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Blackett v. Whole Foods Market Group, Inc.

United States District Court, D. Connecticut

March 27, 2017



          Jeffrey Alker Meyer, United States District Judge

         Plaintiff David Blackett worked in the seafood department for defendant Whole Foods Market Group, Inc. (Whole Foods) at one of its stores in Greenwich, Connecticut. Plaintiff suffered two injuries that led to his taking three separate medical leaves of absence. Defendant declined to give plaintiff his job back or to re-hire him for another position.

         Plaintiff has now brought suit alleging claims of discrimination, interference, and retaliation under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Connecticut Fair Employment Practices Act (CFEPA), and a Connecticut law that prohibits workers' compensation retaliation. Defendant moves for summary judgment on all these claims. I will grant the motion in part and deny the motion in part.


         The following facts are either agreed upon by both parties or presented in the light most favorable to plaintiff as the non-moving party. Defendant hired plaintiff in July 2011 as a team member in the seafood department. In a matter of months, plaintiff was promoted to assistant seafood team leader; he worked in that role at the Chelsea store from January 2012 to May 2012, and then at the Greenwich store from May 2012 to the date of his separation in November 2013.

         On September 6, 2012, plaintiff received an unsatisfactory work warning from his supervisor, Abraham Iglesias, the seafood team leader. Doc. #60-1 at 90. Within a month, plaintiff had drastically improved, prompting Iglesias to send a glowing e-mail to store leadership indicating plaintiff's significant strides, even if improvement was still needed in “store ops.” Doc. #68-13 at 2.

         On September 11, 2012, plaintiff slipped and fell in defendant's parking lot, and injured his shoulder, which required rotator cuff surgery. Docs. #68-2 at 2 ¶ 3; #68-14 at 2. He took a leave of absence from November 27, 2012 to January 29, 2013. Defendant later classified this leave as FMLA leave, although plaintiff's employment records do not indicate that this leave was FMLA-classified. Doc. #60-1 at 99. Plaintiff never filled out the required FMLA form for this absence, and defendant did not notify him in writing that this leave would be designated as FMLA leave, contrary to the dictate of its employee manual, id. at 12, as well as the FMLA. See 29 C.F.R. § 825.300(d)(1).

         Plaintiff received workers' compensation during this leave of absence. Doc. #60-1 at 50. After his surgery, plaintiff e-mailed the Whole Foods team to update them on his recovery, and the store team leader, Pat Mulrooney, replied on November 29, 2012: “Thanks for reaching out. Sorry to hear about the Pain!!!!! . . . Hang in there and keep us posted on your recovery!!!” Doc. #68-39 at 6. When plaintiff determined that he could return to work on January 29, 2013, with some very limiting restrictions-no lifting greater than five pounds in the left hand, no lifting the left hand over his shoulder, and no repetitive work with the left hand-he notified his supervisors, who immediately accommodated him with light work. Plaintiff's light work involved back-of-the-house office tasks, auditing the tags throughout the store, and other small tasks that required the use of only one arm. This arrangement was memorialized in a Transitional Duty Return to Work Agreement, which provided for a “temporary position[ ] designed to assist the team [m]ember back to his/her regular job.” Doc. #60-1 at 95.

         Despite this seemingly warm welcome back in January, plaintiff also perceived some negative attitudes towards him upon his return, including when Iglesias told him “Nice vacation. I hope you enjoyed your time off.” Doc. #68-6 at 34. After two to three weeks of back-office work, plaintiff was called to the store team leader's office with Iglesias, and was told that there was not enough light work for him to do. Doc. #60-1 at 40. Plaintiff was asked to take another leave of absence, which would again be covered by workers' compensation, beginning on February 19, 2013. Plaintiff acquiesced, consistent with a prior e-mail in which plaintiff expressed some willingness to wait to return to work until his doctor cleared him with fewer restrictions. See Doc. #68-39 at 2-4. For this second leave of absence, the requisite FMLA paperwork appears to have been filled out at least on defendant's part (but not on plaintiff's-he never signed the form), indicating that plaintiff had taken FMLA leave in the prior 12 months. Doc. #60-1 at 97. Plaintiff's employment records reflect his leave as FMLA-classified.

         By the time plaintiff was to return from his second leave, both of his direct supervisors had (or would very soon) change: plaintiff's seafood team leader, Iglesias, had been replaced by Scott Place, and the store team leader, Pat Mulrooney, would be replaced within days by Bimini Hayes. On March 29, 2013, plaintiff e-mailed his new supervisors a medical certification clearing him to return to work with fewer restrictions than he had had after his first leave of absence. Unlike after his first leave, when plaintiff had described his arm as “pretty useless, ” Doc. #68-39 at 2, plaintiff stated that he was now able to do “pretty much anything . . . except maybe opening and closing wich requires heavy lifting. the Dr. anticipates full capacity by end of April.” Doc. #68-18 at 2.

         Plaintiff's new supervisors were less confident about his recovery. Place e-mailed Hayes (and others in the store) that he felt “apprehensive” about plaintiff's returning to the seafood department with physical restrictions, noting that he felt “strongly” that plaintiff should not come back until he had a 100% medical clearance. Doc. #68-19 at 2. Place quarreled with plaintiff's assertion that he could do “pretty much anything, ” pointing to two specific activities plaintiff would be unable to do-lifting cases and putting out the soup. Ibid. Place noted that the seafood schedule already suffered for lack of employees able to open and close the department, and he also wrote: “I think we are playing with fire if he comes back without a 100 % clearance . . . . Who is to say he is [not] going to lift something the wrong way then we are back to square one.” Ibid.

