United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Ellsworth Evarts, a Public Safety Officer, brings this civil
action against his employer, defendant Quinnipiac University
("Quinnipiac”) alleging that it violated his
rights under the Family and Medical Leave Act, 29 U.S.C.
§§ 2601, et seq., and the Americans With
Disabilities Act, 42 U.S.C. §§ 12101, et
seq., when it discriminated against him based upon a
physical disability.In his Complaint, he alleges that from
January 24, 2014, to June 28, 2014, Quinnipiac failed to
"afford [him] reasonable accomodation [sic]" for
his disability. Doc. 1, ¶¶ 7, 9.
particular, Plaintiff alleges that Quinnipiac "sent
[him] home" rather than accommodating him; and after
back surgery "refused to [allow him] to return to work
even after [his] surgeon released [him] for
duty." Id., ¶ 7. See also
Doc. 16, at 2 (III.A.). According to Plaintiff, Quinnipiac
also "insisted [his] FMLA [benefits] had expired in an
attempt to vacate [him]" or place him on vacation. Doc.
1, ¶ 7.
subsequently filed charges with the Equal Employment
Opportunity Commission ("EEOC") and received a
"Notice of Right to Sue" letter on or about July
21, 2015. Id., ¶¶ 10-11; id., at
7 ("Dismissal and Notice of Rights," dated
7/17/2015). Plaintiff alleges that he has the necessary
documentation to show that the alleged discrimination
occurred. Id., ¶ 12. In his prayer for relief,
Plaintiff seeks "backpay" and "[m]onetary
damages," which he describes as "lost wages"
and "retirement benefits." Id., at 4-5. He
also demands a trial by jury. Id., at 5.
discovery in the case has been completed. Quinnipiac has now
filed a "Motion for Summary Judgment" pursuant to
Federal Rule of Civil Procedure 56(a), asserting that, with
respect to both claims, there is no genuine dispute as to any
material fact and Quinnipiac is entitled to judgment as a
matter of law. Plaintiff, resisting that motion, contends
that the record demonstrates the existence of factual issues
which preclude summary disposition. This Ruling resolves the
STANDARD FOR SUMMARY JUDGMENT
Second Circuit has repeatedly declared that, pursuant to Rule
56(a), Fed. R. Civ. P., "[s]ummary judgment is
appropriate only if, drawing all reasonable inferences in
favor of the nonmoving party, there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law." Glatt v. Fox Searchlight Pictures,
Inc., 811 F.3d 528, 533 (2d Cir. 2016). "[T]his
standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986).
deciding whether to award summary judgment, the court
"constru[es] the evidence in the light most favorable to
the [nonmoving party]' and 'draw[s] all reasonable
inferences and resolv[es] all ambiguities in [its]
favor.'" Jaffer v. Hirji, 887 F.3d 111, 114
(2d Cir. 2018) (quoting Darnell v. Pineiro, 849 F.3d
17, 22 (2d Cir. 2017)). "[A] fact is material if it
'might affect the outcome of the suit under the governing
law,' and a dispute is genuine if 'the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.'" Baldwin v. EMI Feist Catalog,
Inc., 805 F.3d 18, 25 (2d Cir. 2015) (quoting
Liberty Lobby, Inc., 477 U.S. at 248).
Rule 56(a), the moving party bears the initial burden of
demonstrating that no genuine issue exists as to any material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323-25 (1986); CILP Assocs., L.P. v. PriceWaterhouse
Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013). Then, if
the movant succeeds in carrying its burden, "the
opposing party must come forward with specific evidence
demonstrating the existence of a genuine dispute of material
fact." Brown v. Eli Lilly & Co., 654 F.3d
347, 358 (2d Cir. 2011).
party may not rely on mere speculation or conjecture as to
the true nature of the facts to overcome a motion for summary
judgment." Hicks v. Baines, 593 F.3d 159, 166
(2d Cir. 2010) (citation omitted). See also Process Am.,
Inc. v. Cynergy Holdings, LLC, 839 F.3d 125, 141 (2d
Cir. 2016). Instead, a party asserting that a fact is
genuinely disputed "must support the assertion" by
citing to the record or showing that "the materials
cited do not establish the absence . . . of a genuine
dispute." Torres v. City of New York, No. 09
CIV. 9357 (LGS), 2017 WL 2191601, at *1 (S.D.N.Y. May 17,
2017) (quoting Fed.R.Civ.P. 56(c)(1)(A)-(B)).
