Opinion
NNHCV146049093
03-02-2017
John E. Palmer v. Brook & Whittle LTD.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, Judge of the Superior Court.
The plaintiff has brought this action for damages against his former employer, Brook & Whittle, LTD (B& W). The plaintiff's third revised complaint consists of three counts: (1) the defendant retaliated against him for exercising his free speech rights in violation of General Statutes § 31-51q; (2) the defendant failed to accommodate the plaintiff's disability in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § § 46a-58 et seq.; and (3) the defendant terminated the plaintiff's employment due his request for an accommodation for his disability in violation of CFEPA. The defendant has moved for summary judgment claiming that there is no genuine issue as to any material fact and that it is entitled to judgment on all three counts of the complaint as a matter of law.
" Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158, 698 A.2d 938 (1997).
" It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counter affidavits 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 and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06, 639 A.2d 507 (1994).
B& W describes itself as a printing and packaging solution company which produces labels and packaging for various commercial entities in the personal care, household and food and beverage industries. B& W has two facilities in Connecticut, one in Guilford and one in North Branford.
The plaintiff's complaint contains the following allegations. The plaintiff was initially hired by the defendant in June 2011 as the third-shift press hall supervisor at the Guilford plant. In the fall of that same year, the plaintiff became the plant manager in Guilford. As plant manager, the plaintiff was responsible for overseeing the day-to-day operations at the Guilford plant. The plant manager position was subsequently eliminated and the plaintiff became a quality assurance manager at the Guilford plant. In April or May 2012, the plaintiff's office was moved to a location which the plaintiff alleges was improperly ventilated and inundated with chemical fumes and smells. The plaintiff suffers from multiple chemical sensitivities and he suffered various adverse medical symptoms, including dizziness, nausea and difficulty swallowing, as a result of the location of his office. The defendant refused to accommodate his disability by rejecting his requests to move his office. On May 3, 2013, the defendant terminated the plaintiff's employment because he spoke out about the pay differential and sought accommodation for his medical condition.
I
COUNT ONE: RETALIATION IN VIOLATION OF GENERAL STATUTES § 31-51q
The plaintiff alleges in count one of his complaint that the defendant took adverse employment actions against him due to his exercise of his free speech rights in violation of General Statutes § 31-51q. The plaintiff asserts that he was disciplined for addressing a pay inequity at the Guilford plant when it was brought to his attention. In his affidavit, the plaintiff avers that, after becoming plant manager at the Guilford plant, he learned that the salaried supervisors at the North Branford plant were receiving a $32 per hour premium for overtime and weekend work, a premium that was not being paid to salaried supervisors at the Guilford plant. Thereafter, the plaintiff directed the payroll supervisor to begin paying a similar premium to the Guilford supervisors. The plaintiff further asserts that his relationship with Jonathan Collins, the vice president of operations, deteriorated as a result of his action regarding the pay differential and that various adverse actions were taken against him in retaliation, including reassignment to a less desirable position and office and ultimately termination of his employment.
General Statutes § 31-51q provides in pertinent part: " Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages . . ."
The defendant contends that summary judgment should enter on count one because the plaintiff was not exercising constitutionally protected free speech rights when he took steps to address the perceived inequity in pay. I agree.
The defendant also contends that the plaintiff failed to present any evidence of a causal connection between the exercise of his constitutional rights and any adverse employment action. I need not address this claim as I am persuaded that summary judgment should enter on count one because the plaintiff was not exercising his free speech rights when he addressed the perceived pay inequity.
Section 31-51q creates a statutory cause of action for damages against an employer for an employee who has been subjected " to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States [c]onstitution or section 3, 4 or 14 of article first of the [c]onstitution of the state . . ." " Section 31-51q extends protection of rights of free speech under the federal and the state constitutions to employees in the private workplace. The statute is not limited to freedom of speech in the public arena." Cotto v. United Technologies Corp., 251 Conn. 1, 16, 738 A.2d 623 (1999). " Those constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999). Speech that addresses a matter of public concern involves statements that can be fairly considered as relating to any matter of political, social, or other concern to the community. Id., 779. That determination is made by evaluating the content, form, and context of a given statement, as revealed by the whole record. Id. " It is well settled that internal employment policies are not a matter of public concern." Id., 783.
