United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT AND OTHER
A. BOLDEN UNITED STATES DISTRICT JUDGE
Carman-Nurse (“Plaintiff”) initiated this lawsuit
in state court, alleging that her former employer,
Metropolitan District Commission (“the MDC” or
“Defendant”) violated her rights when it
terminated her employment after she was injured and had
difficulty returning to work. The MDC subsequently removed
the case to this Court, and Ms. Carman-Nurse amended her
Complaint, alleging violations of Connecticut's
Workers' Compensation statutes, Conn. Gen. Stat. §
31-290a, the Family Medical Leave Act (“FMLA), 29
U.S.C. 2612 et seq., and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
pending before the Court are several motions: Defendant's
motion to amend its answer, ECF No. 22; Defendant's
motion to dismiss Count I, ECF No. 23; Defendant's motion
for summary judgment on all counts, ECF No. 36; and
Defendant's motion to strike portions of Plaintiff's
response, ECF No. 48.
reasons stated below, the motion to amend is
GRANTED. The motion to strike is
DENIED, the motion to dismiss is
DENIED as moot and the motion for summary
judgment is GRANTED as to the FMLA and ADA
claims. Because the dismissal of these claims deprives the
Court of subject matter jurisdiction, the Connecticut
Workers' Compensation statute claim, the sole remaining
claim, and this case are remanded to the Connecticut Superior
FACTUAL AND PROCEDURAL BACKGROUND
Carman-Nurse is a Connecticut resident and former employee of
the MDC. Am. Compl. ¶¶ 2, 31, ECF No. 17. The MDC
is a nonprofit municipal corporation that employs more than
75 employees and provides water, sewer, and waste collection
services to a number of municipalities throughout
Connecticut. See Answer ¶¶ 3-5, ECF No.
Carman-Nurse first began working as a meter installer for the
MDC in 1994. Def. 56(a)(1) Stmt. ¶ 1, ECF No. 38;
Carman-Nurse Dep. at 34:10-16, Shea Aff., Ex. A, ECF No.
39-1. MDC fired Ms. Carman-Nurse, however, on November 3,
1997, after she allegedly lied to her supervisors.
See Arb. Award, Shea Aff., Ex. S, ECF No. 39-19.
After arbitration, MDC reinstated Ms. Carman-Nurse to her
position on January 18, 2000. See Id. Upon her
reinstatement, Ms. Carman-Nurse returned as a clerk in the
meter department and MDC subsequently hired her as a customer
service representative in 2010. Def. 56(a)(1) Stmt. ¶ 6;
Carman-Nurse Dep. at 38:11-15.
Job Requirements for Customer Service Representative
customer service representative, Ms. Carman-Nurse had to
“respond to telephone inquiries and complaints by
customers, ” “maintain and integrate water
and sewer records and documents, ” and “type .
. . correspondence, index cards, information on forms,
reports, and statistics, ” and operate a computer.
Analysis of Physical Req., Shea Aff., Ex. Q, ECF No. 39-17.
The position reportedly required extensive time operating a
computer, as well as occasional lifting, turning, twisting,
reaching over-head, standing and stooping. Id.
practice, Ms. Carman-Nurse claimed to receive approximately
one hundred and thirty calls per day from customers.
Carman-Nurse Dep. at 75:16-25. Most of these calls involved
billing inquiries, which required retrieving and submitting
data from the computer database after speaking with the
customer through a headset. See Id. at 77:2-24.
After each call, Ms. Carman-Nurse prepared either a complaint
or a log by inputting “a few words” into the
computer related to each customer's inquiry. Id.
at 75:16-25. These duties required Ms. Carman-Nurse to use
both of her hands, a consistent requirement from 2012 to her
termination in early 2016. Id. at 77:23-78:19, 83:1.
