United States District Court, D. Connecticut
Allen Payne, Plaintiff: John Cyril Drapp, LEAD ATTORNEY,
Drapp & Jaumann LLC, Bridgeport, CT.
Industrial Outsourcing Limited Partnership, Defendant:
Alexandria L. Voccio, LEAD ATTORNEY, Christopher M. Vossler,
Martha Anne Shaw, Howd & Ludorf, Hartford, CT; David S.
Monastersky, Howd & Ludorf, LLC, Hartford, CT.
OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Dkt.
Vanessa L. Bryant, United States District Judge.
plaintiff, Allen Payne (" Payne" ), brings this
action against PSC Industrial Outsourcing, Limited
Partnership (" PSC" ), for disability
discrimination in violation of Conn. Gen. Stat. §
46a-60(a)(1), violations of the Americans with Disabilities
Act (" ADA" ), 42 U.S.C. § 12102, and
retaliation and hostile work environment in violation of
Conn. Gen. § 46a-60(a)(4), for actions taken in relation
to his termination following disclosure of a cardiac
condition. Currently pending before the Court is the
Defendant's Motion for Summary Judgment. For the reasons
that follow, the Defendant's Motion for Summary Judgment
is GRANTED IN PART and DENIED IN PART.
following facts relevant to the Defendant's Motion for
Summary Judgment are undisputed unless otherwise noted.
Plaintiff, Allen Payne, a resident of Waterbury, Connecticut,
began working for Defendant PSC on or about January 21, 2002
as a Technician/Laborer. [Dkt. 42-1, Def.'s 56(a)1 Stmt.
¶ 13]. Plaintiff was later promoted to the position of
Coordinating Supervisor. [Id. ¶ 14]. PSC, a
Delaware corporation with its principle place of business in
Houston, Texas, provides services to power plant facilities
that include the erecting and dismantling of scaffolding at
plants where maintenance or cleaning is necessary.
[Id. ¶ 1]. PSC's scaffolding crews are
responsible for erecting and dismantling the temporary
scaffolding structures -- which can be several stories high
-- that hold people and materials necessary for maintenance
work. [Id. ¶ ¶ 2,3]. The parties agree
that scaffolding work is " strenuous, labor intensive,
dangerous, and is completed in extreme conditions."
[Id. ¶ 12]. Although some PSC locations had a
wench or elevator with which materials and men could be
carried up without the use of stairs, the wenches and
elevators were not always operational at all locations.
[Id. ¶ ¶ 4,5]. However, the parties
dispute the extent to which a necessary component of
scaffolding work involves the carrying of construction
materials via stairs from the ground to the top of the
scaffold. [Dkt. 43-2, Pl.'s 56(a)1 Stmt. ¶ 4].
around 2007-2008, Plaintiff was diagnosed with testicular
cancer and was placed on medical leave from his employment at
PSC for approximately one year while he underwent treatment.
[Dkt. 42-1, Def.'s 56(a)1 Stmt. ¶ 15]. During his
treatment for testicular cancer, Plaintiff developed a
cardiac condition and suffered a heart attack. [Id.
¶ 16]. Upon his return to work in 2009, Plaintiff was
assigned to work as a Foreman at the PSC job site in New
Haven, Connecticut. [Id. ¶ ¶ 17,18]. After
PSC lost its contract for the New Haven job site, Plaintiff
was transferred back to the PSC job site in Bridgeport, where
he was assigned to assist in assembling and disassembling
scaffolding. [Id. ¶ 20].
alleges that he informed the Location Manager at Bridgeport,
Richard Woodhall (" Woodhall" ), that his heart
condition prevented him from engaging in excessive stair
climbing and that Woodhall assured him that PSC would
accommodate him. [Dkt. 42-5, Payne Dep. Ex. B, at 60].
Plaintiff alleges that his direct supervisor, Travis Button
(" Button" ), also agreed to accommodate him and
assigned him to " ground work" or to tasks that did
not involve the climbing of stairs. [Id. at 65].
Such " ground work would involve bringing materials to
the location where the scaffold would be erected and either
attaching the materials to ropes or pulleys, if available, or
passing the materials to the workers erecting the
scaffolding. [Dkt. 42-1, Def.'s 56(a)1 Stmt. ¶
25-27]. Plaintiff was also able to use a wench or elevator,
if one was available to ferry materials to the top of the
scaffold. [Id.]. Finally, Plaintiff would also
assume Button's supervisory and managerial functions when
Button was absent from work. [Id. ¶ ¶ 29,
30]. For two years, the parties agree that Plaintiff was able
to continue working for PSC on its scaffolding crews without
incident, despite the limitations of his heart condition.
[Dkt. 42-2, Def.'s Mem. at 28; Dkt. 43-1, Pl.'s Opp.
of 2011, while Button was out of the office, Plaintiff
alleges that he discovered paperwork indicating that there
were individuals on the payroll who were not working at the
PSC site. [Dkt. 42-5, Payne Dep. Ex. B, at 77-78.]. Plaintiff
described the individuals as " ghost employees" and
alleges that one such individual was Button's brother.
[Id. at 78]. Plaintiff claims that he called Button
to question him about the paperwork and to express
disapproval with the practice of paying " ghost
employees," and that Button responded that if Plaintiff
got involved, he would " not be working."
[Id. at 80].
to the Plaintiff, it was after this conversation that
Button's " whole demeanor" began to change.