In Schumann v. Dianon Systems, Inc., 304 Conn. 585, 598, 43 A.3d 111 (2012), the court concluded that the decision of the United States Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), holding that speech pursuant to a public employee's official job duties was not protected by the first amendment, applies to claims brought pursuant to § 31-51q against a private employer that are based on the first amendment. The court further concluded that Garcetti added a threshold layer of analysis, requiring courts to first determine whether an employee is speaking pursuant to his official duties before turning to the remainder of the first amendment analysis. Schumann v. Dianon Systems, Inc., supra, 304 Conn. 604. If the employee was speaking as an employee rather than as a citizen, the speech is not protected by the first amendment.
In Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 179, 123 A.3d 1212 (2015), the court further concluded that the rule of Garcetti v. Ceballos, supra, does not apply to claims pursuant to § 31-51q against a private employer that are based on the Connecticut Constitution. Rather, a modified form of the Pickering/Connick balancing test applies to such claims. Id. " [U]nder the Pickering/Connick balancing test, employee speech in a public workplace is protected from employer discipline if it involves a matter of public concern and if the employee's interest in commenting on the matter outweighs the employer's interest in promoting the efficient performance of public services." Id., 184. The modified Pickering/Connick balancing test adopted by the court in Trusz v. UBS Realty Investors, LLC was the test articulated by Justice Souter in his dissenting opinion in Garcetti v. Ceballos, 547 U.S. 410, 435, 126 S.Ct. 1951, 164 L.Ed.2d 689. Under this modified test, the employee could prevail only if " he speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it" and " only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor" when an employee is speaking pursuant to official job duties. Trusz v. UBS Realty Investors, LLC, supra, 319 Conn. 204. " Thus, under Justice Souter's proposed standard, speech pursuant to an employee's official duties regarding, for example, a mere policy disagreement with the employer would not be protected, even if it pertained to a matter of public concern and had little effect on a legitimate employer interest." Id.
Here, the plaintiff alleges that he was exercising his free speech rights under the first amendment to the United States Constitution and sections 3, 4 and 14 of article first of the Connecticut Constitution by curing an inequity in supervisors' pay in the Guilford plant and thereby drawing attention to the inequity. The defendant argues that he was exercising his free speech rights as he was addressing a matter of public concern, that is, the issue of pay inequity. The plaintiff's claim fails as a matter of law. The plaintiff was indisputably acting pursuant to his official duties in directing the payroll supervisor to increase the pay for Guilford supervisors and accordingly was not exercising his first amendment rights under the test set forth in Garcetti v. Ceballos, supra . The plaintiff does not argue that he was acting as a private citizen when he addressed the pay inequity. Rather the activity stemmed from and was of the type that the plaintiff was paid to do as an employee. See Schumann v. Dianon Systems, Inc., supra, 304 Conn. 614.
He was also not exercising his free speech rights under the Connecticut Constitution as he was not commenting on " official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety" as required by the test adopted by the court in Trusz v. UBS Realty Investors, LLC, supra . The plaintiff does not claim that the pay differential violated any state or federal law. A mere policy disagreement with an employer, even one pertaining to a matter of public concern, is not covered by the protections of § 31-51q. Trusz v. UBS Realty Investors, LLC, supra, 319 Conn. 212.
II
COUNT TWO: FAILURE TO ACCOMMODATE IN VIOLATION OF CFEPA
In count two of his third revised complaint, the plaintiff alleges that the defendant refused to offer him a reasonable accommodation in violation of General Statutes § 46a-60(a)(1). See Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008) (Section 46a-60(a)(1) requires employers to make a reasonable accommodation for an employee's disability). The plaintiff alleges that he suffers from multiple chemical sensitivities, which he claims is a medical condition evidenced by an unusually severe sensitivity or allergy-like reaction to different types of pollutants, solvents and chemicals. He further alleges that he suffered significant adverse medical effects, including dizziness and difficulty swallowing, following the movement of his office by the defendant to an unventilated room near a washroom and chemical room. According to the plaintiff, the defendant refused the plaintiff's request to move his office due to his medical condition.
