Opinion
HHDCV166071684S
06-25-2018
Jendayi SCOTT v. CARECENTRIX, INC.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE
On March 26, 2018 the court heard oral argument on the defendant CareCentrix, Inc.’s motion for summary judgment (# 127). After consideration, for the reasons stated below, the motion is denied.
I
Background
The plaintiff, Jendayi Scott, brings this employment discrimination claim against the defendant, CareCentrix, Inc. In the plaintiff’s complaint, dated September 16, 2016, the following facts are alleged. The plaintiff was hired by the defendant on March 23, 2015, as an Executive Assistant (Assistant) and was qualified for the position. The plaintiff has a disability, multiple sclerosis (MS), and the defendant was aware that the plaintiff suffered from MS. In addition, the plaintiff was taking medication for her MS, and the defendant was aware that the plaintiff took prescription for her disability. The plaintiff also told the defendant that she was experiencing flare ups as a result of her MS, and the defendant regarded the plaintiff as disabled.
As a result of the plaintiff’s MS she was under the care of health care providers. Due to the plaintiff’s MS, she took time off from work to go to doctor’s appointments, and the plaintiff notified the defendant of her upcoming absences from work that were disability related. The plaintiff’s absences were all expected to be short in duration, and the defendant initially approved the plaintiff’s scheduled absences.
Lori Musante (Musante) is employed by the defendant and became the plaintiff’s supervisor after the defendant originally approved the plaintiff’s time off requests. Though Musante was aware that the plaintiff’s planned absences were MS related, Musante told the plaintiff that she was prohibited from taking time off from work. Therefore, the plaintiff did not proceed with her doctor’s appointments because Musante did not allow her to take time off from work. Musante was also informed by the plaintiff that her flare ups were worsening.
On or about October 5, 2015, the plaintiff collapsed at work, and was taken to St. Francis Hospital by an ambulance. Subsequently, the plaintiff notified the defendant that she was required to be out of work from October 5, 2015, until October 13, 2015, because of her MS. On October 7, 2015, the defendant terminated the plaintiff’s employment. The defendant was notified of the plaintiff’s October 13, 2015 return to work date prior to the defendant terminating the plaintiff. The defendant cited poor job performance as the reason for termination.
The plaintiff now brings the following claims against the defendant: count one, disability discrimination based on the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60(a); count two, retaliation in violation of General Statutes § 46a-60(a)(1); count three, failure to accommodate in violation of General Statutes § 46a-60(a)(1); and count four, regarded as disabled discrimination in violation of General Statutes § 46a-60(a).
On or about December 5, 2015, the plaintiff filed charges against the defendant with the Connecticut Commission on Human Rights & Opportunities (CHRO). On June 24, 2016, the plaintiff received a release of jurisdiction from the CHRO. The defendant filed an answer and affirmative defenses on November 17, 2016, and the plaintiff replied on April 3, 2017. On December 1, 2017, the defendant filed its motion for summary judgment. The plaintiff filed her objection to the defendant’s motion on February 6, 2018. The defendant replied on March 7, 2018.
II
Standard of Review
"Practice Book § 17-49 provides that 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"[T]he party moving for summary judgment ... is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). Additionally, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 74, 154 A.3d 55 (2017).
III
Discussion
A: Count One- Disability Discrimination
"It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability, including, but not limited to, blindness, or status as a veteran." General Statutes § 46a-60. Additionally, General Statutes § 46a-51(15) provides in relevant part, "[p]hysically disabled refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device ..."
"Our Supreme Court has determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws." (Internal quotation marks omitted.) Thomson v. Dept. of Social Services, 176 Conn.App. 122, 128, 169 A.3d 256, cert. denied, 327 Conn. 962, 172 A.3d 800 (2017). Moreover, "[b]oth the [Americans with Disability Act] ADA and CFEPA prohibit discrimination on the basis of disability and apply the same legal framework to the discrimination analysis ... These claims of disability discrimination are subject to the familiar McDonnell Douglas Corp[. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] burden-shifting standard ... Thus, a plaintiff may establish a prima facie case for discrimination if he can show by a preponderance of the evidence that: (1) his employer is subject to the ADA/CFEPA; (2) he was disabled within the meaning of the ADA/CFEPA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability." (Citations omitted.) Green v. Cellco Partnership, 218 F.Supp.3d 157, 162 (D.Conn. 2016).
