United States District Court, D. Connecticut
SECOND CORRECTED ORDER
R. Underhill United States District Judge
se plaintiff, Kara Hewett, brought this claim alleging
that defendant, Triple Point Technology, Inc.
("TPT"), violated the Family and Medical Leave Act
("FMLA"), 29 U.S.C. §§ 2601, et
seq., by (1) interfering with her ability to obtain
leave under the FMLA and (2) retaliating against her for
requesting or appearing to need FMLA leave. (doc. 1) On
February 14, 2014, I granted TPT‘s motion to dismiss
Hewett‘s initial complaint with respect to the
interference claim because Hewett had failed to allege that
she had given notice to TPT of her need for leave, and I
denied TPT‘s motion to dismiss with respect to the
retaliation claim due to the timing of Hewett‘s
termination. (doc. 59)
filed a second amended complaint on February 17, 2014. (doc.
64). The parties engaged in a contentious discovery process,
which concluded on June 15, 2015. (doc. 228) TPT filed the
instant motion for summary judgment on July 15, 2015. (doc.
following reasons, TPT‘s motion for summary judgment is
granted. Hewett has failed to state a cognizable claim for
FMLA interference, and she has failed to produce sufficient
evidence that TPT‘s non-discriminatory reason for her
termination was a pretext and the real reason was to
retaliate against her for requesting FMLA leave.
Standard of Review
Motion for Summary Judgment
judgment is appropriate when the record demonstrates that
"there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
ruling on a motion for summary judgment, the court must
construe the facts of the case in the light most favorable to
the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970). Further, the court must resolve all
ambiguities and draw all reasonable inferences against the
moving party. Aldrich v. Randolph Cent. Sch. Dist.,
963 F.2d. 520, 523 (2d Cir. 1992), cert. denied 506
U.S. 965 (1992); see also Ramseur v. Chase Manhattan
Bank, 865 F.2d 460, 465 (2d Cir. 1989) (quoting
Schwabenbauer v. Board of Ed., 667 F.2d 305, 313 (2d
motion for summary judgment is properly supported by
documentary and testimonial evidence, the nonmoving party may
not rest on the allegations or denials of her pleadings alone
and must present sufficient probative evidence to establish a
genuine issue of material fact. Anderson, 477 U.S.
at 256l; Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
1995); Bryant v. Maffucci, 923 F.2d 979, 982 (2d
Cir. 1991) ("Only when reasonable minds could not differ
as to the import of the evidence is summary judgment
proper."); see also Suburban Propane v. Proctor Gas,
Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving
party submits evidence that is "merely colorable, "
or is not "significantly probative, " summary
judgment may be granted. Anderson, 477 U.S. at
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a "genuine"
issue of material fact, there must be contradictory evidence
"such that a reasonable jury could return a verdict for
the non-moving party." Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case for which he has the burden of
proof at trial, then summary judgment is appropriate.
Celotex, 477 U.S. at 322. In such a situation,
"there can be 'no genuine issue as to any material
fact, ‘ since a complete failure of proof concerning an
essential element of the nonmoving party‘s case
necessarily renders all other facts immaterial."
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant‘s burden satisfied if he can point to an
absence of evidence to support an essential element of
nonmoving party‘s claim). In short, if there is no
genuine issue of material fact, summary judgment may enter.
Celotex, 477 U.S. at 323.
became a full-time at-will employee at TPT on July 11, 2011,
and TPT terminated her employment on September 20, 2013.
Hewett‘s Health Concerns
suffers from ongoing severe asthma, asthmatic bronchitis, and
hypogammaglobulinemia, an auto-immune disorder that often
leads to "frequent and recurrent sinus and lung
infections." Am. Compl. 5 (doc. 64); Mark E. Rose &
David M. Lang, "Evaluating and managing
hypogammaglobulinemia, " 73 Cleveland Clinic J.
