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Fasulo v. HHC Physicianscare, Inc.

Superior Court of Connecticut, Judicial District of Hartford, Hartford

May 24, 2016

Donna Fasulo
v.
HHC Physicianscare, Inc. dba Hartford Healthcare Medical Group Opinion No. 133785

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.

          MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Cesar A. Noble, J.

         This employment case comes before the court on the defendant's motion for summary judgment as to both counts of the plaintiff's complaint. The court agrees with the defendant that because of the plaintiff's disability she was unable, with or without a reasonable accommodation, to maintain regular, consistent, and predictable attendance, an essential function of her job, and therefore grants summary judgment in favor of the defendant.

         I

         FACTS

         On October 15, 2014, the plaintiff, Donna Fasulo, filed a two-count complaint against the defendant, HHC Physicianscare, Inc., with the first count sounding in disability discrimination and the second count raising a failure to provide a reasonable accommodation claim, both under General Statutes § 46a-60(a)(1) of the Connecticut Fair Employment Practices Act (CFEPA). The plaintiff alleges the following facts in the complaint. In May 2006, the defendant hired the plaintiff for work as a patient service coordinator. On August 1, 2013, the defendant terminated the plaintiff's employment on account of the plaintiff having excessive absences from work, which the plaintiff alleges were related to her disabilities. The plaintiff's complaint identifies, specifically, her disabilities as mild to moderate spinal compression/degenerative disc disease, congestive heart failure, and a rectal tumor. (Compl. ¶ ¶ 6 & 7.)

         The parties agree that the plaintiff was absent from work for extended periods of time between December 2012 and the end of July 2013. The plaintiff claims that all of her absences from work were related to her disabilities as follows: December 12, 2012 through March 3, 2013 (the FMLA leave) for neck surgery (Compl. ¶ 12; Pl.'s Dep. 59:1-21); March 22, 2013 through March 25, 2013 on account of high blood pressure and heart palpitations (Compl. ¶ 14); March 25, 2013 to April 8, 2013 for kidney failure, congestive heart failure, and a bed rest (Compl. ¶ ¶ 15-18; Pl.'s Dep. 63:16-67:4); April 8, 2013 through May 6, 2013, leave offered by the defendant's human resources department, during which time the plaintiff suffered a severe stomach ailment and 'aftereffects of congestive heart failure' (Compl. ¶ ¶ 18-19; Pl.'s Dep. 67:4-71:11); June 12, 2013 through June 14, 2013, and June 17, 2013 through June 18, 2013 on account of a cardiac catheterization and complications related to the procedure (Compl. ¶ 21; Pl.'s Dep. 75:11-76:14); July 11, 2013 and July 12, 2013, as well as July 18, 2013 and July 19, 2013, on account of a rectal tumor, including a colonoscopy, surgery and biopsy, and postoperative recovery (Compl. ¶ 22; Pl's Dep. 79:7-23; Pl.'s Dep. 81:22-82:25). The plaintiff further alleges that she provided explanations to the defendant regarding her work absences and informed the defendant that she would return to work following the absences. After the plaintiff returned to work, the plaintiff was warned or " written up" by the defendant for absences related to her disabilities in June 2013 and July 2013. On January 6, 2014, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities and received a release of jurisdiction on July 15, 2014. Additional facts will be set forth as necessary.

         On December 1, 2015, the defendant filed its motion for summary judgment and memorandum of law on the complaint on the ground that the plaintiff cannot establish a prima facie case of disability discrimination as none of the conditions identified in the plaintiff's complaint constitute a physical disability under the CFEPA. In the alternative, the defendant states that the plaintiff was not, as required to establish a prima facie case, qualified for the position because she could not maintain regular, predictable attendance, which was a requirement of the position. The defendant also moves for summary judgment on the ground that the plaintiff did not have a disability that required an accommodation and never requested one from the defendant.[1]

         On January 20, 2016, the plaintiff filed her objection and memorandum of law on the motion for summary judgment and argues, generally, that genuine issues of material fact preclude summary judgment from entering.[2] She argues that she was disabled within the meaning of the CFEPA because she suffers from " chronic pain" as a result of her cervical compression/degenerative disc disease, as well as ongoing cardiac issues, including high blood pressure or hypertension. The plaintiff asserts that her dismissal was based on absences related to these disabilities. In the view of the plaintiff, apart from her absences, she was otherwise able to perform the essential functions of her employment, in part, because medical leave is a reasonable accommodation. The plaintiff argues that the defendant failed to provide her with a reasonable accommodation after she requested one and that the defendant retaliated against her for making the request.[3]

         On January 22, 2016, the defendant filed its reply, where it reasserts its position that none of the disabilities alleged in the complaint were physical disabilities as defined under the CFEPA. Furthermore, the defendant objects to the plaintiff's reliance on " high blood pressure" or " hypertension" and " chronic pain" as claimed physical disabilities because these were not alleged in the complaint. Finally, and on the same grounds, the defendant argues that the plaintiff cannot assert a retaliation claim because this was also not alleged in the complaint.

         II

         STANDARD

         " 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." Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). See Practice Book § 17-49. " [S]ummary 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014). " Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014).

         III

         ANALYSIS

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