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Hewett v. Triple Point Technology, Inc.

United States District Court, D. Connecticut

June 2, 2016



          Stefan R. Underhill United States District Judge

         Pro 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)

         Hewett 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. 338)

         For the 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.

         I. Standard of Review

         A. Motion for Summary Judgment

         Summary 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." Fed.R.Civ.P. 56(a).

         When 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 Cir. 1981)).

         When a 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 249-50.

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.

         If the 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.

         II. Background

         Hewett became a full-time at-will employee at TPT on July 11, 2011, and TPT terminated her employment on September 20, 2013.

         A. Hewett‘s Health Concerns

         Hewett 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 (last accessed March 21, 2016).

         Her 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.[1] 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. Id.

         In 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).

         In 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, pp. 9-11).

         Hewett 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.

         B. Hewett‘s Performance at TPT

         Hewett 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.

         Hewett‘s 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).

         On 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. B.

         On 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 ...

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