The defendant has moved for summary judgment on this count asserting that: (1) chemical sensitivities are not a recognized disability; (2) the plaintiff failed to notify the defendant of his medical condition; and (3) the plaintiff could not perform the essential functions of his job. The plaintiff responds that each of these claims involves disputed issues of material fact precluding the entry of summary judgment. I agree with the plaintiff.
" 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) he is disabled within the meaning of the statute, (2) 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." (Internal quotation marks omitted and citations omitted.) Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415.
The plaintiff has submitted an affidavit affirming that he suffers from " multiple chemical sensitivities." The defendant contends that the plaintiff's claim that he suffers from multiple chemical sensitivities does not meet the definition of physically disabled under CFEPA. Section 46a-51(15) provides that " 'Physically 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." The defendant claims that chemical sensitivity is not a physical disability and cites to a number of decisions from courts outside of Connecticut as support for this position. The cases cited by the plaintiff have limited their conclusion that chemical sensitivity is not a protected disability under the Americans with Disabilities Act (" ADA"), 42 U.S.C. § 12101 et seq., to instances in which it is clear that the affliction did not extend beyond the workplace. See, e.g., Jones v. Indiana Civil Rights Commission, No. 1:02CV1701SEBVSS, 2006 WL 753116, at *3 (S.D.Ind. Mar. 17, 2006) (The plaintiff was not afflicted with the reaction to her chemical sensitivities at her home) and Mulloy v. Acushnet Co., No. CIV.A. 03-11077-DPW, 2005 WL 1528208, at *5 (D.Mass. June 20, 2005), aff'd, 460 F.3d 141 (1st Cir. 2006) (The plaintiff had breathing difficulties at a particular job at a particular location and was not symptomatic most of the time). There is no evidence in the record before me that the plaintiff's claimed chemical sensitivities are limited as to time or place.
The defendant also argues that the plaintiff failed to provide it with notice of his disability and points to the affidavit of Jonathan Collins, its vice president of operations, that the plaintiff never notified him that the plaintiff needed to move his office because of any type of medical condition and the plaintiff's deposition in which he states that during the interview process for his job with the defendant he did not inform the defendant that he had a sensitivity to chemicals. In response, the plaintiff points to his affidavit in which he states that he suffers from multiple chemical sensitivities, that he suffered significant medical symptoms as a result of the location of his office, that he complained on numerous occasions to management officials that the chemical fumes and smells in his office were making him sick and that he requested that his office be moved as a result. His affidavit also states that he spoke to Collins and " demanded that his office be moved because of my chemical sensitivities." In light of these competing versions of the facts, summary judgment on this issue is not appropriate.
Finally, the defendant asserts that the plaintiff cannot establish a prima facie case of disability discrimination because he was unable to perform the essential functions of his job. The defendant points to the portions of the plaintiff's deposition in which he states that he resigned his position as quality assurance manager because he could not keep up with the workload. In his affidavit, the plaintiff avers that, following a partial collapse of the roof at the Guilford plant, his workload increased substantially. He further avers that he was performing many duties not related to his position. These factors caused him to request additional assistance. Whether the plaintiff was able to perform " the essential functions" of his job with or without accommodation is not directly addressed by the portions of the plaintiff's deposition provided by the defendant and remains in substantial dispute.
III
COUNT THREE: RETALIATION IN VIOLATION OF CFEPA
In count three of his third revised complaint, the plaintiff alleges that the defendant violated § 46a-60(a) by terminating his employment in retaliation for his reporting his medical condition to his employer and requesting an accommodation. The statute provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . (4) [f]or any . . . employer . . . to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice . . ." General Statutes § 46a-60(a)(4).
