United States District Court, D. Connecticut
RULING RE: DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (DOC. NO. 38)
C. Hall United States District Judge
Gary Clark (“Clark”), a former employee of
defendant Stop & Shop Supermarket Co. (“Stop &
Shop”), initiated this lawsuit on March 2, 2015,
seeking damages for Stop & Shop’s alleged
violations of state and federal law. See Compl.
(Doc. No. 1). Specifically, Clark alleges that Stop &
Shop discriminated against him, retaliated against him, and
ultimately terminated him because of his disabling mental
health conditions. See id. Clark’s Complaint
charges: (1) disability discrimination in violation of
section 46a-60(a)(1) of the Connecticut General Statutes and
the federal Americans with Disabilities Act
(“ADA”), see 42 U.S.C. 12101 et
seq.; (2) negligent misrepresentation; (3) retaliation
in violation of the federal Family Medical Leave Act
(“FMLA”), see 29 U.S.C. 2612 et
seq.; and (4) interference with leave in violation of
the FMLA, see Compl. at 7-9 (Doc. No. 1). Stop &
Shop answered Clark’s Complaint, denied the
allegations, and presented various affirmative defenses.
See Def.’s Answer and Affirmative Defenses
(“Answer”) (Doc. No. 15).
pending before the court is Stop & Shop’s Motion
for Summary Judgment. See Def.’s Mot. for
Summ. J. (“MFSJ”) (Doc. No. 38). Clark opposed
Stop & Shop’s Motion, see Pl.’s
Objection to Def.’s Mot. for Summ. J.
(“Pl.’s Opp.”) (Doc. No. 43), to which Stop
& Shop timely replied, see Reply Mem. of Law in
Supp. of Mot. for Summ. J. (“Def.’s Reply”)
(Doc. No. 44).
careful review of the submissions of the parties, and for the
reasons that follow, the court now GRANTS IN PART and DENIES
IN PART Stop & Shop’s Motion for Summary Judgment
(Doc. No. 38).
& Shop hired Clark as a full-time produce clerk in
December 2008. See Report of Parties’ Rule
26(f) Planning Meeting (“Rule 26(f) Report”) at 4
(Doc. No. 16). Clark was originally hired to work at a Stop
& Shop location in Stamford, Connecticut. See
Def.’s Local Rule 56(a)1 Statement (“Def.’s
L.R. 56(a)1 Stmt.”) at 1 ¶ 3 (Doc. No. 40). Clark
was promoted to the position of assistant produce manager in
April 2010, and he was transferred to a Stop & Shop store
in Darien, Connecticut in March 2011. See Rule 26(f)
Report at 4 (Doc. No. 16). As an assistant produce manager,
Clark worked mostly day shifts, but was required to work one
night shift per week. See Def.’s L.R. 56(a)1
Stmt. at 2 ¶ 8 (Doc. No. 40).
2012, Clark decided to return to being a full-time produce
clerk, and he was transferred back to Stamford. See
Def.’s L.R. 56(a)1 at 2 ¶ 13 (Doc. No. 40). Clark
was upset with this transfer, because he believed that the
store manager in Darien had promised him that he would be
transferred to a Stop & Shop location closer to his home
if he stepped down from the assistant manager position.
See Pl.’s Local Rule 56(a)2 Statement
(“Pl.’s L.R. 56(a)2 Stmt.”) at 2 ¶ 11,
4 ¶ 15 (Doc. No. 43-1). Clark had moved from Bridgeport
to Ansonia at some point after he started working for Stop
& Shop but before he was transferred back to Stamford.
See id. at 2 ¶ 5. Clark moved to Ansonia to
live with, and provide assistance to, his disabled mother
after his stepfather died in 2009. See id.
arriving in Stamford, Clark informed the produce manager for
whom he would be working, Abdul Bangi (“Bangi”),
that he suffered from, and took medicine for, anxiety.
See Def.’s L.R. 56(a)1 Stmt. at 3 ¶ 16
(Doc. No. 40). Bangi was responsible for scheduling Clark,
and he consistently scheduled him to work all
“night” shifts (i.e., shifts between
3:00 PM and 12:00 PM). See id. at 3 ¶¶
17-20. Clark was generally scheduled to work from 1:30 PM to
10:00 PM. See id. at 3 ¶ 18. Clark regularly
asked Bangi to stop scheduling him exclusively for night
shifts; Bangi told Clark to speak with store manager Robert
Silver (“Silver”) or human resources. See
id. at 4 ¶ 22; Pl.’s L.R. 56(a)2 Stmt. at 5
¶ 22 (Doc. No. 43-1).
