Opinion
No. CV 08 4018374 S
March 24, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, #113
The plaintiff, Luis Molina, has sued his former employer, Ocean State Job Lob of Berlin, LLC, (Ocean State), alleging that the defendant violated his rights under General Statutes § 31-290a by terminating his employment in retaliation for filing a workers' compensation claim. Before this court is the defendant's motion for summary judgment and memorandum of law as well as the plaintiff's memorandum of law in opposition, and the defendant's reply brief. The defendant submitted with his memorandum in support of its summary judgment motion a copy of the deposition transcript of Donna Porter, keeper of the records of Grove Hill Medical Center (Exh. A, hereinafter referred to as Porter's Depo.); an affidavit of Diane Hurley, employee of the defendant (Exh. B, hereinafter referred to as Hurley Aff.); an affidavit of Patricia Rivera, employee of the defendant (Exh. C, hereinafter referred to as Rivera Aff.), and other supporting documentation. The plaintiff submitted his own affidavit (Exh. 1, hereinafter referred to as Molina Aff.); his answers to defendant's interrogatories and requests for production (Exh. 5); as well as the same affidavits of Hurley and Rivera and the Porter deposition. Oral argument took place on February 1, 2010, at which time the court granted the plaintiff's request to file a response to the defendant's reply brief, and granted the defendant an opportunity to file a sur-reply brief to the plaintiff's response brief.
The court granted these requests under the condition that neither party submit any further evidence or affidavits.
I FACTUAL BACKGROUND
The plaintiff was employed by the defendant from September 2004, until October 2006, as a receiving manager. On October 4, 2006, while engaged in the normal duties of his employment, the plaintiff suffered a fractured hand. He immediately sought medical treatment at New Britain General Hospital where his hand was placed in a half cast. Two days later, the plaintiff's physician, Dr. Stephen Pillsbury, placed the plaintiff's hand in a splint. As a result of the injury, Pillsbury issued a note stating that the plaintiff would be out of work until October 20, 2006.
On October 20, 2006, the plaintiff returned to Pillsbury's office for a follow-up examination. At that appointment, Pillsbury released the plaintiff to return to work on October 23, 2006, with the restriction of no lifting more than ten pounds with his injured hand, and a note to that effect was provided to the defendant. Molina did not return to work on October 23, 2006, stating that the doctor did not have a protective glove available, that the glove was required to return to work, and that he would return the following day.
Molina did not return to work on either October 24 or October 25, stating first that Pillsbury had changed his prescriptions causing him to become nauseous, and that the protective glove was still not ready. On October 26, 2006, Pillsbury's office provided a note which was submitted to the operations supervisor, Patricia Rivera, at the Ocean State Job Lot store in Berlin, signed by Pillsbury, which indicated: "no lifting more than 10 pounds with [right] hand." This note was provided by Rivera to Diane Hurley, the director at Ocean State's corporate headquarters, who monitors workers' compensation claims by Ocean State employees, on October 27, 2006. Also on October 27, 2006, the plaintiff submitted a medical report to Rick Baba, assistant store manager for the defendant's store, dated October 26, 2006, identical to the previous note dated 10/26, but this one contained an additional phrase "return on 10/28," which note was immediately faxed to Hurley.
The defendant indicates that the additional phrase was written in a different color ink, but the photo copies provided to the court do not provide sufficient clarity to determine whether that is so or not.
Upon receipt of the "second note," Hurley contacted Pillsbury's office, and was informed that Molina was given a splint on October 20, 2006, and that he could return to work on October 23, 2006. In addition, Hurley learned that there were no changes made to the "first note" dated October 26, 2006, and that Pillsbury had never changed the plaintiff's prescriptions after his first visit.