"If the plaintiff succeeds in meeting that burden, his employer can counter the presumption of discrimination by proffering a legitimate, nondiscriminatory reason for its action. Finally, the plaintiff can still succeed on his claim if he can show that the proffered reason was a ‘pretext’ for discrimination, ..., a showing which requires him to demonstrate both that his employer’s stated reason was untrue or incomplete and that discrimination played a causal role in his termination." (Citation omitted; internal quotation marks omitted.) Green v. Cellco Partnership, supra, 218 F.Supp.3d 163.
"A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment ... To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities ... [A]n adverse employment action [has been defined] as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." (Citation omitted; internal quotation marks omitted.) Amato v. Hearst Corp., 149 Conn.App. 774, 781, 89 A.3d 977 (2014).
i: Prong Three- Whether the Plaintiff was Qualified for Her Job
The defendant does not argue that the plaintiff fails to satisfy the first two prongs of proving her prima facie case. Instead, the defendant argues that the plaintiff cannot establish the third and fourth prongs. In doing so, the defendant contends that the plaintiff was not qualified for the position of Assistant because her job performance at the time of discharge was not satisfactory. Additionally, the defendant contends that after a short period of time working for the defendant, the plaintiff received corrective counseling for deficiencies in her work performance, in addition to subsequently receiving written and verbal warnings about her failure to follow the defendant’s policies. Furthermore, the defendant argues that the plaintiff also wrote an inappropriate message about a co-worker alleging drug use, disregarded an assignment deadline, and had trouble meeting the job’s requirements.
To refute the defendant’s argument, the plaintiff provided the following evidence: the deposition of Jendayi Scott; CareCentrix’s corrective counseling record for the plaintiff, dated June 15, 2015; the deposition testimony of Leeanne Lawrence, the plaintiff’s first supervisor; a document titled Executive Assistant; the deposition of Lori Musante; a document titled Jendayi Scott; and documents commending the plaintiff’s performance at work.
Some evidence provided by the plaintiff was unauthenticated and therefore inadmissible at trial. However, the defendant did not raise the issue of inadmissibility in her reply and, in the court’s discretion, the court has considered the evidence.
The plaintiff contends that she was qualified for her position with the defendant. At her deposition, the plaintiff testified that in addition to her duties, she performed duties for other departments. Further, the plaintiff testified that her disability did not prevent her from performing her job functions. Rather, while performing duties for other departments, she received numerous compliments and rewards for the work that she did. The plaintiff admits that there were times when she missed lunch punches at work; however, this was as a result of being at other locations assisting other departments. The plaintiff further testified that she did not have access to her computer while at these other work stations, and that subsequent to her corrective counseling by the defendant, she was praised by the defendant for getting better at her punches.
The plaintiff testified at her deposition that she was instructed by the defendant to inform someone in her department of duties being worked on for other departments.
The plaintiff contends that she did not have an issue with being able to perform her job functions; to the contrary, the hours given to complete the job were unrealistic. "In determining whether an employee meets the qualifications of [her] job and whether [her performance] is satisfactory, courts may rely- as they often must- on evaluations rendered by supervisors ... Job performance cannot be assessed in a vacuum; the ultimate inquiry is whether an employee’s performance meets [her] employer’s legitimate expectations." (Citations omitted; internal quotation marks omitted.) Vandel v. Standard Motor Products, Inc., 52 F.Supp.2d 344, 348 (D.Conn. 1999), affirmed, 201 F.3d 433 (2d Cir. 1999), cert. denied, 530 U.S. 1274, 120 S.Ct. 2741, 147 L.Ed.2d 1006 (2000). The defendant pointed to one instance where the plaintiff turned in an assignment six hours late, but admits that the plaintiff was never spoken to about this being a problem, or reprimanded for her tardiness. On the basis of the evidence, there exists a genuine issue of material fact as to whether the plaintiff was qualified to perform her job.
