Opinion
WWMCV156009136S
04-10-2017
Melanie Perez v. State of Connecticut Judicial Department
UNPUBLISHED OPINION
MEMORANDUM OF DECISION (MOTION FOR SUMMARY JUDGMENT, DOCKET NO. 132, SHORT CALENDAR, JANUARY 9, 2017.)
Harry E. Calmar, J.
The defendant moves for summary judgment asserting there are no genuine issues of material fact in that the defendant neither failed to reasonably accommodate nor retaliated against the plaintiff.
FACTS
This case arises out of a dispute between the plaintiff, Melanie Perez, and the plaintiff's employer and defendant in this case, the State of Connecticut Judicial Department. On February 3, 2015, the plaintiff filed a one-count complaint wherein she alleges that the defendant failed to reasonably accommodate her hearing disability and retaliated against her in violation of the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq. The defendant filed this motion for summary judgment on September 1, 2016; (Docket Entry no. 132); along with a supporting memorandum of law; (Docket Entry no. 133). On November 4, 2016, the plaintiff filed a memorandum of law in opposition to the defendant's motion; (Docket Entry no. 141); along with accompanying exhibits; (Docket Entry no. 142). The defendant filed its reply on December 12, 2016. (Docket Entry no. 144.)
The defendant's exhibits include: (A) a deposition of Tina Merchant (Merchant); (B) the plaintiff's response to interrogatories and requests for production; (C) an affidavit of Merchant; (D) an affidavit of Mark Ciarciello (Ciarciello); (1) a letter from Ciarciello to the plaintiff; (2) a medical note; (3) an e-mail from Ciarciello to the plaintiff; (4) an employee request for reasonable accommodation; (5) an e-mail from the plaintiff to Ciarciello; (6) an e-mail from Ciarciello to the plaintiff; (7) an e-mail from the plaintiff to Ciarciello; (8) an e-mail from Linda Vickers to Ciarciello; (9) an email from Ciarciello to the plaintiff; (10) a job description for a probation officer; (11) a medical inquiry form; (E) an e-mail from Ciarciello to George Kelly; (F) a deposition of Mark Ciarciello; (G) a deposition of the plaintiff.
The plaintiff's exhibits include: (1) an e-mail from Schott Bonchuk (Bonchuk) to Merchant; (2) an e-mail from Michael Keleher (Keleher); (3) notes pertaining to the plaintiff's request for accommodation; (4) an e-mail from Merchant to Keleher; (5) an e-mail from Versie Jones to Merchant; (6) a deposition of the plaintiff; (7) a deposition of Merchant; (8) a deposition of Ciarciello; (9) a deposition of Ciarciello; (10) an e-mail from Bonchuk to the plaintiff; (11) an e-mail from Merchant; (12) unidentifiable; (13); an affidavit of the plaintiff; (14) a hearing before the commission on human rights and opportunities; (15) an affidavit of the plaintiff; (16) unidentifiable; (17) unidentifiable; (18) unidentifiable; (19) an e-mail from Merchant to George Kelly.
DISCUSSION
" [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). " 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 . . . [T]he party adverse to such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (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).
I
FAILURE TO REASONABLY ACCOMMODATE
Although " [o]n its face, [General Statutes § 46a-60(a)(1)] admits of no reasonable accommodation requirement"; Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 408, 944 A.2d 925 (2008); our Supreme Court has determined, nevertheless, that the statute imposes a " require[ment] [upon] employers to make a reasonable accommodation for an employee's disability." Id., 415. " 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) [s]he is disabled within the meaning of the [statute], (2) [s]he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiff's] disability, did not reasonably accommodate it . . . 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.) Id., 415-16.
General Statutes § 46a-60(a)(1) provides the following: " It shall be a discriminatory practice in violation of this section . . . 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."
Our courts " review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Id., 415. " The [Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.] defines undue hardship as an action requiring significant difficulty or expense, when considered in light of [specific enumerated statutory factors]." (Internal quotation marks omitted.) Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 221 (2d. Cir. 2001). " The factors . . . include the cost of the accommodation, the overall financial resources of the employer, and the type of operation of the employer." (Internal quotation marks omitted.) Id., citing 42 U.S.C. § 12111(10).
