintiff with those accommodations. The plaintiff alleges that " in August 2012, [she] was deprived of any classroom and was required to teach music throughout the building using a cart." The plaintiff claims that during the time she worked during the 2012-2013 school year, she was physically suffering from exposure to mold in the building due to the defendant's " continuing refusal to accommodate" her physical disability. The plaintiff alleges that she was " forced" to apply for an early retirement based on her disability.
The plaintiff has also submitted a document titled " Narrative, " purportedly concerning an inspection on August 7, 2013, of Silvermine based on complaints of " severe mold contamination." The document does not indicate who drafted it and who performed the inspection, or provide any other information as to its authenticity. Additionally, the plaintiff submitted excerpted pages of Dr. Santilli's deposition, and a report dated October 15, 2015, wherein he comments on the plaintiff's exposure to mold at Silvermine.
The plaintiff does not explicitly allege in her complaint, or argue in opposition to the present motion, that she was an at-will employee who was wrongfully terminated by the defendant in violation of the public policy drafted by our legislature in the foregoing statutes governing workplace safety, or claim that she is asserting a private cause of action under those statutes. However, a fair reading of the complaint, viewed through the prism of the plaintiff's allegation that the defendant's conduct toward her violated the public policy embodied in § § 31-49 and 31-370, and the law set forth in Parsons, compels the court to construe the allegations of the second count of the complaint as stating a wrongful discharge claim by an at-will employee.
Section 31-49 provides in relevant part that " [i]t shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work . . ." Section 31-370(a) provides in relevant part that " [e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . ." The plaintiff claims that the defendant failed to provide her with a reasonably safe workplace in violation of the public policy embodied in the foregoing statutes governing workplace safety.
Our Supreme Court has articulated the public policy underlying the two statutes at issue governing workplace safety. " As a result of our careful review of the language, history, and public policy underlying [§ § 31-49 and 31-370], we conclude that this body of law expresses a clear and defined public policy requiring an employer who conducts business in Connecticut to provide a reasonably safe workplace to its employees . . . Both § § 31-49 and 31-370 reflect a broad legislative concern for the physical welfare and safety of Connecticut employees. Consequently, we are persuaded that the mandate of public policy that these statutes embody gives a Connecticut employee a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee's duties." (Citation omitted; footnote omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 79-80. The plaintiff alleges in her complaint, and argues in her memorandum of law, that the action in the second count is based on the defendant's violations of § § 31-49 and 31-370, as interpreted by the court in Parsons. In that case, the plaintiff, a former at-will employee of the defendant, brought an action for, among other claims, wrongful discharge premised on the defendant's alleged violation of the public policy embodied in § § 31-49 and 31-370. Id., 67. During the course of the plaintiff's employment, the defendant assigned him to provide equipment instruction at a military base in Bahrain at the time military action was taking place, and a travel advisory was issued concerning that country. Id., 69. The plaintiff refused his assignment in Bahrain " because of the perceived threat to his health, safety and welfare . . ." Id., 70.
The trial court (Ford, J.) granted the defendant's motion to strike the plaintiff's wrongful termination count. Id., 72. The plaintiff appealed the striking of that count, and, on appeal, the Court considered the issue of " whether the plaintiff properly alleged facts sufficient to state that his discharge constituted a wrongful termination in violation of the safe workplace public policy." Id., 82. The court concluded that " [u]nder these circumstances, common sense and human experience dictate that the plaintiff's assignment to Headquarters, could pose a significant threat to the plaintiff's safety and welfare. The State Department travel advisory, coupled with the widely known perilous situation in the Persian Gulf at the time of the plaintiff's discharge, leads us to conclude that the plaintiff's complaint clearly alleged facts that, taken as a whole and considered in the light most favorable to the plaintiff, are sufficient to establish that the plaintiff was terminated for refusing to follow an employer's directive that would have posed a serious threat to the plaintiff's health and safety and that was not contemplated within the scope of his employment duties." (Emphasis added.) Id., 85-86.