February 2013, Clark’s doctor, Lazaro Pomeraniec
(“Dr. Pomeraniec”), faxed a note to the Stamford
Stop & Shop indicating that Clark could not work night
shifts due to illness. See Def.’s L.R. 56(a)1
Stmt. at 4 ¶ 25 (Doc. No. 40). The illnesses in question
are psychiatric in nature, as Clark has suffered from, and
received treatment for, panic attacks, agoraphobia, and
anxiety disorder throughout his adult life. See
Compl. at 2 ¶¶ 8-9 (Doc. No. 1); see also
Attending Physician’s Statement of Disability (Doc. No.
43-4). After receiving this note, Stop & Shop, through
human resources manager Julie Pinard (“Pinard”),
scheduled a meeting with Clark and union representative Jason
Dokla (“Dokla”). See Def.’s L.R.
56(a)1 Stmt. at 4 ¶ 28 (Doc. No. 40). Clark and Pinard
disagree about what happened in that meeting, compare
id. at 4 ¶ 29 - 5 ¶ 38, with
Pl.’s L.R. 56(a)2 Stmt. at 6 ¶ 29 - 7 ¶ 38
(Doc. No. 43-1), but the end result was that Clark requested
FMLA leave in March 2013, see Def.’s L.R.
56(a)1 Stmt. at 5 ¶ 40 (Doc. No. 40). Clark’s FMLA
statement represented that he had a serious health condition
that rendered him unable to work; he expected to return six
months later, in September 2013. See id. at 6 ¶
41. Clark’s leave was approved by Stop & Shop.
See id. at 6 ¶ 43. During the course of
Clark’s FMLA leave, Dr. Pomeraniec provided additional
notes to Stop & Shop that stated that Clark could return
to work if he was scheduled to work days instead of nights.
See Note from Lazaro N. Pomeraniec, M.D. (“Dr.
Pomeraniec Note #1”) (Doc. No. 43-9).
August 2013, Dr. Pomeraniec faxed Stop & Shop a note
indicating that Clark could return to work in September 2013,
so long as he was scheduled to work no more than one night
shift per week and was transferred to a Stop & Shop
location closer to his home. See Def.’s L.R.
56(a)1 Stmt. at 6 ¶ 44 (Doc. No. 40). Stop & Shop
offered to transfer Clark to Norwalk, which was slightly
closer to his home than Stamford was, but informed Clark that
he would remain assigned to night shifts. See id. at
7 ¶ 48. On the day that Clark was scheduled to return to
work, Dr. Pomeraniec faxed Stop & Shop another note that
stated that Clark had not come back to work because his
disabilities were not being accommodated. See id. at
7 ¶ 50. Stop & Shop called Clark to request
additional information, including how late he could work, how
far from his home he could work, and whether the restrictions
were temporary or permanent. See id. at 7 ¶ 51.
Over the next several months, Dr. Pomeraniec sent additional,
clarifying notes to Stop & Shop in response to Stop &
Shop’s repeated requests for more information. See
id. at 7 ¶ 53 (September 30, 2013), 8 ¶ 62
(November 13, 2013). Clark did not return to work during
these discussions. See id. at 9 ¶ 67. Clark
believed that Stop & Shop terminated his employment in
November 2013, although he did not receive a formal, written
termination notice at that time. See id. at 9 ¶
& Shop next contacted Clark in May 2014, which was more
than a month after he had filed complaints regarding his
treatment by Stop & Shop with the Equal Employment
Opportunity Commission (“EEOC”) and the
Connecticut Commission on Human Rights and Opportunities
(“CHRO”). See id. at 10 ¶ 74; 12
¶ 92. Clark did not respond to Stop & Shop’s
communications in the late spring and early summer of 2014,
and Stop & Shop notified Clark, in writing, that he was
terminated effective June 30, 2014. See id. at 11
STANDARD OF REVIEW
motion for summary judgment, the burden is on the moving
party to establish that there are no genuine issues of
material fact in dispute and that it is entitled to judgment
as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); White v. ABCO
Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000).
