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Koenig v. City of New Haven

United States District Court, D. Connecticut

November 10, 2016

JASON KOENIG, Plaintiff,
v.
CITY OF NEW HAVEN, Defendant.

          RULING RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 77)

          Janet C. Hall United States District Judge.

         I. INTRODUCTION

         The plaintiff, Sgt. Jason Koenig (“Koenig”), has brought this action against the defendant, the City of New Haven (“the City”), alleging disability discrimination in violation of the Americans with Disabilities Act of 1990 (“ADA”), the Rehabilitation Act of 1973, and the Connecticut Fair Employment Practices Act (“CFEPA”). See Fourth Amended Complaint (Doc. No. 59) (“Fourth Am. Compl.”) at 1. The City has moved for summary judgment, arguing that Koenig cannot show an adverse employment action due to his alleged disability.

         For the reasons that follow, the City's Motion for Summary Judgment (“Mot. for Sum. J.”) (Doc. No. 77) is GRANTED.

         II. FACTUAL BACKGROUND[1]

         Koenig works for the City's Department of Police Service. See Defendant's Memorandum (“Def.'s Mem.”) (Doc. No. 77-1) at 2; Fourth Amended Complaint (“Fourth Am. Comp.”) (Doc. No. 59) at 1. Koenig has previously claimed that he suffered several injuries in the line of duty, including a head-on automobile collision, which caused him to require medical treatment. See November 2012 Connecticut Commission on Human Rights and Opportunities (“CHRO”) Affidavit of Illegal Discriminatory Practice (“2012 Koenig CHRO Aff.”) (Doc. No. 63-2) ¶¶ 7-10.

         Koenig has previously claimed that, upon returning from medical leave in May 2012, he learned that his supervisors were going to intentionally create situations to set him up to receive discipline. According to Koenig, on May 25, 2012, the City gave Koenig an Independent Medical Examination. Koenig has previously claimed that, on June 18, 2012, New Haven Police Chief Dean Esserman (“Esserman”) held a “counseling session” for Koenig, which was a form of discipline. Koenig claimed that, in front of several Deputy Chiefs and ranking officers, Esserman said that Koenig had “the worst record” that Esserman had ever seen and commented on Koenig's confidential health information. Koenig claimed that he had not done anything wrong to deserve this disciplinary session, other than being disabled. In approximately November 2012, Koenig submitted a disability discrimination and retaliation complaint to the CHRO, based on the above-mentioned events. See id.

         The City later carried out an internal investigation regarding Koenig. See Defendant's Local Rule 56(a)(1) Statement ("Def.'s 56(a)(1)”) (Doc. No. 78) ¶ 1; Fourth Am. Compl. at 8. The City asserts that the investigation was into a comment of a sexual and racial nature that Koenig allegedly made on June 20, 2013. See Def.'s 56(a)(1) ¶¶ 1, 4. The City supports this assertion with a copy of the Investigation Report describing an alleged comment of a sexual and racial nature and containing summaries of interviews about the alleged comment. See Investigation Report (“Investigation Rep.”) (in Doc. No. 77-3 at 5-9). Koenig denies the City's assertion, citing the City's transcript of its interview with him. See Pl.'s 56(a)(2) ¶¶ 1, 4. There is nothing in this interview transcript, however, from which a reasonable juror could conclude that the investigation was into anything other than a comment of a sexual and racial nature that Koenig allegedly made on June 20, 2013. In fact, the very interview transcript that Koenig cites includes a quote attributed to Detective Wilfredo Cruz (“Cruz”) stating that Koenig was “here today to answer questions . . . regarding an insensitive comment [he] made [ ] on about June 20th during the morning hours while [he was] working [at] the front desk [ ] as a sergeant.” See Koenig Interview Transcript (“Koenig Tr.”) (in Doc. No. 77-8 at 3- 11) at 6. Further, in the same interview transcript there is a quote attributed to Koenig stating an allegation Koenig has heard against himself concerning a comment of a sexual and racial nature. See id. at 8. The City asserts that, based on the investigation, Koenig was found to have violated police department rules. See Def.'s 56(a)(1) ¶ 1. The City supports this assertion with the Investigation Report, which repeats the language of two police department rules and states that Koenig was found to have violated the rules. See Investigation Rep. at 9. Koenig denies the City's assertion, citing the City's transcript of its interview with him. See Pl.'s 56(a)(2) ¶¶ 1. There is nothing in the interview transcript, however, from which a reasonable juror could conclude that the City did not find Koenig to have violated police department rules. See Koenig Tr.

         In September 2013, Koenig took and passed an examination for eligibility to become a lieutenant. See February 2015 CHRO Affidavit of Illegal Discriminatory Practice (“2015 Koenig CHRO Aff.”) (Doc. No. 63-3) ¶ 16. Koenig did not receive a promotion to Lieutenant, however. See id. ¶ 23. Koenig has claimed that he was ranked eighteen out of the officers who passed the examination. See id. ¶ 16. Koenig claimed that the City initially interviewed candidates ranked one through seventeen, stopping right before Koenig. See id. ¶ 17. Koenig claimed that the City then promoted candidates one through twelve. See id. ¶ 18. Koenig claimed that, on a second round of interviews, the City again stopped interviewing at candidate number seventeen, right before Koenig. See id. ¶ 20.

         The City initially suspended Koenig for at least two weeks in April 2014.[2] See Def.'s Mem. at 3; Fourth Am. Compl. at 9.

