Opinion
WWMCV156009136
01-16-2018
Melanie PEREZ v. STATE of Connecticut JUDICIAL DEPARTMENT
UNPUBLISHED OPINION
OPINION
Boland, Senior Judge
I. Introduction
This memorandum follows a full trial to the court. Plaintiff in this action sues her employer alleging breaches of Conn. Gen. Stat. § 46a-60(a), part of the Connecticut Fair Employment Practices Act or CFEPA. Plaintiff has at all times material to this action been an employee of the Judicial Branch of the state of Connecticut. Her job title is Adult Probation Officer II. Her assignment has been to the probation office which the Branch administers in the borough of Danielson. She marked her 49th birthday in the course of the trial, and has spent essentially her entire career as a probation officer.
The statute provides that " 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 or physical disability, including, but not limited to, blindness.
§ 46a-51(10) specifies that " ‘Employer’ includes the state and all political subdivisions thereof."
Among the statute’s prohibitions is any employment practice discriminating against an employee with a physical disability. Her disability is difficulty in hearing. She has filed a single-count complaint claiming that the defendant discriminated against her on account of this disability in two ways: first, by refusing to provide her with a reasonable accommodation and by failing to engage with her in an interactive process aimed at finding such an accommodation, and then by shunning her and subjecting her to less favorable work assignments in retaliation for her efforts to seek a reasonable accommodation. Alleging that defendant acted with malice or reckless indifference to her statutory rights, or intentionally and wantonly, she seeks punitive damages in addition to compensatory damages for lost wages and employment benefits, emotional distress, loss of enjoyment of life, and loss of enjoyment of her profession. Additionally, she seeks attorneys fees and costs, and prejudgment interest on the amounts awarded.
Aside from acknowledging plaintiff’s hearing difficulty, defendant denies the remaining essential elements of the complaint. In addition, it pleads as special defenses that 1) plaintiff has failed to state a valid claim upon which relief may be granted; 2) defendant had legitimate non-retaliatory reasons for all actions taken with respect to plaintiff; and 3) defendant would have taken the same actions with respect to plaintiff even in the absence of the alleged protected activity. For her part, plaintiff denies all three.
Defendant pled as a fourth special defense " the right to assert additional special defenses as they become known through discovery." Apparently there are none, as no amended answer or special defenses have been filed.
The statute’s expansive enumeration of prohibited acts and protected statuses permits cases raising a broad array of factual issues to arise within its ambit. Plaintiff has pled her case here solely invoking this statute, whose provisions are particular to Connecticut law. Nonetheless, we are informed by Curry v. Allan S. Goodman, Inc., 286 Conn. 390, at 415 (2008) that judicial review of an employer’s handling of such a case may rely upon " federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." " Federal employment discrimination law divides prohibited employment practices among various statutes. Title VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.] prohibits discrimination on the basis of race, color, religion, sex and national origin; the ADEA [the Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq.] prohibits discrimination on the basis of age; and the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq., prohibits discrimination on the basis of physical disability. Thus, the federal courts ... can interpret identical language appearing in Title VII, the ADEA and the ADA and reach differing conclusions as to what the language means in each instance ... The traits protected at the federal level by Title VII, the ADA and the ADEA are all protected by a single statute in Connecticut- CFEPA ... It [is] largely unworkable to ascribe different interpretations to the same language in the same statute depending on the context in which the statute is invoked"; Dwyer v. Waterfront Enterprises, Inc., Superior Court, judicial district of, Docket No. CV 12 6032894S (May 24, 2013; B. Fischer, J.) . See, Ware v. State, 118 Conn.App. 65, 82 (2009).
Amato v. Hearst Corp., 149 Conn.App. 774, 779 (2014), informs us that while " [i]n interpreting our antidiscrimination and antiretaliation statutes, we look to federal law for guidance" we do so because " [i]n drafting and modifying the Connecticut Fair Employment Practices Act ... our legislature modeled that act on its federal counterpart, Title VII [of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.] ... and has sought to keep our state law consistent with federal law in this area." However, the CFEPA is not coextensive with the ADA. The CFEPA does not contain a requirement that a plaintiff’s impairment substantially limit a major life activity. See Beason v. United Techs. Corp., 337 F.3d 271, 276 (2d Cir. 2003). Thus guidance, not strict adherence, is the operative word in this exercise.
Failure to provide reasonable accommodations is a violation of the statute distinct from that of retaliation against an employee who is protected after raising issues arising under the statute. The two claims must be analyzed separately.
II. The Accommodations Claim
When the gravamen of a claim is discrimination due to a failure to accommodate a discrete physical disability, Curry informs us that the elements of such a claim require a plaintiff to show " 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"; id., 415. Plaintiff in Curry alleged CFEPA discrimination on the part of an employer whom he accused of failing to accommodate a physical disability, and he drafted his complaint along lines similar to those in the case at bar. After an employee has launched a plausible claim for an accommodation, both parties must participate in an " informal, interactive process ... [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations"; 29 C.F.R. § 1630.2(o)(3). The employee’s responsibility in this process is to " come forward with some suggestion of accommodation, " and the employer’s responsibility is to " make a good faith effort to participate in that discussion"; Curry, id., 416. " In the context of the Americans with Disabilities Act as Amended, or ADAAA, reasonable accommodation may include " modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position ... 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 ..." (Citations omitted; internal quotation marks omitted.) McBride v. BIC Consumer Products Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009); 29 CFR § 1630.1(o). " 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." Thomson v. Department of Social Services, 176 Conn.App. 122, cert. denied, 327 Conn. 962 (2017).
The Americans with Disabilities Act has since 2010 been referred to as the Americans with Disabilities Act as Amended, or ADAAA, in light of substantial changes enacted into law in that year.
Whether or not an employer’s accommodation is reasonable is " a fact-specific question that often must be resolved by a factfinder"; Noll v. Int ’l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015). In fact, Curry n otes, " [a] policy- whether express or by application- that eliminates the individualized assessment of each disabled employee for purposes of reasonable accommodations is ... illegal"; Curry, supra, fn.23. A court reviewing claims that an employer has neglected its duties under this statutory mandate must similarly conduct a fact-intensive inquiry into the situation; Jones v. Department of Children and Families, 172 Conn.App. 14 (2017).
A. Plaintiff’s Disability
Conn. Gen. Stat. Sec. 46a-51(15) lists " deafness or hearing impairment" as one of the conditions rendering a person " physically disabled." The parties have stipulated that plaintiff has been diagnosed with and suffers from bilateral moderate to severe hearing loss. Plaintiff communicated notice of that condition to defendant’s personnel by a written memo dated June 6, 2012, and had verbally alerted them to its general presence some weeks before that date.
To be precise, the term used in plaintiff’s medical records to describe her condition is " bilateral high frequency sensorineural hearing loss with hyperacusis and difficulty hearing." The minor deviation between that label and the parties’ stipulation is inconsequential. Either description is adequate to prove that she has a statutorily-relevant disability and thus satisfies the first prong of the Curry test. " The ability to hear is a basic human need materially affecting daily activity and a substantial hearing impairment plainly requires medical treatment by a physician ... Much like the inability to see, [one’s] inability to hear may render him exceedingly vulnerable to danger and harm from his unperceived surroundings ... After all is said and done, the inability to hear ‘means the loss of the most vital stimulus- the sound of the voice that brings language, sets thoughts astir and keeps us in the intellectual company of man’ "; Gilmore v. Hodges, 738 F.3d 266, 275-6 (11th Cir. 2013).
To accurately adjudicate the performance and accommodation prongs of the Curry test is facilitated by appreciating some additional aspects of her plight. Throughout the pendency of this case and for many years prior thereto, she has been a patient of Dr. Seema Naravane, her primary physician, and of Dr. Thomas Klein, a hearing expert. Dr. Naravane made the above diagnosis in 2008, just about as she turned forty. A report Klein prepared in 2012, however, states that she " has been aware of a hearing loss in both ears for at least 5 to 10 years, " indicating that her auditory problems may have manifested themselves sometime between 2002 and 2007.
Plaintiff did not call either doctor as a witness, although Dr. Naravane’s deposition was admitted as an exhibit. Many if not all certain of their reports were admitted as trial exhibits.
In 2008 plaintiff had an " Adult Audiological Evaluation" which was conducted on December 12. Such an evaluation measures hearing loss quantitatively in degrees related to the decibel level required to enable a person to perceive speech. The evaluation utilizes a 0-100 scale on which a person with no hearing loss would be rated at zero, while a person profoundly deaf would be rated at 100. " Moderate to severe loss" spans a range from 56-70 dB, a little over center point on this spectrum, and is marked by a need for speech to be louder and by some difficulty in group conversations. As the title implies, " moderate to severe hearing loss" is a grey zone positioned between the categories of " moderate loss" (41-55 dB- causing difficulties understanding speech, especially in the presence of background noise) and " severe loss" (71-90 dB- regular speech is inaudible, and one may experience difficulty even in understanding loud speech).
The 2008 test showed normal or near normal hearing at frequencies up to 2000 Hz, but showed loss progressing into the 50-60 dB range in both ears at frequencies above 4000 Hz. In practical terms these results predict that she would have difficulty, including measured loss, with understanding speech spoken at a " normal" volume. The presence of background noise would be expected to exacerbate the problem.
Klein ordered a second evaluation in March of 2012 and a third in January of 2014. Except for some slight falling off at lower frequencies measured between 2008 and 2012, each of these tests place plaintiff on the same point in the scale as in the first test. Over the six years shown in these evaluations, therefore, Klein describes her condition as showing " no essential change" (2012) and being " relatively stable" (2014).
Plaintiff testified that she had been tested six times, but presented only three test results as exhibits.
B. Plaintiff’s Proof of Ability to Perform Her Job with or without Reasonable Accommodation
The parties stipulated that plaintiff is qualified for the position of Probation Officer. Standing alone, this satisfies the second prong of Curry, as it indicates that she is able to perform her job with or without reasonable accommodation. A disabled individual is qualified for a particular position if he can perform the essential functions of the job with or without reasonable accommodation; Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3 d 113 (2d Cir. 2004).
The Code of Federal Regulations includes a clear illustration of how the performance and accommodation halves of this prong interrelate. This appears at 29 C.F.R., Appendix to Part 1630. Interpretive Guidance on Title I of the Americans with Disabilities Act:
The determination of whether an individual with a disability is " qualified" should be made in two steps. The first step is to determine if the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc. For example, the first step in determining whether an accountant who is paraplegic is qualified for a certified public accountant (CPA) position is to examine the individual’s credentials to determine whether the individual is a licensed CPA. This is sometimes referred ... as determining whether the individual is " otherwise qualified" for the position ...