Ocean State terminated Molina's employment on approximately November 6, 2006, citing the fact that he did not return to work on October 23, 2006, although he was released to do so by Pillsbury's office, as well as for allegedly falsifying the medical note dated October 26, 2006, to add the phrase "return on 10/28" as reasons for his termination. Molina claims that he was terminated in retaliation for making a workers' compensation claim. He claims damages, legal fees, reinstatement to his position, as well as wages, fringe benefits and damage for emotional distress. Ocean State claims that undisputed facts compel the conclusion that the plaintiff was terminated for failing to return to work when medically released and submitting a falsified medical note, and that his termination had nothing to do with his having filed a workers' compensation claim.
The defendant argues in support of its motion for summary judgment that there are no material facts in dispute in this matter, and it is entitled to judgment as a matter of law. It also contends that the plaintiff has not and cannot show any facts to support his assertion of an improper motive in his termination of employment. It argues that Molina cannot establish a prima facie case of discrimination. It further argues that Molina's employment was terminated reasonably because the defendant believed, both at the time and now, that Molina had submitted a forged and falsified medical note. In addition, the defendant is entitled to summary judgment because the plaintiff cannot sustain his burden of proving that the defendant's nondiscriminatory reason for termination is not credible or that any reasonable person could find that the plaintiff is entitled to judgment in his favor.
The plaintiff argues in opposition that the he has established a prima facie case by providing his affidavit, that the evidence provided by the defendant in its motion for summary judgment to support both of its "legitimate non-discriminatory reasons for terminating the plaintiff" is inadmissible hearsay, and there are issues of material fact as to whether the defendant wrongfully terminated the plaintiff.
II DISCUSSION A. Summary Judgment
Pursuant to Practice Book § 17-49, "summary 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.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006).
"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 or substantive law, entitle[s] him to a judgment as a matter of law . . . 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." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).
"As the party moving for summary judgment, the [defendant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
B. Employment Discrimination Pursuant to General Statutes § 31-290a
General Statutes § 31-290a provides in relevant part: "(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter."
The analysis to be employed by the court is set forth in Ford v. Blue Cross and Blue Shield of Connecticut, Inc., 216 Conn. 40, 578 A.2d 1054 (1990), which looked to federal case law for guidance, following the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). "The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy [his] burden of persuading the fact finder that [he] 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 untrustworthy of credence." Id., 53-54.
Pursuant to this analysis, "[t]he initial step in analyzing a claim under § 31-290a is to determine whether the plaintiff has established a prima facie case of discrimination." Mele v. Hartford, 270 Conn. 751, 769, 855 A.2d 196 (2004). "To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that [he] was exercising a right afforded [him] under the act and that the defendant discriminated against [him] for exercising that right." Diaz v. Housing Authority, 258 Conn. 724, 731, 785 A.2d 192 (2001). "The plaintiff must establish (a) [protected activity, i.e.,] that he filed a claim for workers' compensation benefits . . .; (b) an employment action disadvantaging the plaintiff, and (c) a causal connection between the protected activity and the adverse employment action." (Internal quotation marks omitted.) Contois v. Carmen Anthony Restaurant Group, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160287 (March 21, 2003).
Ocean State does not take issue with the contention that the plaintiff has established a prima facie case. The plaintiff filed for workers' compensation benefits. He was terminated from his employment. The protected activity of filing for benefits was followed closely by his termination from employment. "The temporal relationship between the claim for compensation and the termination is sufficient to satisfy the de minimis requirement." Raia v. Sonitrol Communications Corp., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 03 0822959 (February 27, 2004).
Having established a prima facie case, the burden next shifts to the defendant to produce evidence that its actions were motivated by a neutral, legitimate business reason for termination. The defendant provides two explanations as to why the plaintiff was terminated. First, he failed to return to work despite a doctor's release to do so. Second, it is Ocean State's contention that Molina supplied a falsified medical note.