"'[C]onclusory allegations or denials' in legal
memoranda or oral argument are not evidence and cannot by
themselves create a genuine issue of material fact where none
would otherwise exist." Golino v. City of New
Haven, 761 F.Supp. 962, 965 (D. Conn.1991) (quoting
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d
438, 445 (2d Cir.1980)).
as to the issue on which summary judgment is sought, there is
any evidence in the record from which a reasonable inference
could be drawn in favor of the nonmoving party, summary
judgment is improper." Victory v. Pataki, 814
F.3d 47, 59 (2d Cir. 2016) (quoting Rodriguez v. City of
New York, 72 F.3d 1051, 1061 (2d Cir.1995)). Conversely,
if the non-moving party fails to submit proof concerning an
essential element of its case, summary judgment is warranted.
Celotex Corp., 477 U.S. at 323.
the ultimate test "is whether the evidence can
reasonably support a verdict in plaintiff's favor."
James v. N.Y. Racing Ass'n, 233 F.3d 149, 157
(2d Cir. 2000). "Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial." Baez v.
JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir. 2015)
(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
respect to employment discrimination claims, "[t]he
Second Circuit has cautioned district courts that they must
be 'particularly cautious about granting summary judgment
to an employer in a discrimination case when the
employer's intent is in question. Because direct evidence
of an employer's discriminatory intent will rarely be
found, 'affidavits and depositions must be carefully
scrutinized for circumstantial proof which, if believed,
would show discrimination.'" Miller v. Edward
Jones & Co., 355 F.Supp.2d 629, 636 (D. Conn. 2005)
(quoting Schwapp v. Town of Avon, 118 F.3d 106, 110
(2d Cir.1997)). However, "[s]ummary judgment is
appropriate even in discrimination cases," Weinstock
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000),
because "a plaintiff must provide more than conclusory
allegations of discrimination to defeat a motion for summary
judgment." Schwapp, 118 F.3d at 110.
the Local Rule 56(a)(1) Statements of the Parties [Doc. 33-5
and Doc.40-18], the Court discerns the following undisputed
January of 2006, Quinnipiac hired Plaintiff as a full-time
security officer and assigned him to the night shift with
responsibility for covering entry points, typically Gate 1,
the booth at the New Road entrance to Quinnipiac's campus
in Hamden, Connecticut. Doc. 33-5 & 40-18, ¶ 1. In
that position, Plaintiff was responsible for directing
traffic, stopping vehicles as they entered campus, checking
individuals' IDs coming onto campus, confirming that
visitors had passes, directing drivers to the correct parking
lot, and dealing with issues on student transport buses.
Id., ¶ 2. After Plaintiff worked for almost
eight years at night at Gate 1, Quinnipiac reassigned him to
Gate 3, located at the Mount Carmel Avenue entrance to
campus, where he performed essentially the same duties he had
performed at Gate 1. Id., ¶ 3. A few months
after his switch to Gate 3, Plaintiff successfully applied to
fill an opening on the day shift for Gate 3. Id.
August 2013, Quinnipiac began assigning Plaintiff to cover a
security desk at the soon-to-open medical school on the North
Haven campus. Id., ¶ 4. At that location, he
was responsible for checking IDs, issuing key cards,
monitoring the coming and goings of construction workers on
site, and responding to emergencies. Id.
of 2013, a couple of months before Plaintiff began working
primarily at the North Haven campus, he tripped over a floor
mat while walking to punch out at the conclusion of his
shift, fell, and suffered a cervical injury. Doc. 33-5 &
40-18, ¶ 5; see also Doc. 33-1, at 6 (citing
Evarts Dep., at 93-94, 96-97, 99-100). When Plaintiff
returned to work after a brief absence, he worked on
"regular duty" per a medical note issued by
Yale-New Haven Hospital Occupational Health Plus. Doc. 33-5
& 40-18, ¶ 5; see also Doc. 33-4 (Affidavit
of Nicole Lambusta ("Lambusta Aff.")), ¶ 3,
Ex. 1. He pursued a workers' compensation claim and
brought a civil suit against MagnaKleen, the company
responsible for installing and servicing the rug; that suit
settled for $275, 000.00. Doc. 33-5 & 40-18, ¶ 6;
Evarts Dep. at 97-99, Doc. 33-2, at 49-53 (Evarts Dep., Ex.
worked at Gate 1 on January 10, 11, 16, 17, 20, and 21, 2014.
