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Phadnis v. Great Expression Dental Centers

Court of Appeals of Connecticut

January 26, 2015

UKTI PHADNIS
v.
GREAT EXPRESSION DENTAL CENTERS OF CONNECTICUT, P.C. [*]

         Superior Court, Judicial District of Hartford File No. CV-13-6042588

         Memorandum of decision on defendant's motion for summary judgment. Motion granted. Proceedings

          Michael T. Petela, Jr., for the plaintiff.

          Brian C. Hoeing, Craig A. Redinger, pro hac vice

          Jeffrey D. Wilson, pro hac vice, for the defendant.

          OPINION

          ELGO, J.

         Before this court is a motion for summary judgment filed by the defendant, Great Expression Dental Centers of Connecticut, P.C. The plaintiff, Ukti Phadnis, is a dentist who was terminated from the employ of the defendant on August 16, 2012, and commenced this action on May 31, 2013. In the first three counts of her amended complaint, the plaintiff alleges violations of General Statutes § 46a-51 et seq., the Connecticut Fair Employment Practices Act (CFEPA). Specifically, the plaintiff alleges her termination was the result of discrimination based on the plaintiff's pregnancy and that her termination was a result of unlawful retaliation. In the remaining counts, the plaintiff further alleges, with respect to her employment contract with the defendant, breach of contract, breach of implied contract, and breach of the covenant of good faith and fair dealing. For the reasons outlined below, this court grants summary judgment as to all counts.

         The amended complaint alleges the following facts. The plaintiff, a female, was employed by the defendant as a dentist in its East Windsor office from December 12, 2011, through her termination on August 16, 2012. In May, 2012, the plaintiff notified her employer that she was pregnant and that her doctor had placed restrictions on her exposure to X ray radiation. Further, in May, 2012, the plaintiff began to suffer from morning sickness that often required her to be late for work. To address her tardiness, the plaintiff met with her supervisor, Dr. Paul Kim, in May, 2012, to arrange for an adjustment to her schedule, which would allow her to arrive at 8:30 a.m. instead of 8 a.m. Dr. Kim and the plaintiff again met in mid-June to discuss maintaining her late start time, which Dr. Kim did not oppose. Then, in mid-July, aware of the scheduling problems arising from her morning sickness-induced tardiness, the plaintiff requested to be transferred to the defendant's Manchester office where additional dentists were on staff to assist with coverage in the event she was late to work. Dr. Kim agreed to her transfer.

         During this time, the plaintiff also alleges, she brought to the defendant's attention its discriminatory application of disciplinary policies in regard to two other employees in the office. Despite a good work record, positive feedback, and only one patient complaint during her tenure, the plaintiff was terminated on August 16, 2012. The defendant's stated reasons for the termination were as follows: (1) the plaintiff's inability to maintain the schedule of the office, which had been brought to the plaintiff's attention twice prior; (2) complaints from staff and patients concerning her performance; and (3) unprofessional interactions with staff.

         DISCUSSION

         ‘‘Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment.'' (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). ‘‘Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.'' (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).

         ‘‘As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.'' Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, ‘‘[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.'' (Emphasis omitted; internal quotation marks omitted.) Walker v. Dept. of Children & Families, 146 Conn.App. 863, 870, 80 A.3d 94 (2013), cert. denied, 311 Conn. 917, 85 A.3d 653 (2014). ‘‘Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].'' (Internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013).

         COUNT ONE

         The plaintiff alleges in count one of her amended complaint that the defendant's stated reason for her termination, chronic tardiness, was a pretext for unlawful discrimination based on her pregnancy. Specifically, the plaintiff claims that the defendant discriminated against her on the basis of her pregnancy in violation of § 46a-60 (a) (1) and (7). Section 46a-60 (a) provides in relevant part: ‘‘It shall be a discriminatory practice in violation of this section . . . (1) [f]or 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 . . . 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 . . . .'' Under CFEPA, ‘‘ ‘[p]hysically disabled' refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness . . . .'' General Statutes § 46a-51 (15).

         Although the plaintiff has cursorily referenced the previously mentioned provision, she has not established nor adequately briefed a claim that her cause of action supports discrimination based on disability. Moreover, neither pregnancy nor morning sickness is recognized as a disability under these provisions.[1] Therefore, to the extent that the plaintiff has made a claim under this provision, this court considers it abandoned.

         As to the plaintiff's claims regarding § 46a-60 (a), the provision states in pertinent part: ‘‘It shall be a discriminatory practice in violation of this section . . . (7) [f]or an employer, by the employer or the employer's agent: (A) To terminate a woman's employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy . . . (E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the ...


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