The second step is to determine whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation. The purpose of this second step is to ensure that individuals with disabilities who can perform the essential functions of the position held or desired are not denied employment opportunities because they are not able to perform marginal functions of the position. The determination of whether an individual with a disability is qualified is to be made at the time of the employment decision.
Abundant evidence exists to buttress the succinct phrasing employed in the parties’ stipulation. In the years in which the present controversy has played out- 2012 through the present- plaintiff has served the Branch with a recurrent " satisfactory" assessment, in a realm in which " satisfactory" or " unsatisfactory" are the only adjectives the employer is allowed to apply to an employee’s performance. Defendant has raised no issues concerning her attendance, comportment, attention to her clients’ needs, or her ability to meet the responsibilities delegated to her consistent with all supervisors’ expectations. There is no question that she has proven the second prong, as she did the first.
C. Plaintiff’s Need for Reasonable Accommodations
1. Facts
Inherent in plaintiff’s job as a probation officer is the need to meet with clients at her office for interviews and counseling. The job additionally requires regular work in the field visiting clients in their homes and workplaces, and the preparation of a substantial volume of paperwork. Telephone contact is also a routine activity. Plaintiff has identified the office meetings and telephone contacts as the primary source of the difficulties that gave rise to this lawsuit. In her words, she simply could not hear her interlocutors and was experiencing headaches and other stressful symptoms as a consequence. Intensively over the six months beginning in April of 2012, plaintiff pressed the issue of her need for accommodations that recognized her hearing loss. Her demands took various forms. All stemmed from her difficulties in hearing after the office was moved to a new building, and to which she was transferred on April 5, 2012.
a) Background
To fully understand and evaluate the specific complaints that move generated, it is useful to outline the various physical settings in which the plaintiff has worked for defendant since the inception of her hearing difficulties.
i. 183 Main St.
Throughout decades prior to 2012, the Danielson Adult Probation Office occupied the second floor of an antiquated building at 183 Main St. Situated about one hundred yards from the Danielson courthouse and thus inescapably in view of any user of that facility, the building’s exterior suggests that it might have originally been a nineteenth-century hotel or inn. It is undisputed that its second floor includes about six small offices arranged along a central hallway. Plaintiff had worked there for six years prior to 2010. During some of that time she shared an office with another probation officer, while on other occasions there was sufficient space available to allow her a private office. She was able to adjust to the obvious problems which would appear in such a small and compressed environment by setting up her desk so as to face the door, and by positioning herself face-to-face with clients. She was always able " to work around" her hearing disability. She attributed that success to the lack of an echo in the building.
This observation is not an adjudicative fact, as neither its age nor its historical use is pertinent to this case.
In March of 2010, as described below, the probation office was expanded to include space in a modern commercial building on the second floor of 134-6 Main St., and plaintiff was assigned to that site. For reasons unrelated to her hearing, plaintiff was repositioned from that location in November of 2011 to the facility at 183 Main St. There, for the next five months, she had a private office. The provision of a private office at that time had nothing to do with her hearing. Rather, she had observed that a junior staff member had a private office and asserted that she, as a senior member of the staff, ought to have a preference in assignment to that space. The defendant concurred and moved plaintiff into the private office setting.
ii. 134-6 Main St.
Along with many other staff members, plaintiff had moved in March of 2010 to a building near 183 Main, but across the street. In the new site, she was one of four officers assigned to a large, open room. The room had no partitions and no door that could be kept closed. Background noises were a part of the ambient environment, especially after the first six months when new technology was installed including a new phone system, a fax machine, and a metal detector. Plaintiff adjusted to this environment without apparent difficulty. She chose a corner position in the assigned office and arranged her desk and her book shelves to stand as a barrier to that ambient noise. For almost twenty months, in her own words, " it worked just fine."
iii. 190 Main St.
In April of 2012, the department opened a probation office in a two-story building at 190 Main St. and consolidated many of the Danielson venue functions in that new location. For more than a century, this building had been the home of the now-defunct Brooklyn Savings Bank. Like many nineteenth-century bank buildings, the entryway opens into a large atrium ringed by teller’s windows and similar service counters. Behind that public area sits a row of office spaces on the first floor. The atrium is open to the building’s roof, and thus the row of offices positioned on the second floor is also exposed to noise rising from the first. The new location allowed the two buildings between which probation’s services had previously been divided to be merged into a single site. The building was originally configured to house 12 probations officers and two chiefs, with that number having risen as high as 19 in total as additional personnel were added to the office.
The first floor includes locations numbered 100 through 110. 100 is the vestibule and 101 is a waiting room. Rooms 103 and 105 were divided into staff offices. 104 was an interview room, and 108 a conference room. 106 was the evidence room, 107 stored files and a computer which was part of the COLLECT system. Rooms 102 and 109 were bathrooms. 110 was a storage area for office supplies. The open central area where bank customers once milled about houses cubicles for four additional probation officers, and clerical staff.
" COLLECT" is an acronym for the Connecticut On-Line Law Enforcement Communications Teleprocessing System, a computer system whose purpose was to hook probation up with a national criminal incident database gathered by the FBI. In Connecticut, administration of the system is not provided by defendant but by the Connecticut State Police.
On the second floor, 201, 202, 204 and 206 were designated as staff offices. 200 and 203 were bathrooms. 205 was set aside as an interview room for the second floor’s occupants and is immediately adjacent to 204.
The basement contains some finished space and another large area utilized for storage. The finished space includes a lunch room and a staff lounge, two bathrooms, and a closed space including a vault and other components of the COLLECT system. None of the basement space has ever been used for offices.
At 190 Main St., the six staff office rooms had either two or three occupants. No individual, including the supervisors, had a private office.
b) Plaintiff’s Claims of Problems at 190 Main St. and Defendant’s Responses
i). Plaintiff’s initial workplace at the new site consisted of a desk in one of the corridor cubicles. These cubicles were probably the least private worksites within the building. Within just two weeks of arriving there, plaintiff communicated to her immediate supervisor, Scott Bonchuk, that she had a problem with excessive noise in that location. In an April 19 email; she indicated that it was difficult for her to work in her assigned space due to high noise levels within and in the neighborhood of her workspace. At this point, she was complaining of the behavior of her fellow staff members. She noted that this was a high traffic area and that her coworkers were inconsiderate in keeping noise levels down and also in utilizing their cell phones within earshot of her cubicle. Generically, this is conduct not unfamiliar to anyone who has spent any time in a semi-public space, and is annoying to everyone with or without a hearing impairment.
On the same day, the officer in charge of the entire Windham Judicial District probation office, Tina Merchant (whose personal station was also in the 190 Main St. building), issued an email to all staff to " please keep it quiet, " to " not carry on conversations with clients while en route from the main entrance to their assigned offices, " etc. Merchant also summoned all staff to a meeting on the following day at which these norms for behavior in the new building were personally reiterated.
ii). Plaintiff’s initial assignment to that cubicle had resulted, in part, from the fact that she and another staff member had previously been provided with a voice-activated typing program (Dragon) to assist them in preparing written reports. A consultant had recommended that the two employees using this software be placed in the same vicinity upon the move to the new building. Shortly after plaintiff’s April 19 complaint about hallway noise, she added the detail that the background noise was being picked up by and fouling the operation of the Dragon software. Merchant arranged to have her provided with a headphone set which filtered out ambient sound and apparently corrected that particular problem.
iii). About five days thereafter, plaintiff registered a complaint, relative to the lighting in her cubicle, stating that it was causing her headaches. Merchant proposed to transfer her from the first floor cubicle to Room 201, and that move was implemented on a trial basis on April 24. The trial seemed agreeable to plaintiff and she was thereupon assigned to 201, which housed two other officers. Plaintiff remained in that location until early July.
iv). Several weeks after April 19, plaintiff informed Bonchuk that she had other than normal hearing and that something more than the several adjustments Merchant had ordered would be required. In response, Bonchuk requested a copy of her doctor’s report and recommendations. By a memo dated June 6, plaintiff provided him a " progress note" Dr. Klein had authored dated May 14, 2012. In addition to documenting his longstanding diagnosis, that note indicated that " patient is very concerned about the environment at work and feels that she would be able to do much better and (sic) she had quiet environment." Under " Recommendations" he stated " patient will be given copies of her two audiograms and quieter work environment." This is the first time that plaintiff identified to her employers that she had a personal disability as recognized by the statutory regime governing this suit.
This report made its way to Merchant on June 12. Its receipt prompted her to initiate the involvement of defendant’s designated Americans with Disabilities Act agent, Mark Ciarciello. While Merchant’s own immediate supervisor was Mike Kelleher, Ciarciello, who was in charge of the Branch’s efforts to comply with that statute, was at least in this subject area effectively superior to both of them. Merchant understood at that time that she was operating on two channels: one, in light of the issues that had arisen since April 19, to work directly with plaintiff in an attempt to discover a solution that plaintiff found satisfactory, and the other to remain in contact with Ciarciello, advising him of developments and following his direction as to what options might be available and what discretion she had regarding appropriate actions to take.
Evidently this report did not reach Bonchuk until June 12, either, although there was no explanation of the difference between the two June dates.
v). By June, plaintiff was complaining of problems in Room 201, specifically the demands of a fellow officer that the lights in the room be kept low so as to avoid causing that officer to suffer from headaches. More to the present point, plaintiff also was complaining that because three officers shared Room 201 the voice and telephone volumes were even more annoying than had been any disturbances experienced on the first floor.
Merchant responded by agreeing to move her to Room 204. Room 204 was appropriately-sized for two officers, and in early July had a single occupant. Management moved that person elsewhere in the building and, on July 23, installed plaintiff at one of the two desks therein. On July 24 plaintiff described herself as skeptical that the new quarters were adequate, but willing to give it a try. Initially, Merchant had planned to leave plaintiff as the sole occupant of that space. That changed about two weeks later when another officer was transferred in from the New London office. Ciarciello informed Merchant that because of the overall space limitations of the building a need existed to have room to house additional staff as they arrived. Also, he noted that no one else, including the supervisors on site, had private offices. Other officers also were seeking private offices in Danielson, unsuccessfully. Additionally, he indicated that there were operational arrangements that would accommodate plaintiff. In his opinion, she would have to share that office with the incoming officer. That officer was installed in that room in early August.