Doc. 33-5 & 40-18, ¶ 7. Then, on January 23, 2014,
several months after his June 2013 injury, Plaintiff sent an
email to Sam Cotto, then Assistant Chief of the Department of
Public Safety, reporting a series of back, neck, knee, and
shoulder issues he was experiencing. He also stated that
although he was scheduled to work at Gate 1 for the next two
days, he was unable to direct traffic. Id., ¶
8. The text of that email stated:
I'm on Gate One for the next two day shifts. As I said in
the past I have no problem with working the Gate but I can
not direct traffic due to my injuries. Along with the back
and neck issues my right knee and shoulder are giving out as
I now have to rely on my right side for mobility causing my
knee to give out and severe pain in the right shoulder. My
Doctor told me my gates are in bad shape because of the Disc
C-3 in my neck is crushing the spinal cord up there. I have
another appointment on the 28th of January and the 5th of
February to schedule the surgery. I'll keep you posted.
Doc. 33-2, at 54 (Evarts Dep, Ex. I).
following day, Assistant Chief Cotto assigned Evarts to Gate
2, near the admissions building, because that gate had no
traffic-directing duties. Doc. 33-5 & 40-18, ¶ 9;
Evarts Dep., at 119. In response to Plaintiff's
suggestions in his email to Cotto that he was not physically
capable of performing the full range of tasks associated with
his position, Nicole Lambusta, then Quinnipiac's Human
Resources Business Partner, directed Plaintiff's
immediate supervisor, Sergeant Jim Moniello, to send
Plaintiff home until such time as he provided a new medical
note updating his condition. Doc. 33-5 & 40-18, ¶ 10;
Evarts Dep., at 119-20; Doc. 33-4 (Lambusta Aff.),
¶¶ 4, 5. Later that day, Plaintiff consulted with
his physician, Gary Bloomgarden, M.D., by phone. Doc. 33-5
& 40-18, ¶ 12. Dr. Bloomgarden issued Plaintiff an
"Out Of Work Note," which pronounced him
"unable to return to work … until further
days later, on January 26, 2014, Plaintiff forwarded
Bloomgarden's note to Lambusta by email. Doc. 33-5 &
40-18, ¶ 13; Doc. 33-2, at 55 (Evarts Dep., Ex. J). In
that email, he also expressed a complaint that he had
"requested reasonable accommodations to perform [his]
duties on Friday the 24th of January," but
instead had been sent home. Doc. 33-5 & 40-18, ¶ 13.
Evarts pointed out that he had previously been released to
full duty by his physicians with the understanding that he
was assigned exclusively to a sedentary desk job at the
medical school. Id. His email further stated:
Recently I was taken out of the Medical School and placed in
gate positions at Mt. Carmel that required standing, walking,
twisting directing traffic and had to walk greater distances
to use the facilities, so I asked for reasonable
accommodations. I let Chief Cotto know that I could work the
gate but could not direct traffic.
Doc. 33-2, at 55 (Evarts Dep., Ex. J).
replied on Tuesday, January 28, 2014, as follows:
The university requires medical documentation for all
requests for restrictions, light duty or other
accommodations. Because we did not have documentation on file
for you, we followed our standard practice and
temporarily relieved you from your duties until you could
provide us with such documentation from your physician.
Until you submitted the recent note from Dr.
Bloomgarden's office on Sunday, attached to this email
and dated 1/24/14, all of the doctors' notes in the file,
convey your status as regular duty with no restrictions at
Id. (Evarts Dep., Ex. J) (emphasis added).
then offered to provide Plaintiff with a job description to
enable his physician to "make an accurate assessment of
[Plaintiff's] ability to perform [his] job, including
what accommodations are needed." Id. She
assured Plaintiff he would be fully compensated for his
scheduled work hours on January 24, 27, and 28. Id.
She also requested Plaintiff to provide documentation of his
surgery date, a follow-up report as to his upcoming medical
appointment to update his status, and any additional measures
that Quinnipiac could take to accommodate his needs.
light of Dr. Bloomgarden's statement on January 24, 2014,
indicating that Plaintiff was "unable to return to work
. . . until further notice," Quinnipiac's Human
Resources Department interpreted his absence as involving a
"serious health condition" within the meaning of
the FMLA and directed Plaintiff to have his physician
complete the FMLA paperwork. Doc. 33-5 & 40-18, ¶
16; Doc. 33-3 (Affidavit of Lori Musante ("Musante
Aff.")), ¶ 3. Plaintiff, however, disagreed,
believing that because his injury was work-related, involving
a workers' compensation claim, the FMLA was not
applicable. Doc. 33-5 & 40-18, ¶ 17. It was
finally mid-March of 2014, a day or two before
Plaintiff's scheduled surgery when he picked up the FMLA
paperwork from Quinnipiac and gave it to his physician. Doc.
33-5 & 40-18, ¶ 18; Evarts Dep., at 126-27.
about March 17, 2014, Plaintiff submitted to Quinnipiac a
"Certification of Health Care Provider for
Employee's Serious Health Condition," completed by
Patrick Tomak, M.D., Plaintiff's spinal surgeon. Doc.
33-5, ¶ 19. The form, dated March 14, 2014, indicated
that Plaintiff would be out of work from March 18, 2014 (the
date of surgery) until June 18, 2014. Doc. 33-5, ¶ 19;
Evarts Dep., at 113-14, 187; Doc. 33-2, at 59-62 (Evarts
Dep., Ex. K). Along with this form, Plaintiff submitted an
"Employee Statement of Understanding," detailing
the terms of his FMLA leave, which included the following
provisions: (1) paid leave would be used concurrently; and
(2) before returning from leave, Plaintiff would provide a
certification from his health care provider confirming that
he was medically able to resume work. Doc. 33-5 & 40-18,
¶ 20; Doc. 33-2, at 63 (Evarts Dep., Ex. L).
late April 2014, Plaintiff received paychecks from Quinnipiac
for forty (40) hours per week at his regular rate of pay
through a combination of vacation time, sick time, and
personal time. Doc. 33-5 & 40-18, ¶ 21; Evarts Dep.,
at 207-10. In a letter dated April 25, 2014, Tina Monteiro,
Quinnipiac's Human Resources Coordinator, informed
Plaintiff that his accrued paid time off had been exhausted
and his FMLA leave allotment would run out on May 1, 2014,
based on his first day out of work being January 27, 2014.
Doc. 33-5 & 40-18, ¶ 22; Doc. 33-2, at 64 (Evarts
Dep., Ex. N.).
April 29, 2014, Plaintiff presented a "Return to
Work" note from Dr. Tomak dated April 28, 2014,
indicating that Plaintiff could return to sedentary work on
May 5, 2014, six weeks earlier than the originally projected
date of June 18. Doc. 33-5, ¶ 23; Doc. 33-2, at 65
(Evarts Dep., Ex. O); Doc. 33-3 (Musante Aff.), ¶ 4.
Also on April 29, Plaintiff submitted a second medical note
to Quinnipiac, dated March 10, 2014, and issued by Dr. David
Cohen, who treated Plaintiff's shoulder and knee. Doc.
33-5 & 40-18, ¶ 23; Evarts Dep., at 165, Doc. 33-2,
at 66 (Evarts Dep., Ex. P); Doc. 33-3 (Musante Aff.), ¶
5. In this note, Doctor Cohen released Plaintiff to return to
work as of March 11, 2014, seven days before his scheduled
surgery, in a sedentary position that would not require him
to lift, push, pull, reach over shoulder-level height, walk
distances, or direct traffic. Doc. 33-5 & 40-18, ¶
23; Evarts Dep., at 164, Doc. 33-2, at 66 (Evarts Dep., Ex.
receiving the notes, Musante, then Quinnipiac's Human
Resources Business Partner, faxed Dr. Tomak a copy of the
public safety officer job description, requesting
clarification regarding the full extent of Plaintiff's
restrictions. Doc. 33-5 & 40-18, ¶ 23. In
particular, Musante sought clarification because there was no
uniform definition of "sedentary" as applied to the
workplace and Dr. Tomak's FMLA certification indicated
that Plaintiff would be unable to perform all job functions
until he was evaluated 12 weeks after his March 18 surgery
(approximately June 18). Doc. 33-5 & 40-18, ¶ 23;
Doc. 33-3 (Musante Aff.), ¶ 6; Evarts Dep., at 163; Doc.
33-2, at 59-62 (Ex. K). Dr. Tomak's nurse phoned Musante
and advised her that Plaintiff was restricted to a "desk
job" and could not lift, push or pull over ten pounds,
perform tasks that might involve physical contact, or respond
to emergencies. Doc. 33-5 & 40-18, ¶ 25 (citing
Musante Aff., ¶ 7). Musante then described the
responsibilities of the post at the medical school, the
various gates on campus, and dispatch. In response, Dr.
Tomak's nurse advised that Plaintiff could work either at
a gate or in dispatch. Doc. 33-3 (Musante Aff.), ¶ 7.
Moreover, the nurse stated that Plaintiff had a follow-up
appointment on June 9, 2014, after which she would provide an
May or early June, Plaintiff met with Musante and Ron Mason,
Quinnipiac's then Vice President of Human Resources, to
discuss the options for Plaintiff's return to work. Doc.
33-5 & 40-18, ¶ 26; Evarts Dep., at 151-52. Certain
positions discussed were determined to be
unsuitable. Musante and Mason offered Plaintiff a
position on the security desk at North Haven, but explained
that the job was "rotational" and would require him
to patrol on foot for a portion of the shift. Doc. 33-5 &
40-18, ¶ 26; Evarts Dep., at 152. Plaintiff replied that
he thought the North Haven post involved an 8-hour assignment
at the desk without any rotation during the shift. Doc. 33-5
& 40-18, ¶ 26; Evarts Dep., at 152-53.
4, 2014, Human Resources Coordinator Tina Monteiro sent
Plaintiff a letter in which she corrected an error in her
previous April 25, 2014, letter regarding the expiration of
Plaintiff's FMLA leave. Doc. 33-5 & 40-18, ¶ 27.
The April letter had mistakenly identified May 1, 2014 as the
date Plaintiff's FMLA leave would be exhausted, but the
June 4 letter confirmed that Plaintiff's FMLA leave
actually expired on May 19, 2014 (16 weeks after
Plaintiff's initial absence on January 27, 2014), per the
requirements of Connecticut law. Id.; see
also Doc. 33-2, at 64, 67, (Evarts Dep., Ex. N, Q). In
response to the letter, Plaintiff phoned Musante to ask why
he had not yet been reinstated to his position. Doc. 33-5
& 40-18, ¶ 28. Musante explained that Quinnipiac
required a release from Plaintiff's doctors before he
could return to work, as indicated in the "Employee
Statement of Understanding" he had signed. Id.,
Doc. 33-2, at 6 (Evarts Dep., Ex. L) (attesting that
"[b]efore I return to work following a leave for my own
serious health condition, I will be required to provide
certification from a health care provider that I am medically
able to resume work").
10, 2014, one day after Plaintiff's follow-up June 9
appointment with Dr. Tomak, Musante phoned Plaintiff to
inquire whether Dr. Tomak had issued him a "return to
work note." Doc. 33-5 & 40-18, ¶ 29. Plaintiff
explained that he had seen Tomak the day before but would not
receive a note from him for a few days. Id.; Doc.
33-3 (Musante Aff.), ¶ 18. He also said that he had a
scheduled appointment to see Dr. John McCallum, his knee
doctor, on June 18, 2014. Doc. 33-5 & 40-18, ¶ 29.
16, 2014, Plaintiff submitted a report from his June 9
appointment with Dr. Tomak indicating that Plaintiff was
medically cleared to return to a desk position at the medical
school. Doc. 33-5 & 40-18, ¶ 30; Doc. 33-2, at 69
(Evarts Dep., Ex. S); Doc. 33-3 (Musante Aff.), ¶ 9.
Tomak had been given an official job description for a
security officer, including functions that were physically
demanding beyond the scope of Plaintiff's restrictions.
Doc. 33-2, at 44-48 (Evarts Dep., Ex. B). However, Plaintiff
also provided Dr. Tomak with a document regarding
"Medical School Desk and Law School Desk Duties,"
positions comprised mainly of sedentary functions and created
by the sergeant in charge of the North Haven campus. Evarts
Dep., at 172-75; Doc. 33-2, at 71-72 (Evarts Dep., Ex. T).