Once the moving party has met its burden, in order to defeat
the motion, the nonmoving party must “set forth
specific facts showing that there is a genuine issue for
trial, ” Anderson, 477 U.S. at 256, and
present such evidence as would allow a jury to find in his
favor, see Graham v. Long Island R.R., 230 F.3d 34,
38 (2d Cir. 2000).
assessing the record to address whether there are material
issues of fact, the trial court must draw all inferences in
favor of the party against whom summary judgment is sought.
See Anderson, 477 U.S. at 255; Graham, 230
F.3d at 38. Summary judgment “is properly granted only
when no rational finder of fact could find in favor of the
non-moving party.” Carlton v. Mystic Transp.,
Inc., 202 F.3d 129, 134 (2d Cir. 2000). “When
reasonable persons, applying the proper legal standards,
could differ in their responses to the question”
raised, on the basis of the evidence presented, the question
must be left to the finder of fact. Sologub v. City of
New York, 202 F.3d 175, 178 (2d Cir. 2000).
& Shop argues that it is entitled to judgment as a matter
of law on each of the counts set forth in Clark’s
Complaint. The court will consider Stop & Shop’s
arguments with respect to each of the counts separately and
Count One: Disability Discrimination and Failure to
first count of Clark’s Complaint alleges that Stop
& Shop violated the Connecticut Fair Employment Practices
Act (“CFEPA”) and the ADA when Stop & Shop
failed to accommodate Clark’s disabilities and
terminated his employment because of his disabilities.
See Compl. at 7 (Doc. No. 1). Stop & Shop
contends it is entitled to summary judgment on this claim
because (1) Clark was not disabled within the meaning of the
ADA; (2) Clark cannot show that Stop & Shop failed to
accommodate his alleged disabilities; and (3) Clark cannot
show that his termination was due to his alleged
disabilities. See Mem. of Law in Supp. of Mot. for
Summ. J. (“Def.’s MFSJ Mem.”) at 11-27
(Doc. No. 39). For the reasons that follow, the court
concludes that there are genuine issues of material fact
relevant to the resolution of each of the points raised by
Stop & Shop. Thus, Stop & Shop is not entitled to
judgment as a matter of law on this claim.
state and federal claims that an individual has been the
victim of discrimination on the basis of a disability are
analyzed under the familiar burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). See McMillan v. City of New
York, 711 F.3d 120, 125 (2d Cir. 2013); Feliciano v.
Autozone, Inc., 316 Conn. 65, 73-74 (2015) (“We
look to federal law for guidance on interpreting state
employment discrimination law, and the analysis is the same
under both.”). Under this framework, “[a] plaintiff
must establish a prima facie case; the employer must offer
through the introduction of admissible evidence a legitimate
non-discriminatory reason for the discharge; and the
plaintiff must then produce evidence and carry the burden of
persuasion that the proffered reason is a pretext.”
Sista v. CDC Ixis North America, Inc., 445 F.3d 161,
169 (2d Cir. 2006).
a prima facie case of discriminatory discharge under
the ADA requires a plaintiff to show, by a preponderance of
the available evidence, that: “(1) his employer is
subject to the ADA; (2) he was disabled within the meaning of
the ADA; (3) he was otherwise qualified to perform the
essential functions of his job, with or without reasonable
accommodation; and (4) he suffered adverse employment action
because of his disability.” McMillan, 711 F.3d
at 125 (internal quotations and citation omitted). Similarly,
a viable failure to accommodate claim requires a plaintiff to
demonstrate that: “(1) plaintiff is a person with a
disability under the meaning of the ADA; (2) an employer
covered by the statute had notice of his disability; (3) with
reasonable accommodation, plaintiff could perform the
essential functions of the job at issue; and (4) the employer
has refused to make such accommodations.” Id.
at 125-26 (internal quotations and citation omitted).
& Shop does not contend that it is not subject to the
ADA, that it lacked notice of Clark’s disabilities, or
that Clark was not qualified to perform his job. Stop &
Shop does, however, dispute that there are genuine issues of
material fact on the remaining elements of Clark’s
discriminatory discharge and failure to accommodate claims.
See Def.’s MFSJ Mem. at 11-27 ...