Parsons is distinguishable from the present action. Here, the plaintiff has not alleged in her complaint that she notified the defendant that she refused to work under the conditions that posed a serious threat to her health and safety, and that are not contemplated within the scope of her teaching duties. The plaintiff alleges that she was " forced to take early retirement" because of her disability, and has offered evidence in support of that allegation. But there is no evidence that the plaintiff informed the defendant that she refused to work under the conditions existing in Silvermine, and that the defendant discharged her from her teaching position as a result. The evidence demonstrates the opposite, that is, the plaintiff cooperated with Ellis in her new assignment for the 2012-2013 school year until she decided to apply for early retirement.
The court agrees with the defendant that the plaintiff has a statutory remedy under § § 31-49 and 31-370, and, therefore, is precluded from bringing a cause of action for wrongful discharge. The facts of the present action are similar to those in Perez v. Bridgeport Hospital, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6009423-S (August 3, 2012, Matasavage, J.) [54 Conn.L.Rptr. 417, ]. In that case, the plaintiff alleged that the defendant wrongfully terminated him for reporting that he was threatened with physical violence by a coworker, and " that the defendant failed to provide a safe work environment and one safe from hazards, in violation of [General Statutes] § 31-49 and § 31-370(a), which violates a public policy of this state." Id.
The defendant moved to strike the wrongful discharge count contending that there was a statutory remedy for the violations, which precludes the action for wrongful discharge under the common law. Id. The court granted the defendant's motion reasoning as follows: " In the first count of his complaint, the plaintiff alleges a violation of [General Statutes] § 31-49, in that the defendant failed to provide a reasonably safe work environment for its employees. The defendant rightly points out that the legislature provided a statutory remedy for such violation in [General Statutes] § 31-50. Since a remedy is provided by statute for a violation of § 31-49, an employee may not pursue a common-law cause of action in wrongful discharge for such violation. Likewise, a remedy for a violation of [General Statutes] § 31-370 is found in [General Statutes] § 31-374 et seq., where the labor commissioner is authorized to enter, investigate, and undertake enforcement on an employer who fails to provide a place of employment free from hazards.
" Since a remedy has been provided by the legislature for both alleged violations of statute and public policy in the first count, the common-law claim of wrongful discharge is barred. Thus, the motion to strike the first count is granted." Id. See also Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 162, 745 A.2d 178 (2000) (" [t]he existence of this statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged" statutory violation). In the present action, the court agrees with Judge Matasavage's reasoning in Perez. For that reason, the defendant's motion for summary judgment on the second count is granted.
III
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendant moves for summary judgment on the third count for intentional infliction of emotional distress claiming that there is no genuine issue of material fact that the defendant's conduct does not legally satisfy the elements of that cause of action. The plaintiff contends that Ellis' actions of failing to continue to provide the plaintiff with her classroom accommodations during the 2012-2013 school year, and the defendant's denial of her request for continued health insurance during her retirement, represent extreme and outrageous conduct.
" In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . ." (Footnote omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
" Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Id., 443.
In the present case, there is insufficient evidence for a jury to reasonably conclude that the defendant's conduct in assigning the plaintiff to a cart and denying the plaintiff continued health coverage, was extreme and outrageous. That conduct and its effects on the plaintiff simply were not so civilly atrocious and intolerable as to trigger liability for intentional infliction of emotional distress. Therefore, the defendant's motion for summary judgment on the third count is granted.
IV FEDERAL LAW DISCRIMINATION CLAIM
The defendant moves for summary judgment on the fourth count of the plaintiff's complaint, wherein the plaintiff claims that the defendant violated § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 701 et seq. In that count, the plaintiff realleges her allegations in the first count claiming a violation of CFEPA.
" Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, provides in relevant part: (a) No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Mercer v. Champion, 139 Conn.App. 216, 219 n.4, 55 A.3d 772 (2012).
