United States District Court, D. Connecticut
RULING RE: DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (DOC. NO. 77)
C. Hall United States District Judge.
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.
reasons that follow, the City's Motion for Summary
Judgment (“Mot. for Sum. J.”) (Doc. No. 77) is
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.
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.
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.
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.
City initially suspended Koenig for at least two weeks in
April 2014. See Def.'s Mem. at 3; Fourth
Am. Compl. at 9.
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.
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.
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.
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 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).
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).
One and Two allege ADA violations, which the court construes
as a claim for discrimination and for
retaliation. 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).
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
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).
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 ...