[Id. at 81.]. Plaintiff claims that Button began to
harass him about his inability to climb stairs, making
comments such as, " [y]ou have a bad heart old man,
I'll send you home," " [y]ou can't walk
from here to around the block without falling out," and
" [y]ou can't be here that much, you're not
going to be around that much longer anyway because of your
heart condition you will probably be dead in a few years or a
few months." [Id. at 84]. Plaintiff claims that
Button began making these comments toward him on a daily
basis. [Id. at 86]. Plaintiff also alleges that
Button began asking him to perform tasks involving numerous
flights of stairs; when Plaintiff told Button he could not
perform these tasks, Mr. Button told him he could go home.
[Id. at 98].
deposition, Plaintiff recalled three incidents where he was
sent home for being unable to perform tasks that involved
climbing stairs. [Id. at 85]. During two of these
instances, Plaintiff claims that was instructed to carry
materials up stairs, rather than use ropes or pulleys to
hoist them. [Id. at 87-92]. On the second occasion,
workers were using a pulley and a crane to hoist the larger
materials, but smaller materials, such as " jacks or
wooden blocks" were carried up manually. [Id.
at 93-97]. No elevator or wench was operational at the time.
[Id. at 93-94]. Plaintiff alleges that every time he
was sent home he expressed to Woodhall his concern and
dislike at being sent home and that he felt he was being
harassed by Button. [Id. at 99-105].
26, 2011, Plaintiff claims he was at a job site for which no
elevator or wench was operational, working from the ground
attaching pipes to a rope for the other workers on top of the
scaffold to hoist up. [Id. at 88-89]. He alleges
that Button told him he needed him to go up to the top floor
and carry the materials up the stairs. [Id.]. When
Plaintiff told Button he could not carry the materials up the
stairs, he was told to go home. [Id. at 89]. In
response, Plaintiff accused Button of harassing and abusive
behavior; Button and Plaintiff then continued to argue and
Button eventually told Plaintiff, " Go home. You're
threatening me." [Id. at 131]. Plaintiff claims
that Button began yelling, but also admitted it was "
possible" that Plaintiff raised his voice to Button as
well. [Id. at 174-175].
claims that Woodhall subsequently conducted an investigation
and spoke to Plaintiff's co-workers who had been present
during the verbal altercation, and that the co-workers "
confirmed" that Plaintiff had acted inappropriately
toward Button. [Dkt. 42-4, Woodhall Decl. Ex. A at ¶
16]. The next day, on July 27, 2011, Plaintiff, Woodhall,
Button, and Mike Sanchez, another supervisor, met to discuss
the incident from the previous day. [Id. at ¶
17; Amended Compl. at ¶ 53]. At this meeting, Woodhall
asked Plaintiff to sign a write-up for insubordination and
threatening a supervisor, but Plaintiff refused to do so.
[Dkt. 42-4, Ex. A at ¶ 19; Dkt. 42-9, Ex. F
(Disciplinary Warning); Amended Compl. at ¶ 53]. When
Woodhall asked both men what happened, Plaintiff admits that
he became irate when Button began telling his side of the
story. [Dkt. 42-1 ¶ 78]. Plaintiff then began yelling,
" That's a fucking lie" and " You're
just picking on me because you know I have proof about ghost
employees." [Id. ¶ 79]. Plaintiff made a
statement about how Woodhall and Button needed to "
handle" the situation, which both men perceived as a
threat. [Dkt. 42-4, Ex. A at ¶ 20; Dkt. 42-5, Ex. B, at
145-146]. After the July 27 meeting, Plaintiff was placed on
an administrative leave of absence. [Dkt. 42-4, Ex. A at
August 2, 2011, a meeting took place between Plaintiff, Area
Manager Chris Egger (" Egger" ), and Woodhall.
[Dkt. 42-1 ¶ 85]. Plaintiff alleges that he attempted to
show Egger the documentation he had about the " ghost
people," but Egger did not want to see it. [Dkt. 42-5,
Ex. B, at 164]. They discussed Plaintiff's conduct at the
meeting and the statement made by Plaintiff that Mr. Button
and Mr. Woodhall perceived as a threat. [Id. at
162]. Defendant claims that at this point Plaintiff became
agitated and raised his voice, then stood up, leaving Egger
feeling threatened. [Ex. H at ¶ ¶ 10-12]. Egger
then informed Plaintiff he was being terminated for
threatening a supervisor, before ending the meeting.
[Id.]. Plaintiff alleges Mr. Egger told him, "
You don't trust Travis Button, you don't trust Mr.
Woodhall, you don't need to be here, your employment is
terminated." [Dkt. 42-5, Ex. B, at 163]. Following his
termination, Plaintiff contacted Defendant's human
resources department and stated " [h]ow could you
terminate me when I have information on whistleblowers, on
conduct pertaining to whistle blowers?" [Id. at
subsequently filed a complaint with the Connecticut
Commission on Human Rights and Opportunities ("
CHRO" ) on September 15, 2011, alleging that he had been
discriminated against on the basis of his physical
disability. [Dkt. 42-7, Ex. D]. He received a release of
jurisdiction letter from the CHRO on November 28, 2012. [Dkt.
20-1, Amended Compl. Ex. A]. Plaintiff subsequently filed
this action against PSC in the Connecticut Superior Court on
February 20, 2013, and Defendant removed the case to this
Court on March 14, 2013, citing 28 U.S.C. § 1331 and 28
U.S.C. § 1332(a)(1).
plaintiff filed an Amended Complaint in response to the
defendant's motion to dismiss, alleging violations of the
Connecticut Fair Employment Practices Act (" CFEPA"
), on the basis of both disability discrimination, failure to
accommodate, retaliation and hostile work environment, and
violations of the Americans with Disabilities Act ("