Failing to return to work despite a doctor's release to do so is a legitimate nondiscriminatory reason for terminating an employee. Diaz v. Housing Authority of the City of Stamford, 258 Conn. 724, 731, 785 A.2d 192 (2001). In Diaz, the plaintiff sustained an injury while employed by the defendant on April 22, 1996, and sought treatment from a doctor. The doctor released the plaintiff to return to light duty, effective April 24, and full duty on April 29. On April 23, the plaintiff notified her supervisor that, notwithstanding the doctor's release, she would not be returning to work on April 24, but rather would return on April 29. Id., 727-28. On April 24, the defendant terminated the plaintiff's employment, when she failed to report to work. The court found that the plaintiff's failure to return to work was a legitimate reason for terminating the plaintiff and affirmed the finding that the plaintiff had failed to make out even a prima facie case for unlawful discrimination. Id., 731-32.
The defendant's explanations for termination of Molina go hand in hand. On October 20, the plaintiff was released to return to light duty work on October 23, 2006, by his doctor. (Molina Aff. at ¶ 11.) On that same date, Diane Hurley, the defendant's claims representative, spoke with Ocean State's Operations Supervisor, Patricia Rivera, indicating that Rivera should call Hurley to confirm the plaintiff returned to work. (Hurley Aff. at ¶ 10.) On October 27, Hurley received a medical note from the Ocean State store which Molina had provided to his supervisor. The note was dated October 26, 2006, and indicated that the plaintiff may work with the restriction of no lifting more than ten (10) pounds with his right hand. (Hurley Aff. at ¶ 14.) Surprisingly, an exact duplicate of the October 26 medical note was provided by Molina, with one added notation of "return on 10/28/06." Suspicious of this second note, Hurley called Pillsbury's office to investigate further, and learned that Molina was indeed released to work on 10/23/06. Hurley in her affidavit states, that "[a]fter calling the plaintiff's doctor, I reasonably believed that the plaintiff had falsified the second note dated 10/26/06 in order to change the return to work date to 10/28/06." (Hurley Aff. at ¶ 18.) After referring the matter to Ocean State's human resources department, the plaintiff was terminated on November 6, 2006.
The plaintiff argues that "there is absolutely no evidence in the record to support the defendant's contentions that it terminated the plaintiff for missing work from October 23 to October 25." (Plaintiff's Response to defendant's reply brief, p. 10.) He contends that the only evidence submitted by the defendant that addresses why it terminated the plaintiff is an affidavit from Hurley, and Rivera, stating he was terminated for "falsifying a medical note." Nowhere in either Hurley's or Rivera's affidavits does it ever say that the defendant was terminated for, and only for, believing to have falsified a medical note.
This one of several misrepresentations of the record that the plaintiff makes to support his contentions. In fact, it is Molina's affidavit which states that an assistant manager of Ocean State called him and informed him that his employment was terminated due to falsifying a medical note. (Molina's Aff. at ¶ 17.) Another example of these "misrepresentation" is with regard to his argument that the court may draw a particular inference from the "fact" that the defendant informed the plaintiff's treating physician that "it did not have workers' compensation insurance." As support for this assertion, Molina cites to his own affidavit at ¶ 9. This paragraph states: ". . . Dr. Pillsbury informed me that the defendant did not have workers' compensation insurance and that I would have to use my private health insurance to compensate him for the medical service he provided." There is no evidence that any official from Ocean State ever told his physician or anyone else anything of the sort. Further, Molina had made three previous workers' compensation claims while working at Ocean State. He makes no claim that he was terminated for exercising his rights and receiving benefits under those claims.
The court finds that Ocean State has demonstrated a legitimate nondiscriminatory reason for terminating Molina. First, he failed to return to work on October 23rd despite being released to do so by Pillsbury. Second, Molina also failed to return to work on both October 24th and October 25th. Although these facts alone are sufficient to justify his termination, on successive dates, October 26th and 27th Molina produced the same note twice, the second of which contained an additional notation purported to change his return to work date on October 28th. In response to receiving the second note, Hurley called Pillsbury's office to investigate the discrepancies and learned that Molina's return to work date had never been changed, and that his prescriptions had never been changed. (Hurley Aff. at ¶¶ 16-18). Taken in total, these circumstances are sufficient to give Ocean State a good faith basis in believing the second note dated October 26th was falsified. As a result, Ocean State did not unlawfully discriminate against the plaintiff because the question of whether or not the medical note in question was falsified is immaterial to establishing that Ocean State had legitimate reasons for terminating Molina.
