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Payne v. PSC Industrial Outsourcing, L.P.

United States District Court, D. Connecticut

September 30, 2015

ALLEN PAYNE, Plaintiff,

          For Allen Payne, Plaintiff: John Cyril Drapp, LEAD ATTORNEY, Drapp & Jaumann LLC, Bridgeport, CT.

         For PSC 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.


         Hon. Vanessa L. Bryant, United States District Judge.

         I. Introduction

         The 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.

         II. Factual Background

         The following facts relevant to the Defendant's Motion for Summary Judgment are undisputed unless otherwise noted.

         The 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].

         In or 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].

         Plaintiff 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. at 18].

         In May 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].

         According 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].

         At his 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].

         On July 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].

         Defendant 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 ¶ 24].

         On 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 164-165].

         Defendant 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).

         The 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 (" ...

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