         On December 5, 2014, Koenig was the sixth remaining candidate on the ranked list of officers who had passed the lieutenant's examination but had not yet been promoted. See 2015 Koenig CHRO Aff. ¶ 21. The City had six open positions at this time, but chose to fill only four of its remaining positions. See id. ¶ 23. Koenig thus did not receive a promotion. See id. ¶ 23.

         Koenig filed a grievance based on his suspension. See Def.'s Mem. at 3; Fourth Am. Compl. at 9. The City asserts that Koenig's suspension was ultimately reduced to five days. See Def.'s 56(a)(1) ¶ 7. The City supports this assertion with a copy of a settlement agreement stating that Koenig's suspension was reduced to five days. See Settlement Agreement (in Doc. No. 77-2 at 3). Koenig denies the assertion, citing the City's transcript of its interview with him. See Pl.'s 56(a)(2) ¶¶ 7. However, there is nothing in the interview transcript-which is dated about two years before the settlement agreement-from which a reasonable juror could conclude that Koenig's suspension was not reduced to five days. See Koenig Tr.

         In approximately February 2015, Koenig submitted a second disability discrimination and retaliation complaint to the CHRO, this one discussing the City's failure to promote him. See 2015 Koenig CHRO Aff.[3]

         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 the party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016). 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 255, and present such evidence as would allow a jury to find in its favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). “An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v. Collective, Inc., No. 15-782, 2016 WL 6575071, at *3 (2d Cir. Nov. 7, 2016).

         In assessing the record to determine whether there are disputed issues of material fact, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Anderson, 477 U.S. at 255; Wright, 831 F.3d at 71-72. “Where it is clear that no rational finder of fact could find in favor of the nonmoving party because the evidence to support its case is so slight, summary judgment should be granted.” Sahu v. Union Carbide Corp., 650 F. App'x 53, 56 (2d Cir. 2016) (quoting F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)) (internal quotation marks omitted). On the other hand, where “reasonable minds could differ as to the import of the evidence in the record, ” the question must be left to the finder of fact. Cortes v. MTA N.Y. City Transit, 802 F.3d 226, 230 (2d Cir. 2015) (internal quotation marks and ellipses omitted).

         IV. DISCUSSION

         A. Koenig's Claims

         Counts One and Two allege ADA violations, which the court construes as a claim for discrimination and for retaliation.[4] See Fourth Am. Compl. at 10. With regard to discrimination, the ADA states that, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to . . . employee compensation . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To state a prima facie case of ADA discrimination, Koenig must present evidence from which a reasonable jury could find 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.” Forrester v. Prison Health Servs., Inc., 651 F. App'x 27, 28 (2d Cir. 2016) (internal quotation marks omitted); McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (internal quotation marks omitted). ADA disability discrimination claims are subject to the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973) burden-shifting analysis. See Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016); McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). Once a plaintiff has established a prima facie case, the employer “must offer through the introduction of admissible evidence a legitimate non-discriminatory reason for the [adverse action]; and the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext.” Id. at 96 (internal quotation marks omitted).

         With regard to retaliation, the ADA states that, “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by” the ADA. 42 U.S.C. § 12203(a). To state a prima facie case of ADA retaliation, Koenig “must show that: (1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002); Pediford-Aziz v. City of N.Y., 170 F.Supp.3d 480, 485 (E.D.N.Y. 2016). “The McDonnell Douglas burden shifting analysis also applies to retaliation claims brought pursuant to the ADA.” Rios v. Dep't of Educ., 351 F. App'x 503, 505 (2d Cir. 2009) (citing Treglia, 313 F.3d at 719).

         Count Three alleges that the City discriminated against Koenig in violation of the Rehabilitation Act. See Fourth Am. Compl. at 11. The Rehabilitation Act states that, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). “To establish a prima facie case of employment discrimination under the Rehabilitation Act, a plaintiff must prove that: (1) he is an ‘individual with a disability, ' (2) he was ‘otherwise qualified' for [his] position, (3) he [suffered an adverse employment action] on the basis of his disability, and (4) the employer receives federal funds.” D'Amico v. City of New York, 132 F.3d 145, 150 (2d Cir. 1998); see also Gardner v. Univ. of Connecticut Health Ctr., No. 3:12-CV-01168- GWC, 2016 WL 4582039, at *3 (D. Conn. Sept. 1, 2016). The McDonnell Douglas burden shifting analysis applies to Rehabilitation Act employment discrimination claims where the employer maintains that its actions were unrelated to disability. See Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 514 (2d Cir. 1991). “Unless one of [the] subtle distinctions” that exist between the ADA and the Rehabilitation Act “is pertinent to a particular case, we treat claims under the two statutes identically.” Henrietta D v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).

         Koenig also claims, in Count Four, that the City violated CFEPA. See Fourth Am. Compl. at 12. CFEPA states that, “[i]t shall be a discriminatory practice in violation of this section[ f]or an employer . . . to discriminate against [any] individual in compensation or in terms, conditions or privileges of employment because of the individual's . . . physical disability.” Conn. Gen. Stat. § 46a-60(a)(1). To state a prima facie case of CFEPA disability discrimination, Koenig must show that “(1) he suffers from a disability or handicap . . .; (2) he was nevertheless able to perform the essential functions of his job, either with or without reasonable accommodation; and that (3) the defendant took an adverse employment action against him because of, in whole or in part, his protected disability.” Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 426 (2008) (brackets ...


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