Ms. Carman-Nurse's Injury and Treatment
point during her employment, Ms. Carman-Nurse developed
numbness, tingling and pain in her left hand and wrist,
leaving her hand partially impaired. See Ashmead
Treatment Note, Pl. Ex. 7 (documenting visit with physician
on April 1, 2016). She experienced constant numbness and a
sense of tightness in her fingers, and a loss of feeling in
four of her five fingers. Ashmead Treatment Note at 1, ECF
No. 46-14 (documenting visit with physician on January 20,
2015). Her hand appeared to hurt even with light contact.
to Ms. Carman-Nurse, she developed carpal tunnel syndrome
from the consistent use of her hands, while using a computer
as a clerk and customer service representative, along with
her previous work as a meter installer. Carman-Nurse Dep. at
86:4-25. Shortly after she switched to the customer service
representative position in 2010, Ms. Carman-Nurse brought in
a chair to accommodate the symptoms and requested a new
keyboard from her supervisor, Kimberly Haynes. Carman-Nurse
Dep. at 90:2-91:12.
December 3, 2014, Ms. Carman-Nurse filed a First Report of
Injury with MDC to describe an injury sustained to her left
hand and to initiate her claim for workers' compensation
benefits. Def. SMF ¶ 8; see Fillion Dep. at
45:12-20, Pl. Mem. In Opp., Ex. 6, ECF No. 46-6. The First
Report of Injury noted that Ms. Carman-Nurse's injury
stemmed from the repetitive and hand-intensive tasks required
of Ms. Carman-Nurse as a customer service representative.
Def. 56(a)(1) Stmt. ¶ 8.
Carman-Nurse then began her treatment at Concentra Medical
Centers on December 5, 2014, and the facility
released her on the same day with restrictions on the use of
her left hand. See Concentra Records, Pl. Mem. in
Opp., Ex. 10, ECF No. 46-10. At her initial visit with
Concentra, the treating staff diagnosed Ms.
Carman-Nurse's left hand injury as
“tenosynovitis” and recommended physical therapy
treatment at Concentra from December 10, 2014, to January 8,
2015. See Concentra Records, Pl. Mem. In. Opp., Ex.
Concentra, two additional doctors diagnosed Ms.
Carman-Nurse's condition as carpal tunnel syndrome.
Initially, on January 6, 2015, Dr. John Mara evaluated Ms.
Carman-Nurse and suggested surgical decompression, because
the splint she had been using appeared to be ineffectual.
Mara Medical Report, Shea Aff., Ex. L, ECF No. 39-12. Ms.
Carman-Nurse then began treatment with Dr. Duffield Ashmead
on January 20, 2015. Ashmead Report of Jan. 20, 2015, Pl. MSJ
Mem. In Opp., Ex. 14, ECF No. 46-14; Letter to Dr. Ashmead,
Pl. MSJ Mem. In. Opp., Ex. 13, ECF No. 46-13. Dr. Ashmead
also recommended a left carpal tunnel decompression, which he
performed on March 4, 2015. Def. 56(a)(1) Stmt. ¶ 16.
Several months later, Ms. Carman-Nurse had thumb surgery
performed by Dr. Ashmead. Def. 56(a)(1) Stmt. ¶ 17;
Ashmead Dep., Def. 56(a)(1) Stmt., Ex. D, ECF No. 39-4.
these surgeries left Ms. Carman-Nurse disabled for several
months. Def. 56(a)(1) Stmt. ¶¶ 16-17. Additionally,
Ms. Carman-Nurse remained out of work for two further months,
after she was scalded by hot coffee. Def. 56(a)(1) Stmt.
Ms. Carman-Nurse's Leave
December 29, 2014, MDC placed Ms. Carman-Nurse on leave.
See E-mail from Robert Zaik to Cynthia Tower
(“Zaik Email”), Pl.'s Mem. In Opp., Ex. 12,
ECF No. 46-12 (“Upon directive, I have met with
Christina to inform her that because we are concerned with
the possibility of her aggravating the situation, we are
allowing her to go home under Workers Comp . . . . ”).
Zaik, MDC's Manager of Labor Relations, stated that Ms.
Carman-Nurse originally did not intend to take time off. He
noted, however, that “we weren't going to allow her
to work with a brace on and to attend physical therapy during
our working hours.” Zaik Dep. at 66:2-4. Zaik indicated
that Ms. Carman Nurse therefore would not be allowed to work
so long as these circumstances existed. Zaik Dep. at
65:25-66:4. Ms. Carman-Nurse ceased working on December 30,
2014, as a result, despite having returned to work at MDC
with accommodations after her December 5, 2014, Concentra
visit. See Ashmead Questionnaire, Shea Aff., Ex. K,
ECF No. 39-11; Fillion Dep. at 55:15-56:8, Pl. Mem. In Opp.,
expected Ms. Carman-Nurse to exhaust her sick leave and,
then, “when she runs out of sick leave, ”
“receive only the [workers' compensation] statutory
payment.” Zaik Email. Carman-Nurse never requested FMLA
leave,  but MDC began tracking her leave under
FMLA on December 29, 2014. Zaik Aff. ¶ 24. On December
29, 2014, Mr. Zaik, sent an email to Erin Ryan, MDC's
Director of Human Resources. Zaik Email, Pl. Mem. In Opp.,
Ex. 12, ECF No 46-12; Zaik Dep. 23:20-22 and 60:16-18, Pl.
Mem. In Opp., Ex. 11, ECF No. 46-11. In the email, Zaik
stated that, “[u]pon directive, ” he had informed
Ms. Carman-Nurse that due to the concern of aggravating her
injury, her work absences would be tracked concurrently as
FMLA leave with her sick leave and Workers' Compensation.
Zaik Email, Pl.'s Mem. In Opp., Ex. 12.
not provide any written notice to Ms. Carman-Nurse that her
leave would be tracked as both workers' compensation and
the FMLA, but Mr. Zaik alleges that he spoke to Ms.
Carman-Nurse about the FMLA tracking. Zaik Dep. at 69:6-9. He
stated that, at the time, he did not consider Ms.
Carman-Nurse's injury to be a serious medical condition
that would qualify her for FMLA leave. Id. at
75:16-19. However, although he “did not interpret it as
a serious medical condition, ” he tracked Ms.
Carman-Nurse's under the FMLA because he said it was his
“effort to stem off this prior experience that we had
with long-term absences with her.” Id. at
Carman-Nurse's treating physicians continually sustained
her work restrictions. In November 2015, for example, Dr.
Ashmead stated that Ms. Carman-Nurse should be kept on
modified duty and not be able to lift, push, or pull more
than five pounds. Nov. 24, 2015 Ashmead Report, Shea Aff.,
Ex. R, ECF No. 39-18. He also found that she should not do
“hand intensive/repetitive” work. Id.
then referred Ms. Carman-Nurse to a physician they had
retained. Caputo Report, Zaik Aff., Ex. B, ECF No. 40-2. At
that appointment, Ms. Carman-Nurse stated that she
experienced “burning, painful discomfort”
following her recent surgery and that therapy had not
provided relief. Id. at 1. Dr. Caputo informed MDC
that “[c]urrent work capacity would be no lift[ing],
push[ing], or pulling or respective use [in the] left
hand.” Id. at 2. Furthermore, he noted that
“[t]he resumption of full time, full duty employment
would depend on residual relief on the current symptoms which
at this time are quite bothersome. . . . Unfortunately, I
cannot provide an exact time frame for full duty release
relative to this as sometimes this could be a permanent
problem limiting her ability to do full duty work
December 22, 2015, Dr. Ashmead examined Ms. Carman-Nurse
again. He again concluded that she was unable to return to
the essential functions of her job as he understood them.
Ashmead Dep. 63:11-16, Shea Aff., Ex. D, ECF No. 39-4. In his
treatment notes, Dr. Ashmead wrote that Ms. Carman-Nurse
“reports profound difficulty using or engaging the
thumb, even gently trying to move it is reportedly very
painful.” Ashmead Treatment Note, Shea Aff. Ex. I, ECF
No. 32. He left “[e]xisting light duty
restrictions” in effect. Id.
Attempts to Return to Work
her surgery in July 2015, Ms. Carman-Nurse attempted to
return to work. She “would go to the doctor” and
then return to the MDC offices to see Mr. Zaik and, handing
him the doctor's note, Ms. Carman-Nurse said “ Bob,
if there's anything I can do at work, to go back to work,
I would do it.” Carman-Nurse Dep. at 106:14-25. She
claimed that “each time he would say, ‘It's
okay, Chris, you wait until you [are] a hundred
percent.'” Id. at 106:24-25.