" The reasonableness of an employer's accommodation is a fact-specific question that often must be resolved by a factfinder . . . But in a case . . . in which the employer has already taken (or offered) measures to accommodate the disability, the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is plainly reasonable . . . A reasonable accommodation is one that enable[s] an individual with a disability who is qualified to perform the essential functions of that position . . . [or] to enjoy equal benefits and privileges of employment." (Citations omitted; internal quotation marks omitted.) Noll v. International Business Machines Corp., 787 F.3d 89, 94 (2d Cir. 2015). " Reasonable accommodation may take many forms, but it must be effective." Id., 95, citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (" It is the word 'accommodation, ' not the word 'reasonable, ' that conveys the need for effectiveness. An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." [Emphasis in original.]). " At the same time, employers are not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee . . . All that is required effectiveness." (Citations omitted; footnote omitted.) Noll v. International Business Machines Corp., supra, 787 F.3d 95. Unreasonable delay may amount to a failure to provide reasonable accommodation. See, e.g., Lewis v. Boehringer Ingelheim Pharmaceuticals, Inc., 79 F.Supp.3d 394, 410-11 (D.Conn. 2015) (" a reasonable jury could find that Defendant's delay of eight or nine months in providing Plaintiff with a reasonable physical accommodation constituted a failure to accommodate"). " [A] refusal of a request for a reasonable accommodation can be both actual or constructive, as an indeterminate delay has the same effect of an outright denial.' Logan v. Matveevskii, 57 F.Supp.3d 234, 257 (S.D.N.Y. 2014), citing Scoggins v. Lee's Crossing Homeowners Assn., 718 F.3d 262, 271-72 (4th Cir. 2013) (finding that defendants had constructively denied plaintiffs' request when after plaintiffs made request for accommodation in writing, defendants twice tabled plaintiffs' request for 15 months, and had still not acted on plaintiffs' request at time district court granted summary judgment in favor of defendants).
" Once a disabled individual has suggested to his employer a reasonable accommodation, federal law requires, and we agree, that the employer and the employee engage in an informal, interactive process with the qualified individual with a disability in need of the accommodation . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations . . . In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion." (Citation omitted; internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 416 (interactive process required under the act).
In the present case, evidence of the following has been submitted. Plaintiff has been working as a probation officer for the defendant since May of 1993. On April 7, 2012, the office staff to which the plaintiff belongs changed locations. (Pl.'s Exhibits, Ex. 13, Perez Aff., ¶ 1, Docket Entry no. 142.) Due to a hearing disability and a change in acoustics that increased background noise at the new location, the plaintiff was unable to concentrate when performing her work duties. (Pl.'s Exhibits, Ex. 13, Perez Aff., ¶ ¶ 2-3, Docket Entry no. 142.) In April of 2012, the plaintiff requested to be placed in one of several vacant offices. (Pl.'s Exhibits, Ex. 13, Perez Aff., ¶ 4, Docket Entry no. 142.) In response, the defendant transferred the plaintiff to a room occupied by two other employees, which the plaintiff complained was insufficient to remedy the problem. (Pl.'s Exhibits, Ex. 13, Perez Aff., ¶ ¶ 4-6, Docket Entry no. 142.) The defendant offered the plaintiff use of interview rooms; not to be confused with making an office for the plaintiff out of one of the interview rooms. (Pl.'s Exhibits, Ex. 7, Merchant Dep., p. 51-52, Docket Entry no. 142.) Such interview rooms, however, were in constant use by other employees. (Pl.'s Exhibits, Ex. 7, Merchant Dep., p. 51, Docket Entry no. 142.) The defendant offered the plaintiff her own office in the Willimantic offices of the defendant; (Def.'s Mem. Supp. Summ. J., Ex. A, Merchant Dep., p. 39, Docket Entry no. 133); which would have added time to the plaintiff's commute and resulted in increased day care expenses that would not have worked out financially for the plaintiff. (Pl.'s Exhibits, Ex. 6, Perez Dep., pp. 38-39, Docket Entry no. 142.)
