United States District Court, D. Connecticut
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE
Plaintiff, Konstantinos Stefanidis, has sued his former employer, Jos. A. Bank Clothiers, Inc. (“Jos. A. Bank”). Compl., ECF No. 1-2. Mr. Stefanidis alleges that he has a disability, namely chronic tonsillitis, and that Jos. A. Bank harassed and discriminated against him as a result. Id. ¶¶4-5. He makes disability discrimination claims under the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §46a-60, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq.. See Compl. at First Count, ECF No. 1-2. He also alleges that Jos. A. Bank negligently and/or intentionally inflicted emotional distress. Id. at Second and Third Counts.
Jos. A. Bank has filed a motion for summary judgment, seeking to dismiss all of Mr. Stefanidis’s claims. Mot. for Summ. J., ECF No. 37. For the reasons that follow, the motion is GRANTED in its entirety.
I. STATEMENT OF FACTS
Jos. A. Bank is a menswear retail company that hired Mr. Stefanidis in mid-2005. Def’s Local Rule 56(a)1 Stmt. ¶¶1, 4, 10, ECF No. 37-2; Pl.’s Ex. A, Stefanidis Aff ¶3, ECF No. 45. Mr. Stefanidis began working at Jos. A. Bank as a retail sales associate in Westport, Connecticut. Pl.’s Ex. A, Stefanidis Aff. ¶6, ECF No. 45. Jos. A. Bank subsequently promoted him to key holder, assistant manager in 2008, and store manager in 2009. Id.; see also Def.’s Local Rule 56(a)1 Stmt. ¶¶16, 18, ECF No. 37-2. In 2010, he was transferred to the Fairfield, Connecticut store as the store’s manager, where the events that form the basis for this case occurred. Pl.’s Ex. A, Stefanidis Aff ¶6, ECF No. 45.
Mr. Stefanidis suffered from “chronic tonsillitis” for a number of years before he was hired and while he worked for Jos. A. Bank. Id. ¶7. He testified that the tonsillitis reduced his stamina, gave him earaches and fever, made him more susceptible to getting sick, and impaired his abilities to speak and swallow. Id. ¶¶7-8; Def’s Ex. D, Stefanidis Dep. 28:8-16, 29:20-30:10, ECF No. 37-6. He also indicated that, before they were removed, his tonsils were very large and that he had difficulty swallowing and had sleep apnea. Def’s Ex. D, Stefanidis Dep. 29:1-6, ECF No. 37-6. Mr. Stefanidis contends that he missed work often for his condition and that he informed his supervisor, Joan Callanan, of his condition generally and when it caused him to miss work. Pl.’s Ex. A, Stefanidis Aff ¶8, ECF No. 45.
In November 2011, December 2011, and March 2012, Mr. Stefanidis had three appointments with a doctor at Soundview Medical Associates at which he complained of sore throat. Def’s Local Rule 56(a)1 Stmt. ¶¶24-27, ECF No. 37-2. The doctor’s notes from the March 2012 visit indicate that Mr. Stefanidis was considering a tonsillectomy. Id. ¶¶28-29. He also noted that Mr. Stefanidis had “chronic pharyngitis.” Id. ¶29.
On April 3, 2012, Mr. Stefanidis saw Dr. Robert Weiss, an ear, nose and throat specialist. Id. ¶30. During this visit, he scheduled a tonsillectomy for May 9, 2012. Id. Mr. Stefanidis informed Ms. Callanan about the surgery the month before it occurred and indicated to her that he would return to work in early June. See Def’s Ex. M, Callanan Dep. 30:12-31:16, ECF No. 37-15; Pl.’s Ex. A, Stefanidis Aff ¶¶11, 13, ECF No. 45; see also Pl.’s Ex. G, E-mail dated June 4, 2012, ECF No. 47 (indicating that Mr. Stefanidis had initially intended to return to work in June). He claims that she was upset that he was taking leave and questioned him about who would operate the store in his absence. Pl.’s Ex. A, Stefanidis Aff ¶¶13-14, ECF No. 45.