The defendant also provided unauthenticated work documents including e-mails referring to the plaintiff’s work. The plaintiff has not contested the authenticity of such evidence and the court has discretion to consider such evidence.
ii: Prong Four-Adverse Treatment
Next, the defendant argues that the plaintiff cannot establish the fourth prong because she cannot demonstrate that she was terminated because of her disability. "[T]he mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the ... analysis." Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001). The plaintiff contends that she was replaced by a temp without any physical or mental disabilities. Therefore, the plaintiff has met her burden as to a prima facie showing.
In addition, the plaintiff testified at her deposition that she made the defendant aware of her disability at the onset of her employment, and she informed the defendant of her upcoming doctor’s appointments. She further testified that her appointments were initially approved by her first supervisor. However, she was later informed by a subsequent supervisor that she was prohibited from taking this time off. The plaintiff also testified that she canceled the appointments because the defendant failed to approve her time off. The plaintiff was not terminated at some point before she collapsed and was taken away in an ambulance. Instead, the defendant terminated the plaintiff while she was still out sick. The defendant also terminated the plaintiff after the plaintiff allegedly presented her supervisor with a letter from her doctor releasing her from work for that period of time. Furthermore, the defendant contends that the decision to terminate was made over the weekend, while the plaintiff was out sick.
There exists a genuine issue of material fact whether the defendant terminated the plaintiff because of her disability.
iii: Pretext
The plaintiff has met her burden of proving her prima facie case of disability discrimination, and the defendant has provided the court with a nondiscriminatory reason for terminating the plaintiff’s employment. The defendant contends that at the time of the plaintiff’s termination, her job performance was not satisfactory, and that the decision to terminate was made before the plaintiff was taken away to the hospital. However, the plaintiff has also provided evidence, based on her testimony, that the defendant did not terminate her because of poor performance. Accordingly, the plaintiff has satisfied her burden of showing that the defendant’s reason for terminating her employment is pretext.
B: Count Two- Retaliation
To maintain a retaliation claim, "a [p]laintiff must prove (1) that he engaged in protected activity; (2) that [the] defendant was aware of this participation; (3) that [the] [p]laintiff suffered an adverse employment action; and (4) that a causal connection exists between the protected activity and the adverse employment action." Kessler v. Westchester County Dept. Of Social Services, 461 F.3d 199, 204 (2d Cir. 2006). Additionally, "[i]t shall be a discriminatory practice in violation of this section: (4) [f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84." See General Statutes § 46a-60.
The defendant argues that the plaintiff cannot prove her retaliation claim because she cannot establish a connection between the activity that she claims is protected and the adverse action because the decision to terminate was made prior to October 5, 2015. The plaintiff contends that she engaged in a protected activity when she requested personal time off (PTO) for a medical appointment. The plaintiff argues that this is protected activity, and the defendant did not grant the plaintiff’s PTO request to take time off to go to her doctor’s appointment.
The plaintiff further contends that the defendant terminated her in retaliation for asking her supervisor to take time off, because she was terminated after making such request. The defendant contends that the plaintiff was told that her October 8, 2015, October 9, 2015, and October 12, 2015, time off requests were contingent on the plaintiff providing a list of her activities to Musante by 5 p.m. on Friday, October 2, 2015. The defendant contends that the plaintiff did not turn in this assignment on time. On October 7, 2015, a short time after this event, the defendant terminated the plaintiff.
"We first note that a medical leave of absence is a recognized form of accommodation." Thomson v. Dept. of Social Services, supra, 176 Conn.App. 130. As stated above, "[a] plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment ... such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." (Citation omitted; internal quotation marks omitted.) Amato v. Hearst Corp., supra, 149 Conn.App. 781. A genuine issue of material fact exists as to whether the plaintiff was terminated after requesting time off based on her disability. Accordingly, the defendant’s motion for summary judgment on the plaintiff’s retaliation claim is denied.
C: Count Three- Reasonable Accommodation
"In order to survive a motion for summary judgment on a reasonable accommodation claim, the plaintiff must [first establish a prima facie case of disability discrimination by] produc[ing] 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 [the defendant], despite knowing of [the plaintiff’s] disability, did not reasonably accommodate it." (Internal quotation marks omitted.) Thomson v. Dept. of Social Services, supra, 176 Conn.App. 128-29. 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. See Freadman v. Metropolitan Property & Casualty Ins. Co., 484 F.3d 91, 103 (1st Cir. 2007).