Ciarciello’s accommodations included, first, that plaintiff and the new officer would have staggered reporting days. A " reporting day" is one upon which a probationer would have to show up for a face-to-face meeting with her assigned officer. Each officer has two reporting days each week, and these are the only times when client visits would routinely be expected. Plaintiff was assigned Monday and Friday as reporting days, her colleague Tuesday and Thursday. On one of the other days, each officer was expected to be out " in the field, " making contact with clients’ family or employers or other community influences. Thus it was foreseeable that few if any simultaneous meetings with clients would occur, and even the officers’ joint presence in the office would be eliminated on two of the five days of the week. In addition, plaintiff was given permission not only to take her clients into one of the two interview rooms available to all probation officers (Rooms 104 and 205), but also, and uniquely, the privilege to take them into the conference room (108) unless the room was already scheduled for another purpose.
Merchant also participated in the identification and tailoring of these provisions.
Plaintiff’s dissatisfaction with Room 204 escalated immediately after the arrival of the new worker. She complained that the noise from the other employee and her clients was excessive, that she could not tell whose phone was ringing, that the interview rooms were often taken by other officers, and that the conference room was an illusory option because it was always scheduled for preemptive purposes. Room 204 happens to have a window that looks out over the main lobby, but that can be kept closed. During the two weeks that she had the room to herself, noise from outside that window was not reported to be a problem. After the roommate arrived, plaintiff complained about the noise that she heard through the window even when it was kept closed.
vi). Meanwhile, on June 29, while still assigned to Room 201, plaintiff had initiated her own direct contact with Ciarciello when she sent him a copy of Klein’s May 14 medical report. At his request, she followed up with Klein’s input on a " Medical Inquiry Form in Response to an Accommodation Request" which the doctor completed on July 11. That latest report stated that her condition, which he described in the exact same to ins as he used in his earlier diagnosis, limited plaintiff in " all interactions and verbal-hearing impaired communications w/others." The accommodation Dr. Klein identified as a solution to this limitation was " a quiet work environment to adequately hear conversations both in person and by phone in order to comprehend conversations effectively." On July 23, plaintiff informed Ciarciello of the move to Room 204 which Merchant had structured. On the following day she provided him with her personal written description of the problem she was experiencing and her own judgment as to a remedy. The accommodation she then requested was " to be put in a work area without background noise { workers, phones ringing, loud office equipment, " white noise" } and other conversations at the same time. To be in a work area where I can block out background noise, such as closing a door. Work where I am able to look at the person I am speaking to without interference." She did not specify a private office.
This was Dr. Klein’s last word on this subject until March 27, 2014, when he authored new " progress notes" in a format identical to those produced in May of 2012. The 2014 version makes no revision to the earlier diagnosis and advises that " patient would benefit from quieter work environment with option of blocking of background noise."
In very short order, Ciarciello effectively tabled her request until September, informing her that the room change Merchant had initiated would remain in place until then.
vii). On October 1, Ciarciello made a site visit to 190 Main St. to observe plaintiff’s setting. His purpose in making the site visit was to figure out whether Room 204 was adequate in combination with the ancillary accommodations of schedule and access to other rooms that had been put into effect in August. It soon became apparent that for plaintiff the focus had moved beyond that question because sometime in the preceding two months her quest for " a work area without background noise ... where I am able to look at the person I am speaking to without interference" had been transformed into an active search for her own private office. Throughout August and September she had begun voicing this demand to Bonchuk and Merchant.
On October 1, while Ciarciello was pursuing his inquiry, plaintiff was guided by a different agenda. She used the occasion to show him all the other rooms in the building she thought could and should be assigned to her. These included Room 110. Room 110 was in use as a supply storage area. For plaintiff, management deemed it to be a particularly unsuitable site, since it abutted the main entrance vestibule and waiting room and was not soundproof against the noise in that area, including the squawking of the metal detector. She asked to use the enclosed space in the basement, but that was ruled out due to lack of security and lack of an emergency exit. She suggested Room 107, but at that time the COLLECT computer was housed in that space, along with stored files. She said she would accept either of the two interview rooms. The function of the interview rooms was to permit an officer to have a private conference with a client, at a time when all of the staff members were sharing office space with at least one colleague. Twelve (at first) and later nineteen officers had to make do with two rooms. To assign one of them exclusively to plaintiff would sharply increase competition among all other officers for the one remaining room and was thus rejected. Plaintiff volunteered to move to the Putnam courthouse, recalling that at one time an officer had been located in that building. That may have been true in the past, but it was not true in 2012 and there was no space in that building available to house a probation officer. Finally, she sought a posting at the Danielson courthouse which did have a room assigned to probation. Danielson houses the criminal court functions of Windham Judicial District, and intake officers assigned to the limited space that building afforded process the daily flow of traffic into and out of the domain of probation, with occasional drop-in visits by other staff members as special needs arose. Additionally, management viewed that site as considerably noisier and busier than any part of the 190 Main St. facility. Finally, placing plaintiff there, even if feasible, would have separated her from her colleagues and supervisors. Transfer to the courthouse was deemed not suitable.
For the reasons cited, Ciarciello rejected all of these alternatives. On October 22 he informed plaintiff that Room 204 and the operational features designed for plaintiff were a reasonable accommodation of her need, as she and her doctor had articulated it, for a " quiet" working environment.
viii). Following the October 22 letter, the parties continued to discuss efforts to work towards an accommodation acceptable to plaintiff. In November of 2012 she purchased hearing aids at a cost of $4140. She sent the bill to Ciarciello with a request that the Branch reimburse her for the purchase. It declined to do so.
ix). In February of 2013, she requested a) soundproof partition walls in Room 204, and b) a telephone amplifier and/or captioned telephone.
Plaintiff proposed that floor-to-ceiling partitions could be installed in Room 204 so as to isolate her audibly from her co-worker, in effect giving her the quiet she said she needed. Ciarciello commissioned an office design and supply provider to measure the room and forward an offer responsive to her suggestion. The projected cost, in March of 2013, was over $4000. Ciarciello rejected that proposal, but not on account of cost. Rather, he determined in consultation with the provider that the configuration of the room was such that a sound-proof barrier was unrealizable as it would cut off air and heat circulation, and any halfway measure would be ineffective.
In April of 2013, the Branch provided plaintiff with a vendor-recommended CapTel model 840i phone. A CapTel phone employs a telecommunications relay service and every phone carrier is required by federal law to provide a tool of this nature for its customers. A telecommunications relay system permits a hearing-impaired person to engage in a phone conversation with others by use of a device including a small video screen which displays captions that transmit in writing the words being spoken orally by the other party to the conversation (or both, if used by a hearing-impaired person on each end of the connection). The device includes a captioned file storing voice mail messages left when a user is unavailable to answer a call. It is compatible with hearing aids. Like many technological devices, it comes with a lengthy manual explaining how to use it.
Over the next year or more in which she presumably was using this system, plaintiff on one occasion (involving several emails) reported that it was not working properly. She was advised how to make adjustments to refine her usage of it. Later, she again complained that it was not operating efficiently. After some troubleshooting on the part of the defendant’s media agent, the vendor sent a work crew to 190 Main St. The technicians determined that the phone had been plugged into the wrong jack. (When, and by whom, was, if determined, not disclosed). A simple correction sufficed to restore it to expected utility. Apart from those two incidents, plaintiff used the unit without apparent problem.
x). Between mid-2012 and the following year, plaintiff twice requested transfer to a probation office other than Danielson. She made her first such request to Merchant around October 1 of 2012, thus preceding Ciarciello’s October 22 missive. She raised with Merchant the prospect of a move to the Rockville probation offices in the Tolland District. She indicated expressly that she was unaware whether any openings existed at that location or what the office configuration there would be, but, in her words, " it couldn’t be any worse." Merchant responded by offering her a transfer to the Windham District’s Willimantic office, where she could occupy a private office. Plaintiff rejected this offer on the grounds that Willimantic was too far a commute. From her home, the incremental commute to Willimantic is about four miles further than Rockville. She was not selected for transfer to Rockville.
The same discussion recurred in the spring of 2013, with the same outcome.
xi). Not satisfied with Ciarciello’s determination, plaintiff filed a complaint with the Commission on Human Rights and Opportunities in January of 2013. In contrast with the remarkable detail in which the parties described events up to this point, they have been more restrained in disclosing what occurred at CHRO during the year they spent in its provinces. The record includes the plaintiff’s complaint and supporting affidavit and defendant’s answer, none of which shed new light upon the controversy. There is evidence that the Commission provided the parties with the services of a mediator who worked with them unsuccessfully over the course of that year. In April of 2014, the parties participated in a fact-finding conference before the Commission. Before briefs were filed or any facts were formally found, defendant agreed to furnish plaintiff with a private office, and the CHRO matter came to an end.
xii). The actual transfer of plaintiff to a private office occurred in October of 2014, when she was given Room 107 on the first floor. Since that occurred, she reports satisfaction with the new setting. In the intervening three years, there are no reported changes in the circumstances of her disability or the physical setting of her workplace. In January of 2015, the Commission issued a letter allowing plaintiff to bring this suit and she filed it here in February.
2. Discussion
a) What is a " reasonable" accommodation?
Plaintiff’s answer is uncomplicated: she is the person to decide; she identified a private office as the solution of choice; and defendant unreasonably thwarted her. In US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Court rejected a similarly minimalist premise. Barnett had a back injury and requested a transfer to a less physically demanding position within the company. He argued that his suggestion of such an alternative satisfied this prong of his prima facie case, and shifted to the employer the burden of disproving the reasonableness of his proposal. But the case involved complications, specifically collective bargaining agreements standing in the way of such an outcome. To balance the employee’s needs with that kind of constraint, the Court looked to the Act’s purpose, which it held was to allow eligible individuals the same workplace opportunities that those without disabilities enjoy. Given that purpose, the Court ruled, an employee seeking to establish this element of a prima facie case has to " show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases"; 535 U.S. 391, 401. Bare acceptability to the employee is insufficient.
