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Clark v. Stop & Shop Supermarket Co.

United States District Court, D. Connecticut

August 15, 2016

GARY CLARK, Plaintiff
v.
STOP & SHOP SUPERMARKET CO., Defendant.

          RULING RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 38)

          Janet C. Hall United States District Judge

         I. INTRODUCTION

         Plaintiff 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).

         Currently 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).

         After 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).

         II. FACTUAL BACKGROUND[1]

         Stop & 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).

         In June 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.

         After 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).

         In 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).

         In late 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 ¶ 69.

         Stop & 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 ¶ 87.

         III. STANDARD OF REVIEW

         On a 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).

         In 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).

         IV. DISCUSSION

         Stop & 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 in turn.

         A. Count One: Disability Discrimination and Failure to Accommodate

         The 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.

         Both 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.”).[2] 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).

         Establishing 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).

         Stop & 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 ...


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