"The plaintiff bears the burdens of both production and persuasion as to the existence of some accommodation that would allow her to perform the essential functions of her employment ..." McBride v. BIC Consumer Products Manufacturing Co., 583 F.3d 92, 97 (2d Cir. 2009). "To satisfy this burden, [the] [p]laintiff must establish both that [her] requested accommodation would enable [her] to perform the essential functions of [her] job and that it would allow [her] to do so at or around the time at which it is sought." (Citations omitted.) Thomson v. Dept. of Social Services, supra, 176 Conn.App. 129. Additionally, "[o]nce a disabled individual has suggested to his [or her] employer a reasonable accommodation ... 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.) Id., 129.
The defendant argues that the plaintiff’s failure to accommodate claim is baseless because she testified that she did not request an accommodation, and that her pain never hindered her from doing her work. Additionally, the defendant argues that the plaintiff fails to identify the time off that was never approved, and further contends that all requests for time off were granted. To the contrary, the plaintiff contends that Musante prohibited her from taking time off, despite it being initially approved.
First, the plaintiff testified at her deposition that in a "general conversation" she informed her first supervisor, Leeanne Lawrence, of her pains, and that she suffers from MS. One can infer from this testimony that the plaintiff made the defendant aware of her disability. Second, in its motion for summary judgment, the defendant contends that the plaintiff’s time off was "contingent" on her providing a list of activities to the defendant by a certain time. The plaintiff did not provide this information to the defendant on time.
"The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff’s favor." (Internal quotation marks omitted.) Tomick v. United Parcel Service, Inc., 157 Conn.App. 312, 327, 115 A.3d 1143 (2015). There is no indication that the plaintiff’s failure to provide the requested material on time would cause the defendant any undue burden. On the basis of the evidence provided to the court, there is a genuine issue of material fact in dispute, whether the defendant failed to provide reasonable accommodation to the plaintiff because of her disability. Accordingly, the defendant’s motion for summary judgment on the plaintiff’s reasonable accommodation claim is denied.
D: Count Four- Regarded as Disabled
The defendant argues that the plaintiff’s fourth count should fail because she fails to allege specific facts from which it may be inferred that the defendant in fact regarded her as disabled. The plaintiff argues that the defendant questioned the necessity of the plaintiff s medical appointments, she collapsed at her job prior to her termination, and the plaintiff handed a doctor’s note to the defendant, and was terminated immediately after.
The plaintiff relies on Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 105 A.3d 103 (2014), for the proposition that the defendant’s reactions to the plaintiff’s appointments were sufficient for a jury to find that the defendant regarded the plaintiff as disabled. There, the Supreme Court stated that protection is granted to employees regarded as disabled. "After considering the intended scope of the term physically disabled in the context of the legislative history of the act and the decisions of the commission, we conclude that § 46a-60(a)(1) protects individuals who are regarded as physically disabled from employment discrimination. To interpret the statute otherwise would be inconsistent with the legislature’s efforts to define physically disabled to cover as many people as possible under the definition and leave it open and broad ... and with the legislature’s consistent intent to increase protections for individuals with disabilities." (Citation omitted; internal quotation marks omitted.) Desrosiers v. Diageo North America, Inc., supra, 314 Conn. 794.
The plaintiff testified at her deposition that she discussed her pains and her upcoming doctor’s appointments with her then supervisor. The plaintiff further testified that she also discussed suffering from a medical condition with Lorrie Ferraro. Moreover, the plaintiff testified that she had a conversation with Musante about her medical condition and her upcoming appointments, in addition to being assured that her time off to seek treatment was all set. The plaintiff further testified that Musante introduced her to bee therapy for her MS. Based on the facts presented, the plaintiff has sufficiently presented evidence from which it may be inferred that the defendant regarded her as being disabled. Accordingly, the defendant’s motion for summary judgment on count four is denied.
CONCLUSION
For the reasons stated above, the motion for summary judgment is denied. It is so ordered.