Although plaintiff claims that defendant offered her no accommodation, she cannot dispute that the ultimate question before this court is instead whether the array of accommodations made by the Branch were reasonable even if not identical to the precise accommodation that she demanded. Answering this question requires evaluating the effectiveness and functionality of both the employee’s requests and the employer’s responses. The goal is to find a " reasonable, " not a perfect result. " As the Act has been interpreted, it requires the employer to make a reasonable accommodation of the plaintiff’s disability ... It does not require the perfect elimination of all disadvantage that may flow from the disability ... It does not require the employer to provide every accommodation the disabled employee may request, so long as the accommodation provided is reasonable"; Fink v. New York Department of Personnel, 53 F.3d at 565, 567 (2d Cir., 1995); see also, Ezikovich v. Commission on Human Rights and Opportunities, 57 Conn.App. 767 (2000).
29 C.F.R. § 1630.9 provides that
[t]he reasonable accommodation that is required by this part should provide the individual with a disability with an equal employment opportunity. Equal employment opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability. Thus, for example, an accommodation made to assist an employee with a disability in the performance of his or her job must be adequate to enable the individual to perform the essential functions of the relevant position. The accommodation, however, does not have to be the " best" accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated. Accordingly, an employer would not have to provide an employee disabled by a back impairment with a state-of-the art mechanical lifting device if it provided the employee with a less expensive or more readily available device that enabled the employee to perform the essential functions of the job.
In an early, seminal case involving a hearing-disabled plaintiff’s search for a reasonable accommodation to allow her to do her job (coincidentally, an early version of a CapTel phone), the court in Bryant v. Better Business Bureau of Greater Maryland, Inc., 923 F.Supp. 720, 736 (D.MD. 1996), framed the reasonable accommodation question as asking " whether the accommodation: (1) would be ‘effective, ’ i.e., would it address the job-related difficulties presented by the employee’s disability, 29 C.F.R. § 1630.2(o)(1)(i)-(ii); and (2) would [it] allow the employee to attain an ‘equal’ level of achievement, opportunity and participation, that a non-disabled individual in the same position would be able to achieve, id. § 1630.2(o)(1)(iii)."
What is " reasonable" in this exercise overlaps considerably with what is " necessary." " The Act requires preferences in the form of ‘reasonable accommodations’ that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy"; US Airways, Inc., supra, at 397. (Emphasis added.) " Discrimination is defined by the ADA as a failure to ‘make reasonable modifications in policies, practices, or procedures’ that are ‘necessary to afford ... privileges, advantages, or accommodations to individuals with disabilities’ or a failure to ‘take such steps as may be necessary to ensure that no individual with a disability is ... treated differently than other individuals because of the absence of auxiliary aids and services’ "; Argenyi v. Creighton University, 703 F.3d 441, 448 (5th Cir. 2013). (Citations omitted; emphasis added).
Also, " ‘[r]easonable’ is a relational term: it evaluates the desirability of a particular accommodation according to the consequences that the accommodation will produce"; Borkowski v. Valley Central School District, 63 F.3d 131, 137-38 (2d Cir. 1995). See also, Frumusa v. Zweigle ’s, Inc., 688 F.Supp.2d 176 (W.D.N.Y. 2010).
In poring over all the details that give rise to this case, two federal cases brought by hearing-impaired plaintiffs are particularly appropriate guides as to the standards that must be kept in mind. In both Noll v. International Business Machines, 787 F.3d 89 (2d Cir. 2015), and Obnamia v. Shinseki, 569 Fed.Appx. 443 (6th Cir. 2014), plaintiffs sued their employers alleging failure to accommodate their disability in violation of the ADA. Both cases pitted the employee’s insistence upon his or her preferred form of accommodation against the employer’s decision to meet his or her perceived needs by other means.
Noll was a longtime employee of IBM. The company had a vast intranet library of company-produced video and audio files used for management and training purposes. Noll’s primary demand was that the company produce transcripts of all audio files, and add closed captioning to the video files. The company responded by providing him with transcripts or closed-caption versions of a limited number of selected files, but as to the majority of its material provided him instead with an American Sign Language interpreter. Though Noll was familiar with ASL, he rejected this response on the ground that he found it confusing to shift focus back and forth between the screen and the interpreter, and that this process left him tired and annoyed. Because the ASL intermediary was nonetheless effective, the court held that the incidental disadvantage he endured did not render unreasonable the accommodation that the company offered. " The reasonable accommodation requirement does not require the perfect elimination of all disadvantage that may flow from the disability. We do not doubt that the need to split visual focus was a disadvantage that likely tired or annoyed Noll. We hold nevertheless that, in this case, the disadvantage did not render IBM’s accommodations ineffective"; Noll, supra, at 96. The decision concluded that IBM had reasonably accommodated Noll by providing American Sign Language interpreters capable of translating intranet files in spite of his preference being otherwise, and that the lower court had appropriately granted summary judgment upon determining that the company’s accommodations were reasonable as a matter of law.
Obnamia was a nurse. She had had multiple disagreements with her employer as to what accommodations were reasonable in light of her hearing difficulties. Giving rise to the suit before the court was her complaint regarding, inter alia, her demand that she be provided a private office. For a brief period of time, she had a private office, following a report that she had been assaulted by a coworker whose approach from behind she had been unable to detect. Eventually, after relocating its workplace, the employer positioned two colleagues in the same room with her. Like plaintiff in this case, Obnamia contended that background noises generated by her coworkers made it very difficult for her to hear anything, negatively impacting her ability to concentrate. Her employer established that she was nevertheless able to perform the essential functions of her job without a private office. All of the evaluations she received showed fully successful performance. The employer had allowed accommodations such as positioning her desk so as to allow face-to-face communication. Under these circumstances, the court affirmed the lower court’s grant of summary judgment, which had included the point that " where [the employee] is able to perform the job without accommodation, [that employee] cannot demonstrate the objective reasonableness of any desired accommodation"; Obnamia v. Shinseki, No. 2:12-cv-58, (D.S.D. Ohio, 2013).
b) Assessment
i). Medical Recommendations
Cases in this realm often include substantial input from medical providers who can assist the factfinder in gauging the sufficiency of measures taken to accommodate an individual’s specific needs. Such input has been deemed practically a categorical imperative; see, Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 579 (S.D.N.Y. 2008) (" An employee’s provision of medical information is an indispensable aspect of that interactive process and where an employee fails to provide documentation sufficient to allow an employer to assess the parameters of the employee’s disability, ‘ADA liability simply does not follow.’ " " Courts in the Second Circuit have consistently held that when a plaintiff fails to offer any medical evidence substantiating the specific limitations to which he claims he is subject due to his conditions, he cannot establish that he is disabled within the meaning of the ADA"; Buotote v. Illinois Tool Works, Inc., 815 F.Supp.2d 549, 557 (D.Conn. 2011).
The value of such evidence is well illustrated by the result in Argenyi, supra, a case brought by a deaf student admitted to the medical school at the defendant Creighton University. After discussion with the school regarding his need for accommodations to allow his studies, Argenyi sued on the basis that what was offered was not adequate to his needs. The district court entered summary judgment on his suit in defendant’s favor. The 5th Circuit reversed that order, holding that the substantial and clearly-delineated detail included in Argenyi’s doctor’s recommendations to defendant undermined the lower court’s conclusion that nothing could be done for him. " The record contains five letters from Argenyi’s doctors to Creighton confirming his need for additional auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi’s first month of medical school that ‘[i]t is imperative ’ that [Argenyi] have access to visual cues for everyday communication and education, ‘including but ... not limited to’ closed captioning, CART, and a cued speech interpreter. He urged Creighton to consider Argenyi’s specific requests ..."; Argenyi, supra, 703 F.3d 441, 447.
In the instant case, Dr. Klein submitted three recommendations on plaintiff’s behalf. They are essentially identical, suggesting a " quiet" workplace " free of background noise." At best they can be characterized as nondescript, since the two terms utilized- " quiet" and " free of background noise" - are indeterminate and specify no particular tactic sufficient to meet plaintiff’s needs. He never indicated that a private office was required. Ciarciello indicated that plaintiff’s demand for a private office would have had a higher priority if he had done so. The vagueness of his reports leaves plaintiff free to insist as she has- and as only she has- that nothing but a private office would be " quiet, " and defendant forced to guess at what degree of " quiet" is adequate to the need. A carrel at the New York Public Library may be quiet, while several of the potential private offices plaintiff sought at 190 Main St. come nowhere close to deserving that description. Klein’s prescription is of little assistance in facilitating an informed choice.
ii). Plaintiff’s Account of her Hearing Difficulties
It is also well settled that resolving claims in this realm benefits greatly from the employer’s giving due heed to the disabled person’s account of the difficulties placed upon her by her affliction. " [T]he employer [must] consider the preference of the individual to be accommodated and then select the accommodation most appropriate for both the employee and the employer"; Lenker v. Methodist Hosp., 210 F.3d 792, 798 (7th Cir. 2000). The Americans with Disabilities Act Title II Technical Assistance Manual, at 11-7.1100 (1993), advises that " [i]n a case such as this it is especially important to consider the complainant’s testimony carefully because ‘the individual with a disability is most familiar with his or her disability and is in the ‘best position to determine what type of aid or service will be effective.’ "
The deference due to an employee’s account depends, of course, on her credibility as a witness. In several cases, most notably Jacobs v. General Electric Co., 275 Conn. 395 (2005), our Supreme Court has noted how in a discrimination case a narrative unworthy of credence may permit the factfinder to conclude that the party’s entire presentation is wanting. While the mendacious party in that ease was the employer, the duty of providing a credible account at trial attaches to both parties. Citing the United States Supreme Court’s holding in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), our Supreme Court in Feliciano v. AutoZone, Inc., 316 Conn. 65, 79 (2015) noted that to establish plaintiff’s prima facie case " disbelief of the employer’s evidence is not sufficient ... the factfinder must believe the plaintiff’s explanation of intentional discrimination." And in Eagen v. Commission on Human Rights and Opportunities, 135 Conn.App. 563, 587-8 (2012), our appellate court upheld the decision of an administrative referee on retaliation following an employee’s protected behavior, noting that the " decision on the ultimate issue ... was based squarely on the credibility of the witnesses [and] [t]he law is well established that the credibility of witnesses is within the exclusive province of the trier." Much of the plaintiff’s narrative is puzzling, implausible, or downright incredible.
a). The Unique Unsuitability of 190 Main St.