On June 29, 2012, the plaintiff submitted to the person in charge of handling disability accommodation requests for the defendant, Mark Ciarciello (Ciarciello), a letter from her doctor recommending for the plaintiff a " quieter work environment." (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ 10, Docket Entry no. 133.) Ciarciello asked the plaintiff to obtain a response from her doctor as to what would enable the plaintiff to perform her essential job functions, to which the doctor responded as follows: " Ms. Perez requires a quiet work environment to adequately hear conversations both in person and by phone in order to comprehend conversations effectively." (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ ¶ 11-12, Docket Entry no. 133.)
The plaintiff filed a formal request for a reasonable accommodation on July 24, 2012, wherein she " indicated that she needed assistance with hearing while in her work space, and hearing communications with clients, co-workers and other professionals. She also indicated that the accommodation that she was looking for was 'to be in a work space without background noise (coworkers, phones ringing, loud office equipment, white noise) and other conversations at the same time. To be in a work area where [she] can block out background noise, such as closing a door." (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ 14, Docket Entry no. 133.) On that same day, Ciarciello told the plaintiff that he wanted to try the accommodation in place, i.e., the office occupied by two other co-workers, until September of 2012. (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ 18, Docket Entry no. 133.) On September 27, 2012, the plaintiff again notified Carciello that she was unable to hear while her co-workers were on the phone or meeting with a client. (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ 19, Docket Entry no. 133.)
On October 1, 2012, Ciarciello visited the plaintiff's office and determined that the accommodation was reasonable, but that she could continue to request that certain changes be made to the room. (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ 22, Docket Entry no. 133.) The plaintiff requested that equipment be moved to free up a vacant room, a request that was denied by the defendants on the ground that moving the equipment would be too great of a burden. (Pl.'s Exhibits, Ex. 8, Ciarciello Dep., pp. 94, 100, 101, Docket Entry no. 142.) Ciarciello told the plaintiff that having her own office was " off the table." (Pl.'s Exhibits, Ex. 8, Ciarciello Dep., pp. 73-74, Docket Entry no. 142.) On January 24, 2013, the plaintiff made request for hearing aids, which was denied. (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ ¶ 23-24, Docket Entry no. 133.) On February 13, 2013, the plaintiff asked for a new telephone and soundproofing partitions; to which the defendant responded by purchasing her the specialized telephone, but denying her request for the partitions. (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ ¶ 26-29, Docket Entry no. 133.) The new telephone was ineffective; the plaintiff contacted the defendant's information technology department six times between March and May of 2013 regarding the technical difficulties. (Pl.'s Exhibits, Ex. 15, Perez Aff., ¶ 6, Docket Entry no. 142.) Ciarciello was aware that the new phone was ineffective. (Pl.'s Exhibits, Ex. 14, CHRO Hr'g, pp. 31-32, Docket Entry no. 142.) Ciarciello and his supervisor made the determination not to spend $5,000 on the soundproofing partitions because they would not have blocked out all outside noise and, thus, may have been ineffective (See Def.'s Mem. Supp. Summ. J., Ex. F, Ciarciello Dep., pp. 81-82, Docket Entry no. 133.) It was not until October of 2014 that the defendant granted the plaintiff's request to move equipment from an unoccupied room and transform such room into the plaintiff's own office. (Def.'s Mem. Supp. Summ. J., Ex. G, Perez Dep., p. 81, Docket Entry no. 133.; Pl.'s Exhibits, Ex. 8, Ciarciello Dep., pp. 94, 100, 101, Docket Entry no. 142.)