Mr. Stefanidis also sought leave under the Family Medical Leave Act (“FMLA”) for the surgery and recovery time, which Jos. A. Bank approved through May 23, 2012. Def’s Ex. D, Stefanidis Dep. 59:1-10, ECF No. 37-6; Def’s Local Rule 56(a)1 Stmt. ¶50, ECF No. 37-2; Def’s Ex. X, Memo regarding FMLA Leave, ECF No. 37-26. Consistent with Ms. Callanan’s instructions, Mr. Stefanidis also obtained a note from Dr. Weiss supporting his claim for leave. Pl.’s Ex. A, Stefanidis Aff ¶12, ECF No. 45; see also Pl.’s Ex. D, Letter dated Apr. 19, 2012, ECF No. 47. The letter indicated the date of the procedure and that Mr. Stefanidis would not be able to return to work “until he is considered medically cleared.” Id.
Mr. Stefanidis underwent a tonsillectomy on May 9, as scheduled. Def’s Local Rule 56(a)1 Stmt. ¶39, ECF No. 37-2. He returned to work on May 23, 2012 at the end of his FMLA leave. Id. ¶50. After some post-operative visits during May 2012, Mr. Stefanidis did not see a physician for at least a year and half about this tonsillitis. Id. ¶¶41-43, 47; Pl.’s Local Rule 56(a)2 Stmt. ¶47, ECF No. 48. However, he contends that he still suffers symptoms from his tonsillitis including throat pain, fatigue, and dry throat. Pl.’s Local Rule 56(a)2 Stmt. ¶47, ECF No. 48; Pl.’s Ex. A, Stefanidis Aff. ¶18, ECF No. 45.
Jos. A. Bank contends that Mr. Stefanidis returned to work without any restrictions and that he did not inform anyone at Jos. A. Bank that he had a permanent condition or needed accommodation. Def.’s Local Rule 56(a)1 Stmt. ¶¶50-53, ECF No. 37-2. Mr. Stefanidis indicates that he had not yet recovered from the surgery when he returned to work, that he continued to suffer from symptoms of tonsillitis, mentioned above, and that he could not lift heavy objects. Pl.’s Ex. A, Stefanidis Aff. ¶18, ECF No. 45. Mr. Stefanidis also claims that Ms. Callanan called him at home during his FMLA leave and told him that sales figures were down. Id. ¶16. He contends that, as a result of Ms. Callanan’s calls, he returned to work before he was ready and that, upon his return, he found the store to be well-maintained and the sales figures to be at a normal level. Id. ¶¶16-17; see also Pl.’s Ex. G, E-mail dated June 4, 2012, ECF No. 47 (indicating that Mr. Stefanidis had initially intended to return to work in June but had come back early).
Mr. Stefanidis admits that he did not request additional time away from work. Def.’s Ex. D, Stefanidis Dep. 69:1-6, ECF No. 37-6. He testified that he told Anthony Macaluso, the new store manager, that he was dizzy, had a sore throat, and was not operating at “a hundred percent.” Id. at 63:5-13. There is no record evidence, however, that Mr. Stefanidis formally sought an accommodation for his condition.
In 2009, 2010 and 2011, Mr. Stefanidis was counseled for various performance issues, including a failure to secure the store’s bank deposit, failing to achieve acceptable audit results, and failing to provide customer service to a particular customer. See Def’s Local Rule 56(a)1 Stmt. ¶¶19-21, 23, ECF No. 37-2; Pl.’s Local Rule 56(a)2 Stmt. ¶¶19-21, 23, ECF No. 48. Mr. Stefanidis contends that a bad economy caused his poor sales numbers but does not otherwise deny that these performances issues occurred. Pl.’s Local Rule 56(a)2 Stmt. ¶21, ECF No. 48.