Once the defendant relocated to this new site, plaintiff began complaining that the echo in the building made it difficult for her to hear her clients no matter where she was placed in the building. For at least five years prior to this move, plaintiff’s hearing impairment was essentially unchanged. At 183 Main St. and at 134-6 Main St. she was placed for the most part in quarters shared with others. She coped by discreetly adjusting her desk and chair so as to face her clients, by arranging bookcases and other furniture to provide barriers, and by closing the door when needed. Throughout these many years, the adjustments she implemented sufficed.
While in the first floor cubicle in the new facility, she testified that these adjustments were ineffective. She reached the same conclusion as to Room 201, and then as to 204. After defendant became aware of her disability and offered her a staggered reporting schedule, a CAPTEL phone, the use of private interview rooms and the preemptive use of the conference room to augment the techniques that had been erstwhile successful, she continued to insist that nothing the Branch had done provided a solution to her hearing problems.
Neither 183 nor 134-6 Main St. was devoid of background noise, and yet plaintiff performed adequately and without protest in both settings. What is puzzling about this aspect of her narrative is how the new building could be so radically different not only from the previous probation office sites, but apparently from the world at large. She claimed that she would often make field visits to clients at their places of employment, including McDonald’s and other restaurants. In the years discussed in her testimony, including the 2012-2014 time period under scrutiny here, she indicated that she could hear in those environments without problem. How 190 Main St. produced more background noise than a typical McDonald’s restaurant is something she did not explain.
More puzzling is that the adequacy of the options available to her in the new building varied directly with whether or not it was a space specifically assigned to plaintiff. Room 204 was satisfactory for the short spell that plaintiff had it to herself, but became intolerable to her once her colleague arrived. In October of 2012, she told Ciarciello that she would benefit from being assigned one of the interview rooms. Once told that she would have only a slice of solitary time therein, and that others would be able to use them when she was not doing so, she spurned the use of those rooms altogether. She chose instead to conduct her interviews in 204 despite her colleague’s presence, claiming that the two interview rooms were always occupied by others. She provided no specific data to support that claim, and her account is directly refuted by her supervisor’s reliable testimony. She alone among the officers on staff was offered use of the conference room. Her reporting days were Monday and Friday. The conference room was generally unavailable on Thursdays, but usually empty on the other four days including her two days with clients. She claimed, again in the face of credible contrary evidence from her supervisor, that the conference room was also usually busy and hence stayed away from its use. The apparent touchstone of an office’s suitability in meeting her hearing needs is not whether she and a client can occupy it in solitude, with the door closed, but whether that door has her name written above it or not.
In the fall of 2013, plaintiff fell and injured her leg. She was unable to ascend the stairs to the second floor. For the duration of her recuperation the conference room became her de facto office. Aside from that period of about one month, she avoided its use.
b). Hearing Aids
One disputed issue here is whether defendant ought to have provided plaintiff with the hearing aids she ultimately purchased for her use. For its part on this issue, defendant cites the EEOC Compliance Manual, which indicates that " an employer is not required to provide an employee with a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are also needed off the job." Plaintiff claims that the exception relative to workplace-only need applies to her, insisting that she only wears the hearing aids on the job, where they are definitely needed, but takes them off as soon as she gets home and never wears them on her own time.
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual, § 92, No. 915.002, available at http://www.eeoc.gov/policy/does/accommodation.html#N_105_ (Oct. 17, 2002).
Plaintiff’s assertion that these tools worked to render audible what had to be heard at work, but that she would otherwise eschew their use in other settings, is an implausible proposition. Her medical notes indicate that on each of several semi-annual visits to her doctor the presence of the hearing aids was observed, with on one occasion a comment noting how she hid their visibility by the way she adjusted her hair. In her husband’s moment on the witness stand, he testified under cross examination that plaintiff wore the hearing aids regularly on family outings back as far as 2008. Redirected, he maintained he was not certain about the dates. This may be true, but he did not retract his words about the family outings. In short, nothing backed up her claim that she used the aids exclusively at work, and the claim itself makes no sense.
c). Damages
Plaintiff spent considerable time attempting to substantiate her claim that she suffered physical injury as a result of defendant’s alleged intransigence. Following the events of April through October of 2012, she maintains, she suffered from high blood pressure to a degree she had never before experienced, and, for the first time in her life, depression.
As to the hypertension, she reports that Dr. Naravane diagnosed it in December of 2011. Dr. Naravane described hypertension as " elevated blood pressure [over] 140 over 90 for adults ... [on] three separate occasions." A note in her medical records indicates that on December 16, 2011, her blood pressure reading was 150/90. A reading six days earlier had been 150/95, and another four days earlier was 158/100. The note further indicates a history of hypertension on the part of both parents and a twin sister. On December 16, 2011, her physician saw fit to counsel her about " the risks associated with persistently elevated blood pressure." (Emphasis added.) Even as early as July 30, 2010, a note in the doctor’s file indicated that she was tearful, having a lot of stress in her life, and blood pressure readings of 142/102 (left arm), 148/102 (right arm). The doctor noted a discussion of the risks of hypertension and strongly advised she follow up for both anxiety and blood pressure.
Thus her hypertension existed as early as 2010 and there is a strong indication she has a genetic predisposition to it. Beyond her own conclusions, she provided no medical evidence that defendant’s behavior materially aggravated this condition. As 2011 turned into 2012 and that into 2013 and 2014, the medical notes indicate that her doctor was experimenting with various medications and dosages, but without a word on the doctor’s part linking the malady or its purported aggravation to her employment. There is no doubt that she suffers from hypertension. There is considerable reason to doubt that the defendant’s behavior produced that condition, notwithstanding plaintiff’s extended insistence upon the linkage.
She testified repeatedly as to anxiety and stress, conflating them into practically interchangeable symptoms. She relates both to her diagnosed depression. Her premise is that all of what might be loosely referred to as emotional consequences is a consequence of the defendant’s acts or omissions. This premise is belied by the fact that she was formally diagnosed with major depression no later than May of 2012. In May of 2012, the move to 190 Main St. had barely occurred, and plaintiff had not yet given any comprehensive indication to defendant that she had an identified auditory impairment. Hardly any of the multiple events described in section II-C-1-b, above, had yet occurred. She failed to provide any logical explanation how depression caused by the events of the summer and fall of 2012 and thereafter could have precipitated depression in May of that year. Neither did she provide any opinion other than her own linking her mental state at any time to the circumstances of her employment.
Moreover, her medical records of July 30, 2010 indicate that she was sufficiently " stressed out" on that occasion to bring it to her doctor’s attention. It was during cross-examination that she disclosed this preexisting manifestation of stress. On redirect, she attempted to lay the blame for it on defendant’s doorstep. She testified that her stress at that time was work-induced and attributed her visit to her doctor on that day in 2010 to an incident at work. In her words, she had reserved a car with which to transport a client to a program meeting; upon arrival she found the car missing and learned that it had been taken by a co-worker; and, when she complained to her supervisor, according to her sworn testimony, the supervisor " was screaming at me the entire office could hear, including the security’ officer at the front of the building, a waiting room full of clients, the three other probations officers that were there, one other probation had a client in front of him. I- I couldn’t believe that this was happening. I was shaking. My supervisor was yelling at me so loud. I had never been spoken to like that in my entire life. That ended, and I told my supervisor that I needed to leave, and that’s when I went and saw the doctor that day for a blood pressure check."
Though this account is both uncorroborated and hyperbolic throughout, it is consequential in a manner plaintiff did not intend. Just after relating it, plaintiff added that she must have told her supervisor of her hearing impairment prior to that date in July of 2010, because she thereafter lost trust in her supervisor and would therefore never later have disclosed this impairment. This assertion made close to the end of her extensive trial testimony is at odds with all of her own (and collateral) evidence up to that point indicating that disclosure of the hearing impairment occurred between April and June of 2012.
What impresses me from the numerous incongruities in plaintiff’s narrative is not that she is calculatedly mendacious, but how much she sees her work life as the source of unrelenting dysphoria well before 2012. The circumstances surrounding her disability and her perception that defendant is indifferent to her needs is but part of that. Throughout her testimony she tended to describe virtually all that happens at work in negative terms, and she tended to attribute many of life’s vicissitudes that she endures anywhere else as a result of what’s going on at work. Her perception may be heartfelt and earnest, but sheds more heat than light upon those details of her case which are essential and as to which she is the sole witness.
iii). Concerns Raised by Defendant’s Actions
Among plaintiff’s several complaints regarding the behavior of defendant’s agents, two require discussion.
First, she charges Ciarciello with rudeness and a brusque communicative manner that she interprets as proof of bad faith on his part in pursuing the required interactive process to find an accommodation. This court had a brief opportunity to observe him as a witness, and he was suitably formal and restrained in that appearance. He is a retired police officer, and it is not hard to imagine that in that former career he adopted the Sergeant Friday " just the facts, Ma’am" style of interacting with the public. His taciturn exchanges with plaintiff left her upset and angry. The anti-discrimination statutes were not written to protect employed persons from a superior’s rudeness. While dealing with an evaluation in a different context, the Supreme Court in Perodeau v. Hartford, 259 Conn. 729, 757, (2002) recognized that " individuals [in the workplace] reasonably should expect to be subject to ... performance evaluations, both formal and informal; [and] decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation" and " reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result." Whether he was rude in his dealings with plaintiff is a concern that cannot be allowed to distract this court from the requisite focus upon the legal merits of the decisions he thus communicated.
That being said, one might speculate that a better bedside manner might here have led to a different outcome than this lawsuit.
Second, the decision by defendant to grant plaintiff her own office in October of 2014 is intriguing. This court heard abundant evidence as to the timing of this move and how it occurred, but practically nothing as to why it occurred. Emails between counsel suggest that plans to move her cropped up about a week after a session with the CHRO factfinder. The evidence discloses no basis for finding that the defendant’s shift in position resulted from any agreement between the parties; while one attorney described it as a " resolution, " the term seems only moderately accurate as the move did not avert this lawsuit.
The move required taking the COLLECT system out of Room 107 and relocating it to 110. According to Merchant, the state police were conducting a random system-wide audit of the COLLECT system around that time and approved the move. Whether the state police even knew of plaintiff’s demands was not discussed. As a result of moving COLLECT, however, Room 107 thus became an empty space on the first floor which defendant then assigned to plaintiff for use as her own office.