" To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against him; and (4) a causal connection between the protected activity and the adverse employment action. McMenemy v. Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001)." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).
The defendant asserts that the plaintiff voluntarily left its employ for reasons unrelated to any request for an accommodation. Accordingly, it asserts that the plaintiff cannot meet elements (3) and (4) of his prima facie obligation. After reviewing the submissions of the parties, I conclude that the uncontradicted evidence establishes there was no causal connection between the termination of the plaintiff's employment and his request for an accommodation for his medical condition.
Although the defendant also contests whether the plaintiff can meet any of the elements of the prima facie test, I decline to address those claims since I agree that the uncontradicted evidence supports entry of summary judgment on the issue of causation.
It is unclear whether a request for accommodation is a protected activity under § 46a-60(a). While numerous federal courts have held that requesting a reasonable accommodation is a protected activity under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., see, e.g., Payne v. PSC Industrial Outsourcing, Ltd. Partnership, 139 F.Supp.3d 536 (D.Conn. 2013) and Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003), the few Connecticut courts that have considered the issue in regard to CFEPA have concluded that § 46a-60(a)(4) does not apply to a request for a reasonable accommodation. See, e.g., Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Docket No. X06-CV-12-6014260-S (October 31, 2012) (Agati, J.) [54 Conn.L.Rptr. 887, ] (" The issue raised . . . is whether requesting reasonable accommodation for one's own disabilities qualifies as 'oppos[ing] [a] discriminatory employment practice' for purposes of alleging retaliation under § 46a-60[a][4]. It does not"). I need wade into this issue as I assume without deciding that a request for accommodation is a protected activity under § 46a-60(a)(4).
The defendant in support of its motion for summary judgment provided numerous pages of the defendant's deposition in which he states that he left his job because he could no longer handle the workload required by his position as quality assurance manager of the Guilford plant. The amount of work had substantially increased when the roof of the plant partially collapsed due to a severe snowstorm. In addition, the plant was operating a larger number of presses. The plaintiff stated that he asked management for assistance getting the work done, specifically additional staff, but his request was denied. In his deposition, the plaintiff stated that he told a supervisor that: " I just can't do this anymore by myself. I have to have some help or I'm going to have to leave. I just can't do it." At another point in his deposition, the plaintiff stated that he told management: " I cannot do this anymore. I cannot do this anymore by myself. I am doing the work of four people that you have in North Branford . . . I can't keep up with company standards as far as signing off on stuff every hour, and physically I just can't do this by myself anymore, so if you're going to tell me you're not going to give me any help, I have no other option but to leave." It is undisputed that the plaintiff subsequently left the company on April 8, 2013.
In response, the plaintiff submitted an affidavit in which he avers that he was terminated from his job and did not voluntarily resign. He agrees that he told the company that he could no longer do his job without assistance because of the roof collapse and his increased workload and that his requests for assistance were denied. He also told management that he could not continue to work without additional assistance. His affidavit is significant for what it does not say, that is, that his job termination by the defendant was motivated, in any way, by retaliation for his requests for accommodation for his medical condition. In fact, the plaintiff has submitted no evidence that his request for accommodation played a role in his termination.
In light of the evidence submitted by the defendant that the plaintiff left his job due to his inability to handle the increased workload and the lack of any evidence that his job was terminated due to his request for an accommodation, the plaintiff has failed to establish a prima facie case of retaliation, specifically, a causal connection between his request for an accommodation and his employment termination. The plaintiff's claims are limited to the bare conclusory assertion in his complaint that the defendant retaliated against him because of his request for an accommodation of his medical condition; such statements are insufficient to survive a motion for summary judgment. Marasco v. Connecticut Regional Vocational-Tech. School System, 153 Conn.App. 146, 164, 100 A.3d 930 (2014).
IV
CONCLUSION
In light of the above, the defendant has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law as to counts one and three of the third revised complaint. Accordingly, the defendant's motion for summary judgment is hereby granted as to those counts of the plaintiff's complaint. The defendant's motion for summary judgment as to the second count of the plaintiff's complaint is hereby denied.