Plaintiff met with Dr. McCallum on June 18, McCallum
documented the following restrictions: no gate duty, limited
walking, and sedentary work until Plaintiff was seen in two
weeks for a follow-up appointment. Doc. 33-5 & 40-18,
¶ 32; Evarts Dep. at 188-89, Doc. 33-2, at 73 (Evarts
Dep., Ex. U). Around this time, Quinnipiac received a June 3,
2014, note from Dr. Cohen stating that Plaintiff was cleared
for "Sedentary Work," defined as "[l]ifting 10
lbs maximum, carrying such articles as dockets, ledgers, and
small tools." Doc. 33-5, ¶ 33; Doc. 33-3 (Musante
Aff.), ¶ 10; Doc. 33-2, at 68 (Evarts Dep., Ex. R). Such
"[w]ork essentially involves sitting and is considered
sedentary if only a small amount of walking is necessary to
carry out your duties." Doc. 33-2, at 68 (Evarts Dep.,
Ex. R). Dr. Cohen then listed the following restrictions:
"no lifting, limit walking, no long distance walking,
and no directing traffic." Id.
mid-June, Musante phoned Plaintiff and informed him that he
would be assigned exclusively to the desk at the North Haven
campus, consistent with his desires and the restrictions
imposed by his physicians. Doc. 33-5 & 40-18, ¶ 34;
Evarts Dep., 156-58; Doc. 33-3 (Musante Aff.), ¶ 12.
Plaintiff returned to work to that position on June 28, 2014,
and was assigned to a security desk at the North Haven
campus. Doc. 33-5 & 40-18, ¶ 35. Since that time,
there has been no deviation in his responsibilities.
Id., Evarts Dep., at 193-94. According to
Quinnipiac, and with no contradictory evidence presented by
Plaintiff, Plaintiff is the only officer with an exclusive
desk assignment because all other security officers must
rotate posts with varying degrees of frequency. Doc. 33-5
& 40-18, ¶ 36; see also Doc. 33-4 (Lambusta
Aff.), ¶ 9; Evarts Dep., at 60-61, 161-62. In other
words, Quinnipiac essentially asserts that it created a
unique position for Plaintiff for his continued employment.
Plaintiff remains confined to sedentary work and Quinnipiac
has honored his restrictions from the time he returned to his
position in late June 2014. Doc. 33-5 & 40-18, ¶ 37;
Evarts Dep., at 189-91.
respect to Plaintiff's workers' compensation claim,
on June 24, 2014, Travelers Insurance Company accepted
Plaintiff's claims for the June 2013 fall as a
work-related injury. Doc. 33-5 & 40-18, ¶ 38; Evarts
Dep., at 195. Travelers retroactively paid Plaintiff
workers' compensation benefits for the period beginning
on January 27, 2014 until May 6, 2014. Doc. 40-18, ¶ 38;
Evarts Dep., at 196. Plaintiff received "double
payment" for this period because Plaintiff used various
forms of "paid leave" (sick time, vacation time,
and personal time) to cover a portion of his leave before the
workers' compensation claim was approved. Doc. 33-4
(Lambusta Aff.), ¶ 7. The total double payment consisted
of 301.5 hours of sick time, 127 hours of vacation, and 16
hours of personal time. Doc. 33-2, at 74 (Evarts Dep., Ex.
W). At the hourly rate of $19.11, the double payment added up
to $8, 494.40. Id.
this period of double payment, Quinnipiac contacted Plaintiff
about making reimbursement to his account for the paid time
he had used during his leave because he had now been paid by
Travelers for the same period. Id. It is customary
for employees to repay paid leave following acceptance of a
workers' compensation claim so that paid time off may be
restored to the employee for later use. Doc. 33-5 &
40-18, ¶ 39; Doc. 33-4 (Lambusta Aff.), ¶ 7. When
asked whether he wished to repay the double payments,
Plaintiff stated that he wanted to arrange a plan of
repayment after speaking to an attorney, but he never got
back to Quinnipiac regarding repayment. Consequently, the
paid time was never restored. Doc. 33-5 & 40-18, ¶
40; Evarts Dep., at 198, Doc. 33-4 (Lambusta Aff.), ¶ 8.
addition to filing his workers' compensation claim,
Evarts pursued a personal injury action against MagnaKleen,
the company that installed and serviced the floor mat over
which he tripped. Doc. 33-5 & 40-18, ¶ 41. That
action settled for the sum of $275, 000, of which $84, 236.24
was paid to Plaintiff's lawyers as fees and $1, 181.77
covered costs incurred. Id. An additional $82,
081.99 was paid to Standard Fire Insurance Company to pay off
a lien, representing the amount that was given back to the
workers' compensation carrier by MagnaKleen to account
for expenses the carrier paid for Plaintiff's lost wages
and medical benefits. Id. Plaintiff retained the
balance of the settlement proceeds (approximately $107, 500).