The foregoing record demonstrates, and the defendants seem to concede, that a reasonable jury could find that the plaintiff has a disability, of which the defendant was aware, and that the plaintiff was able to perform her essential job duties. What the record does not establish, is that the accommodations advanced by the defendant were plainly reasonable, and, therefore, sufficient to warrant summary judgment on this question of fact. In order for an accommodation to be reasonable, it must be effective. See Noll v. International Business Machines Corp., supra, 787 F.3d 94-95. Ciarciello, the person in charge of handling disability accommodation requests for the defendant, averred that even he did not believe that anything less than a soundproof working environment would be effective for the plaintiff. (See Def's Mem. Supp. Summ. J., Ex. F, Ciarciello Dep., pp. 81-82, Docket Entry no. 133.) The defendant's argument that moving equipment out of an office in order to make it available for the plaintiff would have presented an undue burden; (see Def.'s Mem. Supp. Summ. J., pp. 8-9, Docket Entry no. 133); is contradicted by the fact that the defendant did just this, albeit two years after the original request was denied. There is evidence that Ciarciello denied the plaintiff's proposed accommodation and then reversed that position two years later. Even if the court were to characterize this reversal as merely " a delay, " a two-year delay is a constructive denial. Based on the foregoing, there exists a genuine issue of material fact as to whether the defendant failed to provide the plaintiff with a reasonable accommodation.
" It is undisputed that the plaintiff is in a protected class because of her disability. It is also undisputed that she is qualified for the position of probation officer." (Def.'s Mem. Supp. Summ. J., p. 15, Docket Entry no. 133.)
II
RETALIATION
General Statutes § 46a-60(a)(4) of the act provides in relevant part the following: " It shall be a discriminatory practice in violation of this section . . . [f]or any . . . employer . . . 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 . . ." Proceedings under § § 46a-82, 46a-83, and 46a-84 are complaint procedures defined by the act, filed with the Commission on Human Rights and Opportunities (CHRO), an agency created under the act; see § 46a-51.
" To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that [s]he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against [her]; and (4) a causal connection between the protected activity and the adverse employment action." (Internal quotation marks omitted.) Phadnis v. Great Expressions Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 94-95, 153 A.3d 687 (2017) (appendix). " [T]he court . . . employs the burden shifting analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, [411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).]" Id., 95. " Under this analysis, 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." Perez-Dickson v. Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012).
A
Protected Activity and the Defendant's Knowledge Thereof
The defendant argues that the mere act of requesting reasonable accommodation does not constitute protected activity under state discrimination law. The plaintiff argues that state discrimination law is to be interpreted in accordance with federal antidiscrimination law, which federal courts have interpreted to include such activity for the purposes of retaliation.
" While the plain language of [§ 46a-60(a)(4)] lacks any terms which would bring the act of seeking a reasonable accommodation within its protective purview, numerous United States federal courts have held that requesting a reasonable accommodation is a protected activity under the [ADA], 42 U.S.C. § 12101 et seq. . . . However, in contrast, the few Connecticut courts that have considered the issue in regard to [the act] have concluded that § 46a-60(a)(4) does not protect an employee who makes a request for a reasonable accommodation." (Citations omitted; internal quotation marks omitted.) Phadnis v. Great Expressions Dental Centers of Connecticut, P.C., supra, 170 Conn.App. 96. The opinion adopted by our Appellate Court in Phadnis was able to rule without resolving this divergence. See id.
The few Connecticut courts that have interpreted whether a request for a reasonable accommodation constitutes " protected activity" for the purposes of the act have actually come to differing conclusions. See Reddick v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-11-6021301-S, (December 3, 2015, Wilson, J.) (protected); Dwyer v. Waterfront Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. CV-12-6032894-S (May 24, 2013, Fischer, J.) (56 Conn.L.Rptr. 232, 237-39, ) (not protected); Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Docket No. X06-CV-12-6014260-S (Oct. 31, 2012, Agati, J.) (54 Conn.L.Rptr. 887, 889, ) (not protected), relying on Setkoski v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV-10-6012794-S (May 10, 2012, Domnarski, J.) (54 Conn.L.Rptr. 67, 70, ).