In her post-trial memorandum, plaintiff argues that the move proves that she was right all along in her articulation of her needs. She basically reasons res ipsa loquitur: " the thing speaks for itself." While the phrase usually appears in the tort arena, its logic is applicable here as well- but not compelling. A party often chooses to settle a contested case even though unconvinced that justice or morality is thus well served. Settlement is often a business decision reached upon concluding that the benefit of ultimately prevailing in a protracted dispute is eclipsed by the tangible and intangible costs of continuing the dispute until a third party adjudicates its merits. Here, where a two-year battle had raged over plaintiff’s demands, defendant may simply have decided that continuing the fight was not worthwhile. Plaintiff’s victory, then, reflects the strength of her demands and her will to see them met, but need and demand are distinct.
iv). Interactive Process
Along with her attack upon the substantive decisions defendant made, plaintiff claims that it defaulted in its duty to participate in the good faith interactive process required by law once an employee has identified the need for an accommodation.
29 C.F.R. § 1630.9(a) outlines the protocol for the process. When an individual with a disability has requested a reasonable accommodation to assist in the performance of a job, the employer, using a problem solving approach, should:
(1) Analyze the particular job involved and determine its purpose and essential functions;
(2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;
(3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
(4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
Note that at the first step, the regulations assign to the employer the duty of determining the essential functions of the job in question. " Employers formulate jobs to fit the needs of their enterprises, and cannot fill jobs without deciding what attributes are essential to those needs. The essential character of a particular job qualification is therefore a matter of judgment and opinion"; Shannon v. New York City Transit Authority, 332 F.3d 95, 102-3 (2d Cir. 2003). " [A] court must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position"; Rodal, supra, 369 F.3d 113, at 120. As the Rodal court noted, the question whether a task constitutes an essential function ultimately depends on the totality of the circumstances.
Some of the cases illustrating this deference involve harsh facts. For instance, in the recent case of Credeur v. State of Louisiana, 860 F.3d 785 (5th Cir. 2017), the plaintiff, who worked as a staff attorney in the state’s department of justice, was afflicted with cancer. Although she argued to be allowed to work at home as a reasonable accommodation of this affliction, the employer deemed it to be essential that she come to the office. Reluctantly, she did so, and in spite of her condition, still managed to do her job. Her lawsuit advanced the proposition that her judgment as to her needs and as to the functions of her job trumped that of the employer. The circuit court affirmed a trial court order granting summary judgment to the employer, holding that its determination as to what job functions were essential was dispositive. The court gave short shrift to the employee’s judgment. Rauen v. U.S. Tobacco Mfg. Ltd. Partnership, 319 F.3d 891, (7th. Cir. 2003), involved another cancer sufferer who pressed her employer for permission to work at home. The seventh circuit sided with the employer’s decision that the job required " the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation"; at 896-7.
Crucial to that outcome in each case was the fact that with accommodations for medical appointments and the like, both Ms. Credeur and Ms. Rauen were able to perform their job at the workplace despite the discomfort their illness caused. This focus upon the ability to do the job is the thrust of the third step in the process, and informs the decisions to be made at step four. Even when there is clear need for an accommodation, the regulation also assigns to the employer the discretion to select the specific accommodation most appropriate for both parties, taking into account the employee’s preference. In the case at bar the defendant’s decisions have produced no identified deficit in plaintiff’s ability to do her work as a probation officer at the highest measure afforded, no matter how much she takes issue with those decisions.
Embodied in step two and again in three is the duty of consultation between the parties relative to the employee’s limitations and the potential accommodations needed. In the six months between April and October of 2012, plaintiff’s supervisor and the Branch’s ADA officer kept open a line of communication with plaintiff through which she was able to voice her concerns and her preferences. Responses included changing her work station twice, arranging her work schedule to avoid conflict with her office mate, providing her with earphones for the Dragon problem, and allowing her use of a space that was off limits to all other probation officers. A little later, but without delay after its value was brought to management’s attention, she also received a CapTel phone to assist with her hearing impairment.
In Festa v. Bd . of Educ. of Town of East Haven, 145 Conn.App. 103, 115-17 (2013), the appellate court said of the interactive process that its purpose is " [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations ... The need for bilateral discussion arises because each party holds information the other does not have or cannot easily obtain ... if the plaintiff needs a specific accommodation, then she needs to provide the board with enough information for the board to understand why only that accommodation is sufficient." Here, there were two competing versions of what was needed to provide plaintiff with a " quiet" environment " free of background noise." She defended her version mainly by finding fault with defendant’s, but without educating anyone as to what was inadequate in defendant’s version.
An employer’s duty to participate in the process is not interminable. Even before it is begun, " failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that accommodation was possible"; McBride, supra, 583 F.3d 92, at 100-01. This case is in a different posture from McBride, where no accommodation was possible. Rather, it is one in which the parties reached an impasse instead of a happy resolution. Plaintiff was unmovable in her rejection of defendant’s accommodations. But " the ADA imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were plainly reasonable ... the interactive process is not required when the end it is designed to serve- reasonable accommodation- has already been achieved"; Noll, supra, 787 F.3d 89, at 97.
Contrary to the plaintiff’s assertions, it is inaccurate to say that defendant was less participatory in the interactive process than applicable law required it to be. Once the department’s agents determined that the essential function of plaintiff’s job was to interact meaningfully with her clients, their decision not to grant her a private office in which to do so is not actionable as long as there is an otherwise effective accommodation permitting her to carry out that function. At 190 Main St., the fact that not one of the staff personnel had a private office, and that space was obviously a scarce commodity, are appropriate factors in defendant’s exercise of its discretion in this regard. The interactive process requirement has not been construed so as to grant an employee veto power.
v.) Conclusion as to Reasonable Accommodation
As noted above, examples of reasonable accommodations include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and other similar accommodations for individuals with disabilities. This menu envisions flexibility and creativity in responding to a particular employee’s needs.
To satisfy the third prong of the test set forth in Curry, supra, plaintiff is required to show that the defendant did not provide her with a reasonable accommodation of her identified needs. As the Bryant decision described it, an accommodation meets legal muster if it efficiently meets plaintiff’s needs and also provides her with opportunities equal to those of her fellows.
How other courts have treated demands for a private office is information that could be useful in deciding how to apply the US Airways direction to favor accommodations that occur " ordinarily or in the run of cases." Keeping in mind that litigation over the reasonable accommodation requirement probably only arises when an employee is unsatisfied with the employer’s decisions, it is nevertheless notable that those employees who have reached a court contending that a private office is the required accommodation for their disability do not seem to have fared well. A global search of the literature reveals, in addition to Obnamia, only a handful of similar cases. Cases invoking the ADA include Henderson v. New York Life, Inc., 991 F.Supp. 527 (D.N.D.Tex. 1997), in which the court entered summary judgment against a plaintiff demanding a private office to address her problems with asthma, and even though she had her doctor’s recommendation for one; along with skepticism as to the efficacy of that as a remedy, the court noted that " NYL did not have any enclosed offices that were vacant, and that the offices which NYL had either were occupied by management or were shared by at least two life insurance claims examiners each whose unique claims processing duties required them to be in that location together"; at 541. In St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d 999 (D.MN. 2003) the court ruled against a man suffering from Tourette’s Syndrome whose employer denied his request for " isolat[ion] ... from other employees"; the court held that " [a]n employer is not required by the ADA to create a wholly isolated work space for an employee that is free from " other coworkers, " at 1006. And in Danielson v. AT & T Corporation, C4-02-1046 (unpublished opinion, 7th Cir., 2003), that court affirmed a summary judgment entered against a woman diagnosed with photophobia who demanded a private office, holding that granting her that accommodation would violate terms of a collective bargaining agreement and that the employer had offered reasonable alternatives that she had rejected.
Plaintiffs invoking state laws similar to CFEPA have fared no better. In Ogilbee v. Board of Education of Dayton Public Schools, 2010-Ohio-1913, the Ohio Court of Appeals, Second District, affirmed a summary judgment against a plaintiff suffering from a condition called " multiple chemical sensitivity, " an allergy to certain fragrances commonly found in perfume, cologne, and scented lotion. The employer tried to accommodate her allergy by giving her an air purifier and a fan, but rejected moving her to her own office as doing so would put her too far away from the administrators to whom she provided clerical support; she rejected that offer, but was unable to convince the court that the question should even go to trial. In Hervey v. Missouri Dept. of Corrections, 379 S.W.3d 156 (Mo. 2012), the state’s highest court vacated a seven-figure jury verdict for a probation officer who had demanded a private office among other accommodations for an otherwise unexplained " mental disorder diagnosis"; the decision, however, turned upon issues other than that particular demand.
In two New Jersey cases, the Appellate Division of the Superior Court came to different conclusions as to the sufficiency of demands for a private office. In Simisak v. County of Mercer, A-3184-09T3 (2011), the court affirmed a summary judgment entered against a plaintiff demanding a private office because, he claimed, " his job required him to conduct confidential interviews ... [but] ... he had to interview in an upstairs conference room when it was available or a smaller, closet-like room, when it was not." In the other New Jersey case, Ross v. New Jersey Department of Human Services, A-0146-14T4 (2016), plaintiff did survive summary judgment. Born with a condition that permanently impaired her from using her right hand and arm, she thus had great difficulty typing. Her job required extensive data entry, and her employer left her in a cubicle shared with fellow employees but provided her with a voice-activated computer. In that setting, she found it impossible to protect the confidentiality of the data she was required to enter and for that reason demanded a private office. The reviewing court decided that her case presented a sufficient issue of material fact to preclude summary judgment on the employer’s claim that that accommodation was unnecessary. What has later transpired in that case is unknown.
Finally, I note the pendency in the Hartford venue of this court of a case claiming among other things that denial of a private office violates plaintiff’s rights under CFEPA: Harmon et al. v. University of Connecticut, Docket No. CV15 6056506S. At this moment, a motion for summary judgment has been filed and briefed, but the disposition of that issue remains a matter for the future.
Here, neither plaintiff’s voluminous exhibits nor her extensive testimony reveals any objectively verifiable distinction between the auditory properties of the parties’ two competing alternatives. The interview rooms- the same rooms which were included as an option in her private office proposal- were acceptable as part of her demand that they be turned into her private office, but unacceptable in defendant’s version offering her their non-exclusive use (with, additionally, a priority to use the otherwise unobjectionable conference room). Interview Room 205 sits just a few feet from plaintiff’s desk in 204. Granted, this part of the package of accommodations tendered by defendant requires that she occasionally step those few feet out of her assigned space to an otherwise unoccupied space. If this was a nuisance to her, it was equally a nuisance to all of her fellows any time they sought privacy with their clients, as all had to make that same short walk.