The defendant claims that there is no genuine issue of material fact that the plaintiff has failed to establish a prima facie of discrimination under the Rehabilitation Act. The plaintiff alleges three ways in which the defendant discriminated against her: failing to maintain Silvermine in a safe condition; assigning her to a teaching cart for the 2012-2013 school year; and denying to the plaintiff continuing health benefits during her disability retirement. As noted by the defendant in its revised memorandum of law, the Rehabilitation Act does not contain a limitation of action. Consequently, the court will consider the defendant's claim that there is no genuine issue of material fact that the plaintiff has produced insufficient evidence to establish a prima facie case that the defendant violated the Rehabilitation Act.
In part I of this decision, the court concluded that the plaintiff abandoned her claim that the defendant discriminated against her in denying her continued health benefits upon her retirement and, even if considered, there is insufficient evidence to raise a genuine issue of material fact as to a prima facie case concerning this claim. Therefore, the court incorporates that finding into this part of its decision without further discussion.
" Plaintiffs who allege violations under the ADA . . . and the Rehabilitation Act may proceed under any or all of three theories: disparate treatment, disparate impact, and failure to make reasonable accommodation . . . We analyze claims of intentional discrimination under . . . the ADA, and the Rehabilitation Act under the familiar McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden-shifting analysis established for employment discrimination cases under Title VII of the Civil Rights Act of 1964 . . ." (Citations omitted; internal quotation marks omitted.) Regional Economic Community Action Program, Inc. v. Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002), cert. denied, 537 U.S. 813, 123 S.Ct. 74, 154 L.Ed.2d 16 (2002). As discussed in part I of this decision, under this framework, the plaintiff must first establish a prima facie case of discrimination.
" In order to establish a violation of § 504, a plaintiff must show (1) that he has a disability for purposes of the Rehabilitation Act, (2) that he is otherwise qualified for the benefit that has been denied, (3) that he has been denied the benefits solely by reason of his disability, and (4) that the benefit is part of a program or activity receiving Federal financial assistance." (Emphasis added; internal quotation marks omitted.) Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir. 1995).
The defendant's motion for summary judgment on the fourth count is solely based on the third factor to be considered in determining whether the plaintiff has established a prima facie discrimination case under the Rehabilitation Act. The defendant does not argue that the plaintiff is not a qualified individual within the meaning of the Rehabilitation Act, is not otherwise qualified to participate in the defendant's school system, or that the defendant is not subject to the Rehabilitation Act. Rather, the claim is grounded on its contention that the plaintiff has failed to create a genuine issue of material fact as to whether the defendant knew about her disability, and discriminated against her solely by reason of her physical disability.
The Rehabilitation Act has adopted the ADA's definition of a qualified individual with a disability. Both the ADA and the Rehabilitation Act require the plaintiff to establish that he is a qualified individual with a disability. " A 'qualified individual with a disability' under the ADA is defined as 'an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.' 42 U.S.C. § 12131(2). A 'disability' under the ADA is defined as 'a physical or mental impairment that substantially limits one or more major life activities of such individual . . .' 42 U.S.C. § 12102(1)(A). 'Major life activities' under the ADA include walking and standing. 42 U.S.C. § 12102(2)(A). The Rehabilitation Act has incorporated the definition of an 'individual with a disability' found in the ADA. 29 U.S.C. § 705(20)(B); see 29 U.S.C. § 794." Mercer v. Champion, supra, 139 Conn.App. 230.