The plaintiff argues that the evidence provided by the defendant to support its claims is based on inadmissible hearsay because the affidavit of Hurley contains statements made by "Jackie," an employee at Pillsbury's office. The defendant contends, and the court agrees, that the statements attributable to "Jackie" are not being offered to prove the truth of what was asserted, but offered to establish the extent of Hurley's knowledge and the reasonableness of her belief when Ocean State made its decision to terminate Molina's employment. Although the defendant did not depose "Jackie" or Pillsbury, or obtain a corroborating affidavit from either person, the defendant did conduct a keeper of the records deposition of Pillsbury's office. Interestingly, the medical note which states that the plaintiff was to "return on 10/28" was not in his medical records. (Deft.'s Exh. A.)
Having produced this neutral and non-discriminatory reason for the employment decision, the burden shifts, and the plaintiff must now overcome the rebuttal of his prima facie case by establishing that the reason offered by the defendant was a pretext or by proving discriminatory intent. "Without some specific factual showing other than the mere assertion of a conclusion that the employer had an improper motive, the plaintiff cannot prevail . . . Erisoty v. Merrow Machine Co., 34 Conn.App. 708, 713, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994)." Lopez v. Walnut Hill, Inc., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 99-0498763 (November 30, 2001) (holding that the defendant was entitled to summary judgment where the plaintiff had provided the court no evidence to support her claim of discriminatory motive and that absent such evidence, there are no issues of material fact to determine).
The plaintiff rests his case on the conclusory, supported allegations of his complaint. He claims: that he had to use his private health insurance to cover the costs of the work injury because he was told that Ocean State did not have workers' compensation coverage (Amended complaint ¶ 9); that he was forced to use vacation and sick days for the time missed with the injury (Amended Complaint ¶ 10); that he was promised by Ocean State that his sick and vacation time would be credited back to him ( Id., ¶ 11); that Ocean State warned him that if he filed a claim his job may be turned over to someone else ( Id., ¶ 15); and that Ocean State attempted to prevent him from receiving benefits and medical treatment for speaking to a workers' compensation representative ( Id., ¶ 16). The plaintiff does not provide any corroborating evidence to support his claims, let alone to raise an issue of material fact which could reasonably support a judgment in his favor.
The plaintiff attempts to set forth several inferences of ill intent. His arguments are irrelevant to these proceedings, are not in the record, and do not support an inference that the defendant's reasons for terminating him were pretextual or illegitimate. His attempts to use his own self-serving discovery responses to show any discriminatory motive on the part of the defendant also fail to create an issue of material fact or give rise to an inference of discriminatory intent.
Molina argues that he was an exemplary employee, and anything but "an honest, stellar and hard-working employee." His employment history is not before the court, besides which there is nothing in the record that would support his statements. The plaintiff also argues that an inference can be drawn because the defendant required him to use his vacation and sick days for his injury, a practice completely consistent with the workers' compensation statutory scheme under Connecticut law. See General Statutes § 31-295(a).
The plaintiff has put forth no evidence whatsoever to call Ocean State's motivation into question. Arguments of counsel and allegations contained in a plaintiff's complaint are not evidence or proof of the fact contained therein. See Buffington v. Estrada, Superior Court, judicial district of New Haven, Docket No. CV 065002820 (April 19, 2007); Lebby v. Klingberg Family Centers, Superior Court, judicial district of New Britain, Docket No. CV 08 5009389 (August 7, 2009) (granting summary judgment for the moving party where there was a notable lack of evidentiary submission by the non-moving party other than that which was alleged in the pleadings). Absent such evidence, the plaintiff has not met his burden of showing that the defendant's legitimate non-discriminatory reason for terminating him was pretextual or otherwise a product of a discriminatory motive.
III CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted.