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Thomson v. Department of Social Services

Court of Appeals of Connecticut

September 5, 2017

KIM THOMSON
v.
DEPARTMENT OF SOCIAL SERVICES

          Argued March 6, 2017

          James V. Sabatini, for the appellant (plaintiff).

          Matthew F. Larock, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Ann E. Lynch, assistant attorney general, for the appellee (defendant).

          Michael Roberts filed a brief for the Commission on Human Rights and Opportunities as amicus curiae.

          Sheldon, Beach and Flynn, Js.

         Syllabus

         The plaintiff employee commenced an action against her employer, the defendant Department of Social Services, alleging that the defendant had violated the Connecticut Fair Employment Practices Act (§ 46a-51 et seq.) by discriminating against the plaintiff on the basis of her disability as a result of the defendant's failure to provide her with a reasonable accommodation. The plaintiff suffered from a severe chronic disease that required her to periodically miss work. In January 2013, the plaintiff, who was not eligible for federal family and medical leave, provided G, one of the defendant's human resources representatives, with a medical certificate from her physician that indicated that the plaintiff would have to work on a reduced schedule, but the physician did not indicate a date when she could return to work full-time. Approximately one week later, the plaintiff left a note under G's door indicating that she would be taking a medical leave lasting more than thirty days, depending on her condition. The note listed the plaintiff's cell phone number and home address, and stated that she could be contacted regarding any questions. Thereafter, O, another human resources representative who replaced G, sent a certified letter to the address listed in the plaintiff's note, stating that she was ineligible for family and medical leave, that she had not provided the documents necessary to support a medical leave of absence, and that she was currently on unauthorized leave. The letter stated that O had called the plaintiff's cell phone and left a voice-mail message but that she had not received a response. The letter provided that the plaintiff's absence would be deemed a resignation not in good standing if she did not return to work or provide a medical certificate to support her leave by a certain date. After that date had passed, O sent the plaintiff a letter stating that she had ‘‘been resigned not in good standing'' because she had failed to return to work and failed to provide a completed medical certificate. The trial court thereafter granted the defendant's motion for summary judgment, concluding that the plaintiff failed to present evidence sufficient to support a prima facie case of discrimination because she had not provided evidence demonstrating that she was able to perform her job with or without a reasonable accommodation, or that the defendant did not reasonably accommodate her. From the summary judgment rendered thereon, the plaintiff appealed to this court, claiming that the trial court had improperly rendered summary judgment for the defendant because her request for leave was a reasonable accommodation that would have enabled her to perform the essential functions of her job. Held that the trial court properly determined that the plaintiff could not meet her burden of proving a prima facie case of disability discrimination because her request for leave was not a reasonable accommodation, as the plaintiff informed the defendant that she would be taking a leave of absence but did not provide the defendant with any time frame for her return and did not respond to the defendant's subsequent attempts to contact her regarding her request for leave, and the defendant was not required to wait indefinitely for the plaintiff's medical condition to be corrected; moreover, the defendant was not given an opportunity to engage in the required interactive process with the plaintiff regarding a reasonable accommodation for her disability given that she had failed to follow through with her own directions to the defendant as to how communications would occur.

         Procedural History

         Action to recover damages for alleged disability discrimination, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Elgo, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          OPINION

          BEACH, J.

         The plaintiff, Kim Thomson, appeals from the judgment of the trial court granting the motion for summary judgment filed by the defendant, the Department of Social Services. On appeal, the plaintiff contends that the court improperly held that insufficient facts were presented to support a prima facie case for disability discrimination. We affirm the judgment of the trial court.

         The following facts, taken from the materials submitted in connection with the motion for summary judgment, are relevant to this appeal. The plaintiff was employed by the defendant as a clerical assistant from 1987 to 2013. She has suffered from severe chronic asthma since birth. Throughout her employment with the defendant, the plaintiff suffered occasional ‘‘flareups'' of her condition. During these flare-ups, the plaintiff required rest for recovery and was unable to work. On several occasions the plaintiff arranged with her human resources representative, Kelly Geary, to take medical leave pursuant to the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (2012) (FMLA). By October, 2012, however, the plaintiff was no longer eligible for FMLA leave because she had not worked the number of hours required to maintain eligibility. The plaintiff, Geary, and the plaintiff's supervisor, Louis Polzella, met to discuss how they could accommodate the plaintiff without using FMLA leave and determined that the plaintiff could use sick leave, personal leave, governor's leave, and unpaid leave when necessary to accommodate her disability.

         On January 30, 2013, the plaintiff notified Geary that she would need to take intermittent leave as an accommodation for her disability. The plaintiff provided Geary with a medical certificate on which the plaintiff's physician indicated that she would need ‘‘to . . . work only intermittently or on a reduced schedule as a result of the condition, '' and would be unable to work for four days per month going forward. The form left space for the plaintiff's physician to indicate when she would be able to return to work full-time, but he drew a line through the space and did not fill in a date.

         Early in 2013, Geary became responsible for supervising another unit, and Lisa Owens replaced Geary as the plaintiff's human resources representative. On January 31 of that year, Geary sent Owens a memo informing her that the plaintiff ‘‘[h]as had FMLA-fed intermittent for years'' and that ‘‘last time she submitted, '' she did not have the hours required to take any additional FMLA leave. Geary also indicated that the plaintiff had mentioned that she may need to take leave soon and had requested the ability to use leave donated from a ...


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