The reasoning of the opinions that have come to the conclusion that requesting reasonable accommodation is not protected activity; see Dwyer v. Waterfront Enterprises, Inc., supra, 56 Conn.L.Rptr. 237-39, Id. (" [t]he reasoning of the Setkotski [and] Sheehy . . . courts is more persuasive than that of the circuit courts"); Sheehy v. Big Y Foods, Inc., supra, 54 Conn.L.Rptr. 889, Id. (" [t]his court concludes that § 46a-60 (a)(4) is precise and specific with respect to what types of acts are 'protected activities' for purposes of alleging retaliation"), relying on Setkoski v. University of Connecticut Health Center, supra, 54 Conn.L.Rptr. 70, Id. ; is, in at least some sense, flawed. This is because the court in Setkoski relied on language defining " protected activity" that has been quoted and requoted in different contexts by Superior Court back to Majewski v. Bridgeport Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV-03-0406893-S, (January 20, 2005, Arnold, J.) (analyzing whether refusal to submit to sexual advances constitutes protected activity), and its source is a federal case interpreting the ADA, Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2nd Cir. 1990). Because it is well established that requesting reasonable accommodation is a protected activity under the ADA; see Rieger v. Orlor, Inc., 427 F.Supp.2d 105, 120 (D.Conn. 2006); reliance on language in Sumner for the opposite proposition is misplaced.
" A protected activity is an action taken to protect or oppose statutorily prohibited discrimination. These actions can include the filing of formal charges of discrimination, as well as, informal protests of discriminatory employment practices, including complaints to management, writing critical letters to customers, protecting against discrimination by industry and expressing support of co-workers who have filed formal charges . . . The objective is to forbid employers from retaliating against employees because of employees' opposition to unlawful employment practices." (Internal quotation marks omitted.) Setkoski v. University of Connecticut Health Center, supra, 54 Conn.L.Rptr. 70, Id. .
The language of the act leaves open what may constitute opposition to discrimination; see § 46a-60(a)(4); as does the ADA; 42 U.S.C. § 12203(a) (" [n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter").
" We traditionally have accorded deference to the time-tested interpretation of an agency charged with enforcing the provisions of a statute, provided that the agency's interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable." (Internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 404 (giving credence to CHRO interpretation of § 46a-60(a)(1) to include reasonable accommodation requirement). " When . . . a statutory provision is silent with respect to [the issue at hand], our analysis is not limited by . . . [General Statutes] § 1-2z, which provides that the meaning of statutes shall be ascertained from only their text and their relationship to other statutes if those sources reveal an unambiguous meaning that is not absurd or unworkable . . . In addition to the words of the statute itself, we look to . . . the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citation omitted; internal quotation marks omitted.) Id., 407. " The legislative history of the act indicates that the statute was intended to provide strong protection for those with disabilities . . . Because the text and legislative history illustrate that the intent of the legislature is to stamp out discrimination on the basis of physical disability . . . we must not interpret the statute in a way that would thwart this purpose." (Citations omitted; footnotes omitted.) Id., 410-12. " Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws." Id., 407.
" [I]t is well established that seeking a reasonable accommodation for a disability constitutes protected activity [within the meaning of the ADA] . . ." Rieger v. Orlor, Inc., supra, 427 F.Supp.2d 120. Moreover, the CHRO has interpreted § 46a-60(a)(4) to include a request for reasonable accommodation as protected activity under the statute. See Kennedy v. Eastern Connecticut State University, Commission on Human Rights & Opportunities, Opinion No. 0140203 (December 27, 2004). For the foregoing reasons, it is reasonable for the court to conclude, in line with federal precedent and the CHRO's interpretation, that a request for a reasonable accommodation is protected activity under § 46a-60(a)(4). The record advanced clearly establishes that the plaintiff requested a reasonable accommodation of which the defendant was aware.
B
Adverse Action and Causal Connection
The defendant argues that the plaintiff's purported action on the part of the defendant does not rise to the level of an adverse employment action. The plaintiff alleges that " [she] has been shunned by her supervisor since her request for reasonable accommodation for her disability" and " [she] has been assigned to less favorable work assignments since she requested reasonable accommodation for her disability." (Compl. ¶ ¶ 32-33, Docket Entry no. 100.31.)