Additionally, she functioned in spite of what she calls the denial of necessary accommodations for over two years without appreciable impact upon her work quality. In that time period, she received no adverse oral or written criticism of her performance, and neither she nor the employer documented a single instance in which she reported an insurmountable inability to comprehend or communicate with a client. Whether or not she was discomfited by the setting only she can tell, but if she was, that fact alone is insufficient to carry the day for her.
I find that her resistance to defendant’s package of accommodations was not due to their ineffectiveness, and that management’s proposals did not render her in any way inferior to her colleagues. That package provided her with a functional set of adjustments which in the aggregate fulfill defendant’s statutory duty in both respects. She wanted, and ultimately got, an amenity that no one else working at 190 Main St. achieved, but that does not prove that her protected status made that amenity a matter of right. She has not established the third required element of a prima facie case of failure to accommodate under Curry, supra, and thus her claim that she suffered discrimination due to failure to accommodate her limitations must fail.
III. Retaliation
When an employee pleads that her disability has led to disparate treatment, such as retaliation, she adds a distinct new element to the case. In addition to its prohibition against discrimination, CFEPA at § 46a-60(4)(d) further makes it illegal If 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 [before the CHRO]."
" [R]etaliation is a distinct and independent act of discrimination, motivated by a discrete intention to punish a person who has rocked the boat by complaining about an unlawful employment practice"; Jackson v. Water Pollution Control Authority of City of Bridgeport, 278 Conn. 692, 708 (2006). The United States Supreme Court has observed that:
[t]he anti-discrimination provision [of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ] seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status ... The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 63 (2006) (Citation omitted).
" Courts approach [claims of retaliation in violation of the CFEPA] in generally the same manner as they do retaliation claims brought under federal antidiscrimination laws." Mendillo v. Prudential Ins. Co. of America, 156 F.Supp.3d 317, 345 (D.Conn. 2016). " To establish a prima facie case of retaliation, an employee must show " (1) that she participated in a protected activity; (2) that the defendant knew of the protected activity; (3) that the defendant caused an adverse employment action to be taken against the employee; and (4) that there is a causal connection between the protected activity and the adverse employment action"; Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536 (2009).
A. Protected Class
Here, obviously, there is no claim that the defendant did not know of the plaintiff’s actions which she claims put her into a protected class. The parties disagree, however, whether plaintiff belongs to such a protected class and thus meets the first prong of this test. Both define the class as consisting of persons who have made requests to their employers for reasonable accommodations. In other words, not the disability- which here cannot be denied- but the plaintiff’s efforts to do something about it, is the focus of this first step in the analytical process.
In defendant’s eyes, the qualifying event was plaintiff’s filing her CHRO complaint in January of 2013. By that time, the incidents of retaliation she alleges had already occurred. In contrast, plaintiff argues that her voicing of a need for a quiet place was sufficient; that she had done that as early as April of 2012; and that because the events she is unhappy about occurred later in that year, she belongs to the indicated class. Defendant points out that plaintiff’s case is pled under CFEPA, not the ADAAA, and that the language the legislature employed in § 46a-60(4) makes it illegal to discriminate against an employee because such person has (1) opposed any discriminatory employment practice, or (2) because such person has filed a complaint with the CHRO. Since the alleged retaliation preceded the CHRO filing, only the first of these conditions could conceivably authorize plaintiff’s case. Defendant cites a series of superior court cases including Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Docket No. X06 CV12 6014260S (October 31, 2012; Agati, J.) , which in granting a motion for summary judgment against a plaintiff fired after four months of asserting a need of accommodation unambiguously holds that " requesting reasonable accommodation for one’s own disabilities [does not] qualif[y] as ‘oppos[ing] [a] discriminatory employment practice’ for purposes of alleging retaliation under § 46a-60(a)(4)." " Opposition" is the key concept in this ruling.
Other cases cited reaching the same result are Setkoski v. Uconn Health Center, Superior Court, judicial district of Hartford, Docket No. CV-10-6012794-S (May 10, 2012, Domnarski, J.) (54 Conn.L.Rptr. 67; Dwyer v. Waterfront Enterprises, supra; and Dzubaty v. Milford Bd. of Educ., Superior Court, judicial district of Ansonia Milford, Docket No. CV06 5000824S (August 20, 2007; R. Robinson, J.) . This list is not intended to be exhaustive.
Plaintiff rests her argument upon a series of federal court decisions interpreting the ADA or ADAAA, including Ragusa v. Malverne Union Free School District, 381 Fed.Appx. 85 (2d Cir. 2010), which summarized precedent under that statute as concluding that nothing more than a verbal request for an accommodation is required to situate its maker within the class protected against retaliation. She additionally cites Judge Calmar’s memorandum denying summary judgment in this case, in which he found the reasoning of Sheehy, et al., to be flawed. He decided that for this state’s law to be consistent with similar federal law in this domain was sensible, and he cited Reddick v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-11-6021301-S, (December 3, 2015; Wilson, J.), which discusses this issue at considerable length. As that court reasoned, " [a]n interpretation of CFEPA that does not consider a request for a reasonable accommodation to be a protected activity would be inconsistent with the broad interpretation that our courts have afforded the CFEPA in other contexts, " e.g., Curry, supra . See also, the trial court memorandum annexed to Phadnis v. Great Expression Dental Centers, 170 Conn.App. 79 (2017).
The district courts in this state have likewise consistently held that CFEPA’s anti-retaliation provisions are available once an employee makes a request for a reasonable accommodation: " courts construe discrimination and retaliation claims brought under CFEPA similarly to such claims brought under the ADA"; Went v. New London Board of Education, No. 3:14-cv-0840 (D.CT. 2016), and cases cited therein.
If " opposition" remains a requisite, it may be found in the form of behavior less demonstrative than filing a formal complaint or indulging in an embarrassing emotional display. In a case involving alleged retaliation against an employee who had registered a complaint of sexual harassment on the job, Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 555 U.S. 271, 278 (2009), the Court directs that the concept be interpreted broadly:
" Oppose" goes beyond " active, consistent" behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to " oppose" slavery before Emancipation, or are said to " oppose" capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it " opposition" if an employee took a stand against an employer’s discriminatory practices not by " instigating" action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. Cf. McDonnell [v. Cisneros, 84 F.3d 256 (1996) ] (finding employee covered by Title VII of the Civil Rights Act of 1964 where his employer retaliated against him for failing to prevent his subordinate from filing an EEOC charge). There is, then, no reason to doubt that a person can " oppose" by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.
It would verge on freakish to hold in this case that plaintiff’s lengthy pursuit of what she felt to be a reasonable accommodation did not bring her within the law’s protection against retaliation because she was required to additionally, for instance, send a protest letter to the chief justice. The phrase " opposing a discriminatory employment practice" applies to a case in which the dialogue plaintiff initiated went on for many months and through many phases, and plaintiff has sufficient membership in a protected class to warrant a finding that she has satisfied the first prong of the retaliation test.
B) Adverse Employment Action
Traditionally, " [p]rototypical examples of adverse employment actions include[d] termination, demotion via a reduced wage, salary, or job title, a material loss of benefits, or significantly reduced responsibilities"; Maglietti v. Nicholson, 517 F.Supp.2d 624, 628 (2007). With Burlington Northern, supra, the Supreme Court handed down what is now the principle authority as to the anti-retaliation provisions of our civil rights legislation. The question confronting the Court was what kind of employer decision can be called an action sufficiently adverse to permit an employee to invoke legal protection. Going well beyond the traditional prototypes, the decision holds that a plaintiff alleging retaliation may prevail by showing " that a reasonable employee would have found the challenged action materially adverse, which ... means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination"; 548 U.S. 53, 68. (Internal quotations omitted.)
The opinion stresses that " [c]ontext matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, arid relationships which are not fully captured by a simple recitation of the words used or the physical acts performed"; 548 U.S. 53, 69; and, at page 71, that applying its test to the facts of any given case requires " considering ‘all the circumstances.’ " In this circuit, " [W]hether an undesirable employment action qualifies as being ‘adverse’ is a heavily fact-specific, contextual determination." Hoyt v. Andreucci, 433 F.3d 320, 328 (2d Cir. 2006); and that is a reality acknowledged by state court decisions as well; see, Taylor v. State of Connecticut Dept. of Correction, Superior Court, judicial district of New Haven, Docket No. NNH CV09 0301065 (July 12, 2010; Wilson, J.).
Plaintiff has alleged that she suffered retaliation by being reassigned from a position she had held for three years monitoring the Technical Violations Unit, to handling the Mental Health caseload. Additionally, she alleges that her supervisor has shunned her ever since she made her disability known.
These distinct claims of retaliation must be considered separately.
1). The Assignment to the Mental Health Caseload
As of 2012, plaintiff had approximately twenty years of probation experience, including, as to all times pertinent to this suit, status as an Adult Probation Officer II. She had ascended to this status before any of the events involved in this case, and her status has not been altered by the events of this case. At all times, the job description for this position indicates that one occupying it " is accountable for independently performing a full range of tasks involved [in] overseeing individuals referred." She works under the direct supervision of a Chief Probation Officer, or other employee of higher grade. She may lead or supervise lower level employees. Listed as examples of the duties expected of any APO II are to conduct a " full range" of investigations of " all" cases referred, to assess ... " offenders" without limitation, to " appropriately refer ... probationers to treatment facilities, " to " oversee specific caseloads, " and to " exercise ... independent judgment of violation ... matters." It is a fair summary of this job description to say that it requires a high level of talent, responsibility, and autonomous decision-making, and defendant repeatedly determined that plaintiff possessed those qualities. The job description in no way connotes that an incumbent will be limited to any narrow or confining set of duties.
It is common knowledge that probation oversight today extends to people with a broad spectrum of needs. The office administers programs for persons classified as sex offenders, as drug and/or alcohol dependent, as domestic violators, as mentally ill, and, where perhaps none of those labels apply, then simply as murderers, thieves, and so on. Probation maintains an inventory of community resources to which its clients may be directed as part of the probation obligation. The office also has assignments which cut across the several categories, such as the Technical Violations Unit. That name may be thought to connote that the Unit deals with problems on the scale of jaywalkers or parking ticket scofflaws, but such an assumption would be a misperception. In a 2011 evaluation of plaintiff, her supervisor opined that people in the TVU were " often noncompliant and the most resistant of clients."