January 11, 2016, MDC created a “Loss Run, ”
which documents the cost of employees' injuries and
relevant workers' compensation benefits. See
Loss Run, Pl. Mem., Ex. 23, ECF No. 46-23. Ms. Carman-Nurse
had the highest cost related to her benefits, a total of $82,
582. Id. see also Deposition of Cynthia Fillion at
101:15-102:2, Pl. Suppl. Resp., Ex. A, ECF No. 62-1. At some
point, someone circled the indemnity figure for Ms.
Carman-Nurse- which was $36, 910-and wrote on the back of the
document “60 Day Notice? Hearing this week.”
letter dated the same day, January 11, 2016, Mr. Zaik
notified Ms. Carman-Nurse of a hearing scheduled for January
15, 2016, to review her employment status under the terms of
her Collective Bargaining Agreement. Def. 56(a)(1) Stmt.
¶ 27; see also Letter from Robert Zaik to
Christina Carman-Nurse (Jan. 11, 2016), Shea Aff. Ex. F, ECF
No. 40-6. MDC notified Ms. Carman-Nurse that “a
physician retained by the [MDC] has determined that you are
unable to return to work in any capacity.” The letter
stated that she would be terminated unless the company
received a “report form you which, in the
District's opinion, [that] unconditionally confirms that
you will be able to return to work in your present position
within sixty (60) days of the date of the hearing.”
January 15, 2016, MDC held a hearing. See
Carman-Nurse Dep. at 113:3-7. She did not bring any documents
to the meeting, but she did bring a card detailing an
appointment scheduled for three days later. Id. Ms.
Carman-Nurse “believed she would be able to get a
report from him stating that she could return to work within
the required time period.” Zaik Aff. ¶ 14.
January 18, 2016, Dr. Ashmead signed a summary note stating
that Ms. Carmen-Nurse had been evaluated and could return to
regular duty, with no restrictions, beginning on January 20,
2016. Ashmead Treatment Note, Shea Aff. Ex. H, ECF No. 39-8.
Ashmead also prepared a longer report stating that
“Christina has indicated that she has been given an
ultimatum by her employer: regular duty or she will be
terminated. She would like to give it a try. Accordingly she
is to call or return should questions or problems arise prior
to further follow-up for a progress report, 2/19.”
Ashmead Treatment Note, Shea Aff. Ex. J, ECF No. 33. Dr.
Ashmead, however, stated that “[i]n the interim
effective 1/20 she is released to regular duty as detailed
Carman-Nurse provided the summary note to Robert Zaik on
January 19, 2016. Zaik Aff. ¶ 16. He understood the note
to mean “that she could return to work within the
required time period.” Id.
letter dated January 21, 2016, Christopher Stone, an attorney
for MDC, wrote to Dr. Ashmead regarding Ms.
Carman-Nurse's claim, noting his prior opinion and that
of Dr. Caputo, and stating that MDC had received “a
copy of an unsigned report from you indicating that you had
evaluated Ms. Carman-Nurse on January 18, 2016, and that as
of January 20, 2016 she could return to regular duty with no
restrictions.” See Letter from Christopher
Stone, Assistant MDC Counsel, to Duffield Ashmead, M.D.,
Stone Aff., Ex. A, ECF No 41-1. Mr. Stone requested that Dr.
Ashmead “share with us the change in circumstances
and/or facts” supporting his new conclusion, especially
as “[h]er return to regular duty without restrictions
will be based solely on your January, 2016 opinion and the
facts supporting this opinion.” Id.
Carman-Nurse then “hand-delivered” Dr.
Ashmead's longer medical report, dated January 18, 2016,
to Robert Zaik. Zaik Aff. ¶ 19.
