Carman-Nurse v. Metropolitan District Commission

          RULING ON MOTION FOR SUMMARY JUDGMENT AND OTHER PENDING MOTIONS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Christina 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 et seq.

         Currently 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.

         For the 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 Court.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Ms. 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. 19.

         A. Factual Background

         Ms. 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.

         1. Job Requirements for Customer Service Representative Position

         As a 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.

         In 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.

         2. Ms. Carman-Nurse's Injury and Treatment

         At some 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. Id.

         According 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.

         On 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.

         Ms. Carman-Nurse then began her treatment at Concentra Medical Centers^[1] 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. 10.

         After 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.

         Both of 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. ¶ 18.

         3. Ms. Carman-Nurse's Leave

         On 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 . . . . ”).

         Robert 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., Ex. 6.

         MDC 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, ^[2] 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.

         MDC did 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.^[3] 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 76:1-5.

         Ms. 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.

         MDC 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 permanently.” Id.

         On 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.

         4. Attempts to Return to Work

         Following 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.

         On 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.” Id.

         In a 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.” Id.

         On 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.

         On 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.

         Dr. 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 separately.” Id.

         Ms. 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.

         In a 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.

         Ms. Carman-Nurse then “hand-delivered” Dr. Ashmead's longer medical report, dated January 18, 2016, to Robert Zaik. Zaik Aff. ¶ 19.

         5. Termination

         On 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 clearance. Id.

         This lawsuit followed.

         B. Procedural History

         Plaintiff's 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.

         MDC 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.

         On 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.

         On the 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.

         Before 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.

         Ms. 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.

         Finally, 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. at 6.

         Ms. 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 deposition.

         II. Standard of Review

         A. Motion to ...