Two additional incidents also occurred which resulted in his demotion and termination, respectively. First, while he was out for his tonsillectomy an anonymous employee in the Fairfield store called the Jos. A. Bank’s whistle-blower hotline and indicated that Mr. Stefanidis was improperly charging business-related shipping costs to the company’s Westport store, in a plot to get back at the Westport store manager. Def’s Local Rule 56(a)1 Stmt. ¶48, ECF No. 37-2. Shipping expenses are deducted from each store’s profits. Id. ¶58. Thus, charging shipping costs to another store would negatively impact that store’s profitability. Id.
When Mr. Stefanidis returned to work after his tonsillectomy, Michael Staines, a Regional Loss Prevention Manager, spoke to him about the anonymous complaint. Id. ¶54. Mr. Stefanidis signed a statement admitting he had improperly used the shipping codes. See Def’s Ex. JJ, Pl.’s Stmt., ECF No. 37-38. But now, in the context of this litigation, he denies “intentionally” misusing the shipping codes and argues that other employees had access to the shipping codes. See Pl.’s Ex. A, Stefanidis Aff. ¶¶20-21, ECF No. 45. Jos. A. Bank demoted Mr. Stefanidis as a result of this incident and placed him on “final written warning.” Def.’s Local Rule 56(a)1 Stmt. ¶59, ECF No. 37-2.
Second, Jos. A. Bank claims that Mr. Stefanidis and an assistant manager, who was senior to him at the time, improperly closed the Fairfield store on the evening of August 9, 2012. The company’s policies require employees to lock the doors of stores at the scheduled closing time and complete daily closing procedures, including counting cash in the registers and preparing daily bank deposits, after the store is closed. Def’s Local Rule 56(a)1 Stmt. ¶61, ECF No. 37-2.
On the day in question, the store’s alarm was armed at 9:02 p.m., indicating in Jos. A. Bank’s view, that either Mr. Stefanidis began closing procedures before the scheduled 9 p.m. closing time or that he did not complete the required procedures. Id. ¶¶61-67. Mr. Stefanidis contends that the clock on the alarm did not work properly, but does not directly deny closing the store improperly. Pl.’s Ex. A, Stefanidis Aff ¶¶24-27, ECF No. 45. He also contends that, even if the closing procedures were not properly completed that night, he was “not responsible” for the closing and was following instructions from the assistant manager, who was senior to him at the time. Id.
Jos. A. Banks terminated Mr. Stefanidis on August 16, 2012, because it believed that Mr. Stefanidis had improperly closed the store while he was on “final written warning.” Def’s Local Rule 56(a)1 Stmt. ¶¶68, 70, ECF No. 37-2. Mr. Stefanidis contends that he was discharged because of his chronic tonsillitis. Pl.’s Local Rule 56(a)2 Stmt. ¶70, ECF No. 48. It is undisputed that the assistant manager who also was responsible for closing the store that same evening was not terminated as a result of the incident. Def.’s Local Rule 56(a)1 Stmt. ¶74, ECF No. 37-2. Jos. A. Bank indicates that this assistant manager had no prior disciplinary incidents and therefore, was subject to more limited disciplinary action. Id. ¶75.
The Court shall grant summary judgment, if there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party carries the burden of demonstrating that there is no genuine material dispute of fact by citing to “particular parts of materials in the record.” See Fed. R. Civ. P. 56(c)(1)(A)-(B); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000). A dispute regarding a fact is “‘genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party’” and material if the substantive law governing the case identifies those facts as material. Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quoting Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998)); Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing a summary judgment motion, the Court must resolve all ambiguities and draw all inferences from the record as a whole in favor of the non-moving party. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted).
Mr. Stefanidis claims that Jos. A. Bank discriminated against him on the basis of his alleged disability, tonsillitis, in violation of the ADA and CFEPA when it demoted and terminated him. Compl. at First Count, ECF No. 1-2. He also contends that he was subjected to a hostile work environment, in violation of the same statutes, and appears to also suggest that Jos. A. Bank failed to reasonably accommodate his disability. Id. Finally, he claims that Jos. A. Bank negligently and/or intentionally inflicted emotional ...