The defendant first contends that there is no genuine issue of material fact that the plaintiff has failed to establish a prima face case of discrimination premised on her claim that the defendant failed to maintain Silvermine in a safe condition, effectively forcing her to retire because of her mold-related disability. The plaintiff alleges in her complaint that " [t]he building is highly contaminated by mold and teachers and students subjected to the building's environment have on many occasions suffered significant illness as a result. The plaintiff is one of those victims." The defendant responds that the plaintiff has failed to submit admissible evidence that Silvermine " is highly contaminated by mold" as alleged. The court agrees. The evidence submitted by the plaintiff in opposition to summary judgment in support of her mold claim is a purported report of an inspection conducted at Silvermine on August 7, 2013, as a result of a claim of " severe mold contamination." The report is not supported by an affidavit as to the authenticity of the document. It does not indicate who performed the investigation or authored the document. It does not expressly state any conclusions, other than generally referencing a " closing conference" on September 30, 2013. The document constitutes inadmissible evidence on the issue of the presence of mold, which condition is the basis for the plaintiff's claim that the defendant discriminated against her by failing to maintain Silvermine in a safe condition. " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial." (Citations omitted; internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). In view of the foregoing, the court concludes that there is no genuine issue of material fact that there is no admissible evidence establishing a prima facie case that the defendant discriminated against the plaintiff by failing to maintain Silvermine in a safe condition free from mold. The defendant next claims that there is no genuine issue of material fact that there is no evidence that the defendant solely discriminated against the plaintiff by reason of her disability in taking away her classroom with accommodations and reassigning her to teach during the 2012-2013 school year using a travel cart. The court disagrees.
The plaintiff has submitted evidence sufficient for a jury to consider that she suffers from a mold-related physical disability within the meaning of the act; the defendant had been accommodating the plaintiff for some time by providing her with a classroom having a window, air conditioner, and filter during the 2012-2013 school year; she was able to perform the essential functions of an elementary school music teacher with or without reasonable accommodation; and that the plaintiff suffered an adverse employment action as a result of the defendant's decision to assign the plaintiff to a teaching cart.
For example, at her deposition, the plaintiff testified that " [t]he discrimination was not from being put on a cart. However, my doctor specifically requested on more than one occasion that I have a room with a window, suitable air conditioner for that room, and a HEPA filter. That was not provided me." The plaintiff further testified that " a couple of itinerate teachers" were assigned to their own classroom " and they did not have need for medical accommodation whereas I did."
In response to her own counsel's questions, the plaintiff testified at her deposition as follows:
Q: Did you speak with [Ellis]?
A: I did speak with her.
Q: And what did she tell you?
A: She told me she couldn't do it.
Q: Did you consider that to be a deliberate disregard for your accommodation?
A: I would think, because she had the letter [from Dr. Santilli] and I discussed it with her, but she said no, I can't do it.
Q: And Exhibit 6 was a letter from your doctor in 2008, Exhibit 7 in 2010, same accommodation. Did anyone at Silvermine or from [the defendant] ever ask you to provide any other letter regarding the accommodation?
A: No.
At her deposition, the plaintiff was also asked whether she " felt Principal Ellis discriminated against [her] by not giving [her] a classroom with an air conditioner and HEPA filter for the 2012-2013 school year, " and whether the plaintiff " found out about that decision at the end of the 2011-2012 school year." The plaintiff responded " correct."
In an affidavit submitted in support of summary judgment, Ellis states that the plaintiff " worked cooperatively with me in regard both of those tasks, and provided me with information about what type of cart she wanted. Other than information about her cart, [the plaintiff] did not ask me for any other items or accommodations."
In view of the foregoing, the court concludes that the evidence is sufficient to create a genuine issue of material fact as to whether the plaintiff has established a prima facie case of discrimination, including whether the plaintiff was discriminated against solely by reason of her physical disability. Therefore, the defendant's motion for summary judgment is denied on the fourth count.
For example, the court discussed in that section the directly conflicting evidence as to whether Ellis knew about the plaintiff's disability, and disregarded it in assigning her to teach using a cart during the 2012-2013 school year. The plaintiff also testified that some teachers without a disability like the plaintiff's disability were assigned their own classroom, even though the plaintiff needed classroom accommodations. These facts, standing alone, are sufficient for the jury to consider on the issue of sole causation.
V
CONCLUSION
The defendant's motion for summary judgment is granted on the first, second, and third counts of the plaintiff's complaint, and denied on the fourth count.
(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. General Statutes § 46a-60(a)(1). Our Supreme Court has construed this statute 'to require employers to make reasonable accommodation for an employee's disability.'" Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008).