         Despite Place's concerns, Hayes decided to offer plaintiff a species of light duty work, as had Mulrooney after plaintiff's first leave; she had plaintiff take on several “administrative functions” as a shift leader for the entire store (not just the seafood department) upon his return on April 8, 2013. Docs. #68-3 at 9-11; #68-20 at 2 (describing this as a “Transitional Job Modification” to help accommodate his restrictions until he fully recovers). He reported directly to Hayes in this role, Doc. #60-1 at 32, and Hayes indicated that he did the job satisfactorily. Doc. #68-3 at 16. After two to three weeks of working as a shift leader, and even though plaintiff was still not cleared to perform full-duty work, he was to transition back to the seafood department, to be supervised for the first time by Place as the new seafood team leader.

         But before plaintiff's transition back to the seafood department, and although Place had not yet had any chance to supervise plaintiff, Place approached Hayes and indicated that he was concerned about plaintiff's performance, doubting whether plaintiff had even a basic understanding of what his job entailed. Id. As a result of this conversation, Hayes drafted a list of plaintiff's job expectations, Doc. #68-21 at 2, a type of document intended to assist struggling employees. Doc. #68-3 at 15. Hayes and Place presented this list of job expectations to plaintiff on April 22, 2013.

         The parties dispute whether this list shows increased responsibilities, Doc. #68-2 at 2 ¶4, whether any change in responsibilities was merely the byproduct of having a new supervisor, see Doc. #60-1 at 75-77, or whether different responsibilities corresponded with plaintiff's continued medical restrictions, see Doc. #68-21 at 2; see also Doc. #60-1 at 87 (internal job description). In any event, plaintiff struggled with these new tasks and, on or about May 13, 2013, Hayes and Place presented plaintiff with a “note to file, ” detailing the tasks listed on his “job expectations” list for which plaintiff needed improvement.[1] Plaintiff told Hayes that he struggled with some of the new tasks he had been given, such as using the purchase order systems, because he had not been properly trained to handle them. See Doc. #60-1 at 75-76. But when he asked Hayes for training, he was rebuffed and told that he would learn through his mistakes. Doc. #68-6 at 33.

         The “note to file” stated that plaintiff would not be issued a written warning if he had made a “marked improvement” in his performance within 30 days. Doc. #60-1 at 103. Within 17 days, however, plaintiff received a written warning for “continu[ing] to struggle with daily operations and with store Ops.” Id. at 105. This time, plaintiff was not given a time frame within which to improve, id. at 106, but he later learned that he should have improved within eight days, because he received a final warning on June 7, 2013, in which he had 30 days to improve or else risk termination. Id. at 108.

         He did not make it to 30 days. On June 18, 2013, he aggravated an old back injury while at home and, after informing Marlene Reyes, defendant's benefits coordinator for the Greenwich store, plaintiff began a leave of absence on June 20, 2013. Soon after he began his leave, he learned that he required intensive back surgery, and he e-mailed this information to Hayes, Place, and Reyes. Doc. #68-27 at 3. Reyes eventually sent him paperwork so that he could receive short-term disability payments, which he did. Doc. #68-28 at 2. And for the first time in his three medical leaves of absence, plaintiff was told, in writing, that this leave would be FMLA-classified, and he was sent the proper FMLA forms. Doc. #68-27 at 4. This leave was, again, not noted in plaintiff's employment records. See Doc. #60-1 at 99.

         The FMLA form that plaintiff received noted that he had taken FMLA leave in the prior 12 months, and that this current FMLA leave was to begin on June 20, 2013, and become exhausted by July 23, 2013. Doc. #68-25 at 2-3. After July 23, 2013, plaintiff's leave would then be classified under state law as CT FMLA leave, id. at 2, although the form did not indicate on exactly which date his CT FMLA would become exhausted (according to this calculation, or August 20, 2013).

         Plaintiff received this crucial FMLA form not before July 16, 2013, after he had already scheduled and completed back surgery which defendant knew would keep plaintiff out of work for at least six weeks, or until August 20, 2013. See Doc. #68-27 at 2-5. Put in context, plaintiff received his first ever notice of FMLA usage and rights one week before expiration of (what the form indicated was) all of his federal FMLA leave, and after he had already undergone surgery that would leave him unable to return to work until, at the earliest, exactly when his CT FMLA leave would expire. The form plaintiff received was not only the first notice plaintiff received about his FMLA rights, but, as will soon be discussed, it miscalculated his leave time, and it did not indicate that plaintiff would be taking extended medical non-occupational (EMN) leave.[2]

         On August 13 and 21, 2013, plaintiff sent defendant medical certifications from his physician, indicating that he could return to light-duty work by September 10, 2013, and full-duty work on October 1, 2013. Docs. #60-1 at 110-13; #68-29 at 2.[3] Reyes forwarded this doctor's note to John Flaim, the regional benefits coordinator, who then drafted a letter in response on August 21, 2013. Docs. #70-2 at 4; #68-10 at 25-26. The letter indicated that plaintiff had exhausted his state and federal FMLA leave, but that he would be moved to EMN leave for an additional two weeks, or until September 4, 2013. Doc. #68-30 at 2. The mandatory return date of September 4, 2013, would have been consistent with defendant's EMN policy of allowing two weeks beyond CT FMLA leave, and consistent with the erroneous calculation of plaintiff's FMLA leave from the form he received on or around July 16, 2013. See Doc. #68-25 at 2-3. Plaintiff was told that his same position ...

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