January 28, 2016, MDC sent a letter to Ms. Carman-Nurse
terminating her employment. Letter from Robert Zaik to
Christina Carman-Nurse, ECF No. 46-3. The letter summarized
the various doctor reports that had been submitted. It stated
that, although Ms. Carman-Nurse's treating physician had
cleared her to work, “the report clearly states that
your potential return to regular duty has nothing to do with
your medical condition, which remained unchanged from the
earlier referenced reports, both from your doctor and the
independent examiner.” Id. MDC therefore
concluded that “your employment relationship is being
terminated” for failure to provide proper medical
initial Complaint, filed in state court, included three
counts: Count I alleged retaliation and wrongful termination
in violation of Conn. Gen. Stat. § 31-290a; Count II
alleged interference in violation of the Family Medical Leave
Act (“FMLA”), 29 U.S.C. § 2612, et
seq; and Count III alleged retaliation in violation of
the FMLA. See Compl., ECF No. 1-1.
removed the case from state court, invoking this Court's
federal question jurisdiction under 28 U.S.C. § 1331.
Notice of Removal at 2, ECF No. 1. Ms. Carman-Nurse then
filed an Amended Complaint. Am. Compl. ECF No. 17. The
Amended Complaint renewed Ms. Carman-Nurse's allegations
of retaliation and wrongful termination in violation of Conn.
Gen. Stat. § 31-290a, and interference and retaliation
in violation of the Family Medical Leave Act, 29 U.S.C.
§ 2612, et seq. It also added a fourth count,
alleging a violation of the Americans with Disabilities Act,
42 U.S.C. § 12101, et seq.
April 6, 2017, MDC filed its Answer. Answer, ECF No. 19. Six
months later, in October 2017, MDC moved for leave to file an
Amended Answer, arguing that the Court did not possess
subject matter jurisdiction over Count I of the Amended
Complaint. Mot. for Leave to File Am. Answer, ECF No. 22.
same day, MDC also filed a partial Motion to Dismiss Count I
of the Amended Complaint. Def. Mot. to Dismiss, ECF No. 23.
It argued that Count I “alleges solely that the [MDC]
failed to provide the plaintiff suitable work, ” a
claim for which Conn. Gen. Stat § 31-313, rather Conn.
Gen. Stat.§ 31-290a, and that the claim therefore must
proceed before Connecticut's Workers' Compensation
Commission. Id. Ms. Carman-Nurse opposed the motion
to dismiss arguing that she had properly pleaded a
retaliation claim and that the Court maintained subject
matter jurisdiction. Pl. Obj., ECF No. 25.
the Court ruled on the motion to dismiss, discovery closed
and MDC moved for summary judgment on all counts. See
generally Def. Mot. for Summ. J., ECF No. 36; Def. Mem.
of Law in Support (“Def. MSJ Br.”), ECF No. 37.
MDC argues that Ms. Carman-Nurse failed to state a prima
facie case for each of the discrimination and
retaliation claims and that she was unable to return to work.
MDC therefore argues that, even had Ms. Carman-Nurse stated a
prima facie case, it had a legitimate,
non-retaliatory reason for terminating her employment.
Carman-Nurse opposes the motion for summary judgment. She
argues that MDC “consistently ignores the virtual
mountain of ‘smoking-gun' evidence that it
unlawfully retaliated against Plaintiff . . . .” Pl.
MSJ Resp. Br. at 2, ECF No. 46. She also claims that there
are continued issues of material fact “with respect to
each and every element of every claim at issue” which
would be “sufficient for the causes of action to be
properly submitted to a jury.” Id.
MDC moved to strike passages from Ms. Carman-Nurse's
brief. Def. Mot. to Strike, ECF No. 48. MDC argues that the
plaintiff had cited to a draft letter that MDC employees had
sent to legal counsel for review. Id. at 1. This
letter, MDC claims, is protected by attorney-client privilege
and was disclosed accidentally. MDC argues that, because MDC
had attempted to claw back the letter, Ms. Carman-Nurse had
to seek a court ruling before citing the letter and therefore
any reference should be stricken from her brief. Id.
Carman-Nurse objects to the motion to strike on two grounds.
See Pl. Obj., ECF No. 52. First, she argues that the
letter is not privileged at all. Second, and alternatively,
she argues that MDC has waived the privilege by failing to
object to the letter's use, until after she had relied on
it in one deposition and tried to raise it in a second
Standard of Review
Motion to ...