Med. 133 (2006), available at
accessed March 21, 2016).
asthma also requires use of a nebulizer to administer
medication several times a day. Hewett Tr. at 81-88. She
often traveled home during the workday to administer that
medication. Id. at 85-86. Hewett‘s email
correspondence with TPT‘s human resources department
indicates that on August 13, 2013, her supervisor, Carlos
Lebrija expressed concern over late arrivals to work and
overlong lunch breaks. 2d Am. Compl., Ex. 2 at 31 (also produced
as Lehn Aff., Ex. C). Hewett countered that such trips were
necessary for her to travel from her office to her home to
administer her asthma treatments. Id. Hewett
accordingly offered to track her time in accordance with the
ADA or the FMLA. Id. Hewett then met with Lindsey
Lehn, Human Resource Manager for TPT, on or around August 16,
2013 to discuss the problem. Id. at 32. TPT
accommodated Hewett‘s needs by making space available
at her workplace to allow Hewett to administer her asthma
medication there. Id. TPT further requested that she
notify human resources whether the accommodation resolved her
concerns. Id. Hewett agreed that it did.
addition to her asthma treatments, Hewett states that she
experienced recurrent lung infections from June through
November 2012. Hewett Tr. at 153-54 (doc. 357-4). She states
that she experienced an additional lung infection in August
2013, and she suffered asthma attacks in addition to her lung
infection in August 2013. Id. Hewett took sick leave
for that infection on August 19 and 20. Lehn Aff., Ex. B
(time report of Hewett‘s sick leave). She experienced
another lung infection in mid-September, for which she took
leave on September 16 and 18, 2013. Id.; see
also Hewett Tr. at 246. TPT‘s Human Resources
department instructed Hewett to count these days as 1.5 days
of sick leave. 2d Am. Compl., Ex. 4, at 34. Although Hewett
offered at various points to have her absences booked as FMLA
leave, pursuant to TPT policy, two employees in the HR
department informed Hewett that she was first required to
exhaust her paid sick leave. Hewett Tr., Ex. I; Lehn Aff.
¶ 12 and Ex. A (TPT Sick Leave Policy); Lamp Aff. ¶
4. Hewett also asserts that she was not provided with an FMLA
Eligibility notice at any point. Hewett Aff. at 6 (First
Amended Local Rule 56(a)(2) response, doc. 377).
total, as a result of her condition, Hewett states that she
had "absences" for a visit to a health care
provider on the following dates: in 2012, on January 26,
February 17, March 8, June 6, 19 and 25, July 2, 12, 16, 17,
August 21 and 27, September 6, 11, 14, and 24; and in 2013,
on May 1 and 6, August 8, September 16, 18, 23, and 25, and
October 2. Pl.‘s Opp‘n Mem., App‘x. A (doc.
378, p. 106). TPT asserts that Hewett used only six of her
eight available sick days in 2012, and only six of her eight
available sick days in 2013. Lehn. Aff., Ex. B (doc. 357-10,
has not produced any evidence that she requested medical
leave for a period of three or more days, which would trigger
her FMLA rights under TPT‘s policy, or any evidence
that she requested medical leave for a period longer than her
existing paid sick and vacation days. She has also failed to
produce any evidence that any of her requests were denied.
Hewett‘s Performance at TPT
was a salaried employee at TPT. Lehn Aff. at ¶ 6. Her
starting salary was $130, 000 per annum. Id. In
2012, she was paid a salary of $132, 000 per annum.
Id. In 2013, she received a salary of $136, 000 per
annum. Id. Hewett also received a bonus of $2, 500
in 2012, and $5, 000 in 2013. Id. at ¶ 7.
supervisor, Carlos Lebrija, stated that he had received
numerous complaints from other TPT employees regarding
Hewett‘s performance. Lebrija Aff. at ¶ 11. The
parties dispute whether Lebrija had previously spoken with
Hewett about her poor performance, but emails attached to his
affidavit indicate that employees complained about
Hewett‘s performance on July 13, 2013 (email from Eva
Beshlian to Lebrija, stating that Hewett "doesn‘t
get anything"); and July 25, 2013 (email from Beshlian
to Lebrija, stating that Hewett was "exhausting";
email chain including Lebrija indicating that Hewett did not
understand her assignment).
August 2, 2013, in response to his supervisor‘s request
for employee assessments, Lebrija ranked Hewett as having a
"Low" performance ranking and a low
"Criticality" ranking, indicating that she was
"well-integrated in the organization, although
replaceable with limited disruption." Lebrija Aff., Ex.
August 14, 2013, Brian Seidman forwarded to Lebrija an email
discussion with Hewett indicating that "[s]he has not
been able to replicate the first test case properly." On
August 16, 2013, Seidman and Hewett had an email exchange,
copying Lebrija, in which Seidman ...