In connection with the staff consolidation at 190 Main St., and the addition to Windham Judicial District of several new staff members, management almost immediately initiated a district-wide staff reassignment in order to maximize efficiency in the delivery of its services. One change imposed upon the district was to create a discrete mental health caseload, expanding statewide an experiment that had been conducted in other judicial districts on a pilot basis. The purpose of this caseload was to gather together people that needed further assessment to get stabilized with their mental health issues. By design, the program was more focused on the mental health needs and assessments of its population than on narrow compliance with court orders. The caseload would not exceed twenty-five persons, a substantially lower number than found in other categories. The overall restructuring process existed embryonically on April 19 when plaintiff first complained of a hearing problem, and was fully implemented by early September. This was prior to her conclusion that she was not going to be given the accommodation she demanded.
Early in the process, management identified plaintiff as an appropriate candidate to take charge of the mental health unit. That occurred because, in Merchant’s words, plaintiff was " very laid back, has a very calm demeanor, very slow paced. She allows people a lot of chances. She’s very knowledgeable about referrals and mental health conditions ... [I needed] to pick officers that have a lot of experience. So that’s why we picked Melanie. And that’s why we picked the other officer in Willimantic because they were both more senior officers with that kind of style." Prior to this reorganization, of course, people with mental health issues were already among those served by probation. A senior caseworker such as plaintiff would have amassed considerable experience in working with them as a component of her prior assignments. Merchant’s assessment was shared by the other three staff supervisors who participated in the overall staff reassignment process. They nominated plaintiff for the new slot before she had formally raised the issue of her disability, and finalized that selection before her quest for a private office emerged as her primary objective.
From the first moment that she sensed that the new assignment was in the works, plaintiff began to voice her opposition to being posted to the mental health caseload. She testified that it was too challenging, taking into account both the difficulties of dealing with " that population" and the circumstances of her own hearing impairment. She deemed it " less desirable" than the alternatives. She complained that training was withheld.
Burlington Northern’s plaintiff was a woman who had secured a position as a fork-lift operator on a railroad repair crew of which she was the sole female member. She complained she was subjected to sexual innuendoes, after which she was fired. Upon review by a more senior administrator, she was rehired after thirty-seven days but then given a task in her opinion more onerous and less prestigious than her fork-lift job. A jury agreed with her and awarded her damages upon finding that the shift in position constituted retaliation. In the Court’s opinion, that jury had before it considerable evidence that the duties to which White was reassigned were " by all accounts more arduous and dirtier"; that the " forklift operator position required more qualifications, which is an indication of prestige"; and that " the fork-lift operator position was objectively considered a better job and the male employees resented White for occupying it"; 548 U.S. 53, 71.
Here, except for her own opinion, plaintiff has supplied this court with no evidence whatsoever that the mental health caseload was more arduous, dirtier, of diminished prestige, considered by anyone other than herself to be a lesser job, or in the opinion of anyone else on staff the source of either resentment against her or esteem for her for stepping into this position. " By all accounts" is in this case reduced to " by plaintiff’s account" in the form of a completely subjective assessment of the reassignment. The White decision informs us that the determiner of what is material is the objective or reasonable employee, because " [a]n objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here"; 548 U.S. 53, 69. Plaintiff produced absolutely nothing that objectively supports her opinion.
The mental health caseload presents challenges which many individuals would welcome. Additionally, it includes at least one tangible reward (among others that are intangible), in the reduced client roster it entails. That reduced caseload facilitates an officer’s opportunity to forge a deeper working relationship with each individual she serves. Indeed, it is easy to conclude that the heightened sensitivity required of one posted to this position would elevate her status in the eyes of her peers. If a poll of probation officers might have established that the average, neutral officer would have run away from this assignment, it was plaintiff who ought to have adduced that evidence. Her failure to do so leaves the objective observer feeling that management’s decision is only offensive in that it forces plaintiff out of her comfort zone.
Her protest that no training was provided is weak. She had twenty years’ general experience, in which mentally-challenged individuals formed part of her caseload. Her own supervisor had led one of the pilot programs the Branch established before 2012, and was stationed in the same building as plaintiff She offered herself as a resource to plaintiff, and plaintiff took advantage of her insight from time to time. Plaintiff has not pointed to any instance in her new position when she confronted a problem requiring any specific training which she lacked.
Her most dramatically-framed aversion to the reassignment relates to her perception of her safety, a concern which is of course not a matter to be taken lightly. She recalled many times an experience she had had at 136 Main St. in November of 2011. There, she asserted, one of her clients who was " paranoid and schizophrenic and in a psychotic state, very angry and foaming at the mouth, yelling and threatening, " put her in fear of her safety. Police intervened and arrested the individual. This incident precipitated her reassignment from 136 Main St. to 183 Main St. as described in part II-C-1-a-1, above. She suffered no physical contact during this incident, and she reported no recurrence with this or any other individual in the six years since.
From this incident, however, she draws conclusions about her safety that rest upon a double fallacy. First, she posits that because one mentally-challenged individual frightened her, others will also do so. To say that one mentally-challenged person’s breach of peace is predictive of a similar outburst on the part of all mentally-challenged people is a non sequitur, and indeed tars with the same brush all individuals in a group in a manner that comes close to exemplifying the kind of discrimination that the statute under which plaintiff comes before this court was designed to eliminate.
§ 46a-60(a) includes among the populations it protects those, like plaintiff, afflicted with a physical disability, as well as those, like the people she chooses to avoid, afflicted " with any past or present history of mental disability."
At the same time, her fixation on the mentally-challenged leads her into a blind spot as to the potential risks posed by other clients of the probation office. The job description for her position contains this caveat:
Working Conditions: Incumbents may be exposed to some risk of injury from assaultive/abusive clients; may be exposed to disagreeable conditions when performing home visits or interviewing incarcerated clients; may be exposed to communicable diseases.
Nothing in this warning is peculiar to the job of working with mentally-challenged persons. In singling them out as especially dangerous, plaintiff implies that the remaining clients of her office present fewer safety risks. There is no proof that people with mental health issues are more dangerous than sex offenders, or opioid addicts, or even murderers. Surely some of those offenders may wind up in the Technical Violations Unit. To the extent she would have one believe that the mentally-challenged as a class pose greater risks to her safety than do the remaining clients of probation, she is just venting a prejudice without any basis in fact. Whatever genesis her safety concerns may have in her personal experience, the lessons she draws from that personal experience are unpersuasive to any objective observer.
In contrast to the mental health caseload, plaintiff asserted, she enjoyed the Technical Violations Unit and felt comfortable there. But " if a transfer ... involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action"; Charles v. Connecticut, Judicial Branch, Court Support Services Div., 556 F.Supp.2d 123, (2008). Plaintiff had a lengthy posting in Technical Violations, but there is no basis for determining that she thus acquired tenure in the position.
Plaintiff relies substantially upon the ruling (denying summary judgment) in White v. City of Middletown, 45 F.Supp.3d 195 (D.Conn. 2014). That case is starkly distinct from hers. White was a mid-level manager who filed complaints against his superior which were substantiated, resulting in the supervisor’s being suspended for a short time. Upon his return, he overtly threatened to avenge himself on White; he berated him in the most offensive and racist teams; he assigned him to qualitatively and quantitatively more onerous duties than any other employee; and he, along with a cohort, filed complaints against White that resulted in his demotion. The odious, cruel, and criminal behavior described in that case marks it as different in kind, not degree, from the worst of the behavior plaintiff ascribes to defendant’s agents here.
It is further pertinent to this inquiry that in the summer of 2012, ten of the district’s officers were reassigned. Plaintiff provided no evidence whether those changes resulted in more or less difficult assignments for the other staff members involved, or whether anyone other than she complained or not. For her part, she has been reassigned to a task for which she has the requisite skills and experience. The job description for her position, while not a complete shelter in which defendant may take haven, readily contemplates that a person of her talents and experience may be assigned to a position of this nature. She has raised her claim of disability as a barrier to practically any personnel decision management might make, unless it is one she approves of. It is clear that the reassignment was not targeted at plaintiff for any reason allowing her to claim that it was retaliatory. She has not made out a prima facie case that the reassignment is even adverse, let alone retaliatory.
2. Shunning
Plaintiff alleges in paragraph 32 of her complaint that she " has been shunned by her supervisor since her request for reasonable accommodation for her disability." That is the entirety of the complaint as to this aspect of retaliation.
Burlington Northern calls to mind the old maxim " de minimis non curat lex " - " the law does not concern itself with trifles." The employer’s action must be material, so as " to separate significant from trivial harms"; 548 U.S. 53, 67. Rejecting any invitation to author " a general civility code for the American workplace, " the Court emphasized that an " employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience ... ‘Courts have held that personality conflicts at work that generate antipathy’ and ‘snubbing ’ by supervisors and co-workers are not actionable under [the pertinent statutes]"; 548 U.S. 53, 68. (Emphasis added.) " Snub" and " shun" may not be direct synonyms, but few would find behavior included in the description of one to not be equally comfortably at least implied by the other.
Arguably, the Court’s comment is merely dictum, and " snubbing" in a different case could be held actionable. Plaintiff’s further problem with this aspect of her case, however, is that she has presented this court with no credible proof that what she complains of actually happened. Primarily through the testimony of Ms. Merchant, it emerged that sometime during the summer of 2012 tension between these two women had risen to the point at which plaintiff levied a virtual charge of bad faith to her supervisor over the efforts being made to satisfy her, and chose to respond only perfunctorily thereafter. Plaintiff apparently had silently harbored that sense of bad faith for at least the two preceding years as well. Coincidentally, Ms. Merchant herself is deaf in one ear and thus was predisposed to commiserate with plaintiff’s plight. She attempted to find a quiet space free of background noise, and in her opinion and in that of this court, she succeeded in doing so. She reached out to plaintiff on various occasions to permit her to understand the decisions she made, but plaintiff rejected her overtures and elected to speak with Merchant only as the need arose.
As to the victim, both " shun" and " snub" describe actions over which the victim has no control. If there was a frosty silence between plaintiff and Merchant, plaintiff was not a passive bystander helpless to alleviate any distress that might have caused. She has not proven that Merchant or any other of defendant’s employees created the situation she alleges in paragraph 32.
IV. Order
In light of the foregoing, the complaint is dismissed.