" For purposes of a retaliation claim, an adverse action need not be an action that affects the terms and conditions of employment, such as a hiring, firing, change in benefits, reassignment or reduction in pay . . . Rather, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination . . . This standard speak[s] of material adversity because . . . it is important to separate significant from trivial harms. [Federal antidiscrimination law] . . . does not set forth general civility code for the American workplace . . . Nevertheless, a harm that may be trivial for one, may be significant for another. Put differently, [c]ontext matters . . . For example, while a schedule change in an employee's work schedule may make little difference to many workers, it may matter enormously to a mother with school-age children . . . Further, in determining whether conduct amounts to an adverse employment action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross as to be actionable." (Citations omitted; emphasis in original; internal quotation marks omitted.) White v. Middletown, 45 F.Supp.3d 195, 217-18 (D.Conn. 2014). " [R]etaliatory work assignments . . . are a classic and widely recognized example of forbidden retaliation . . . Defendant's decision to assign Plaintiff the less desirable and arduous task . . . falls squarely within this category." (Citation omitted; internal quotation marks omitted.) Id., 218. " A causal connection can be established indirectly by showing that the protected activity was followed close in time by adverse action . . ." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 539, 976 A.2d 784 (2009).
Evidence of the following has been submitted. In April of 2012, the plaintiff requested to Tina Merchant (Merchant) that she be transferred to an empty office in order to accommodate her hearing disability. (Pl.'s Exhibits, Ex. 13, ¶ 4, Docket Entry no. 142.) Merchant is in charge of the chief probation officers and probation officers at the plaintiff's office; the plaintiff's supervisor reports to Merchant. (Def.'s Mem. Supp. Summ. J., Ex. C, ¶ ¶ 3-6, Docket Entry no. 133.) In April or May of 2012, the plaintiff also requested not to be assigned the mental health caseload. (Pl.'s Exhibits, Ex. 15, ¶ 9, Docket Entry no. 142.) The plaintiff filed a formal request for a reasonable accommodation with Ciarciello on July 24, 2012; (Def.'s Mem. Supp. Summ. J., Ex. D, Ciarciello Aff., ¶ 14, Docket Entry no. 133.); and in doing so, the plaintiff went above Merchant's authority, who thereafter shunned the plaintiff. (Pl.'s Exhibits, Ex. 6, p. 116; Docket Entry no. 142; Pl.'s Mem. Opp'n Summ. J., p. 27; Dock Entry no. 141.) In August of 2012, the plaintiff was reassigned from handling the technical violations caseload to the mental health caseload. (Def.'s Mem. Supp. Summ. J., Ex. C, ¶ ¶ 13, 14, Docket Entry no. 133.) Ten other persons had their caseloads reassigned at this time because of an employee transfer to the plaintiff's office and because the judicial department was mandating a new specialized caseload to better serve those with mental health issues. (Def.'s Mem. Supp. Summ. J., Ex. C, ¶ ¶ 10-12, Docket Entry no. 133.) Persons on the mental health caseload tend to be a revolving door within the court system on account of their illness--and it is the policy of the office to allow them extra chances because of their mental illness. (Def.'s Mem. Supp. Summ. J., Ex. A, Merchant Dep., pp. 83-84, Docket Entry no. 133.) Merchant and the supervisors directly below her decided to assign the mental health caseload to the plaintiff because she was giving people on the technical violations caseload too much leeway--which worked better for persons with mental health issues rather than technical violation offenders. (Def.'s Mem. Supp. Summ. J., Ex. A, Merchant. Dep., pp. 83-84, Docket Entry no. 133.)
In the present case, there exists evidence of the following. Merchant shunned the plaintiff after she submitted a request for reasonable accommodation to Ciarciello. A month later, the plaintiff was assigned the mental health caseload after having specifically requested not to be assigned this caseload. The defendant has acknowledged that it takes a greater amount of patience to deal with persons on the mental health caseload, and that because the plaintiff possesses a greater amount of patience, they assigned her this caseload. Evidence of Merchant shunning the plaintiff, however, although insufficient in itself to constitute an adverse action, demonstrates that there was ill will towards the plaintiff for having filed the request for reasonable accommodation a mere month before the reassignment, and creates a question of fact as to whether the defendant's legitimate, nondiscriminatory reason is pretextual.
CONCLUSION
Based on the evidence and case law discussed throughout this memorandum, the court denies the defendant's motion for summary judgment.