Evarts Dep., at 205, Doc. 33-2, at 49-53 (Evarts Dep., Ex.
Quinnipiac's Motion for Summary
Motion for Summary Judgment, Quinnipiac moves for dismissal
of Plaintiff's Complaint in its entirety. Quinnipiac thus
requests summary judgment on Plaintiff's claims arising
under: (1) the Family and Medical Leave Act
("FMLA"), 29 U.S.C. §§ 2601, et
seq.; and (2) the Americans with Disabilities Act of
1990 ("ADA"), 42 U.S.C. § 12101, et
seq. Quinnipiac argues that Plaintiff has failed to
adduce "sufficient evidence in discovery to engender a
genuine issue of material fact" as to either of these
claims; and accordingly, the Court must dismiss them as a
matter of law. Doc. 33, at 1.
Quinnipiac states that "Plaintiff's FMLA claim
appears to be based on an interference theory, but there is
no evidence that his FMLA rights were impinged in any
way." Id. Specifically, a "faulty
premise" underlies Plaintiff's contention that
Quinnipiac began "running the clock on his FMLA
leave" at the wrong time. Id. Rather,
Quinnipiac "properly designated plaintiff's extended
leave of absence for a 'serious health condition' as
FMLA-covered as of the first day he was out."
Id. In addition, as to the allegation that
Quinnipiac delayed in reinstating him, "the record is
clear that plaintiff was promptly and timely restored to the
same position he held prior to the leave (modified to
accommodate his medical restrictions), at the same rate of
pay and with the same level of benefits, immediately after
appropriate medical certifications were provided."
Id., at 2. Furthermore, even had there been any
delay, Plaintiff "was fully compensated during the
entirety of his leave" so that "any delay in
restoring plaintiff to his prior job did not result in
prejudice." Id. Consequently, in the absence of
prejudice, concludes Quinnipiac, an "interference claim
will not lie." Id.
with respect to Plaintiff's ADA failure to accommodate
and/or discrimination claim, Quinnipiac argues that the claim
must be dismissed a matter of law. Plaintiff has
"challeng[ed] [Quinnipiac's] directive sending him
home after he announced he was unable to perform one of his
job duties." Id. However, that claim "is
undone by a contemporaneous doctor's note declaring
plaintiff unable to work until further notice."
Id. Also, with regard to Plaintiff's claim that
there was an "8-week lag between a note releasing him to
'sedentary' work and his return to the
workplace," Quinnipiac has a legitimate business reason
(i.e., it was "waiting on appropriate medical
certifications"), and Plaintiff has failed to gather
sufficient evidence to create "an inference of
disability-based discrimination" or to prove that
Quinnipiac's reason for the delay was a pretext for such
discrimination. Id. Quinnipiac thus requests that
the Court dismiss this claim as well. Id.
opposes Quinnipiac's motion for summary judgment and
asserts that there exist "genuine issues of material
fact with respect to whether the Defendant interfered with
the rights and benefits afforded to the Plaintiff under the
Family and Medical Leave Act; whether the Plaintiff was
afforded reasonable accommodations when required to do his
job under the Americans With Disabilit[ies] Act; and whether
the Defendant discriminated against the Plaintiff as a result
of his disability." Doc. 40, at 1.
FMLA, 29 U.S.C. § 2601, et seq., provides
employees with distinct rights to take leave under certain
medical circumstances. First, it "generally requires
covered employers to grant employees who have worked for
twelve months (or 1250 hours in twelve months) up to twelve
weeks' leave during any twelve month period for,
inter alia, a 'serious health condition that
makes the employee unable to perform the functions of the
position of such employee.'" Hale v. Mann,
219 F.3d 61, 68 (2d Cir. 2000) (quoting 29 U.S.C. §
2612(a)(1)(D)). Furthermore, the FMLA "protects an
employee from discharge or demotion by an employer if that
action is motivated by the employee's taking of leave
pursuant to the FMLA." Hale, 219 F.3d at 68
(citing 29 U.S.C. § 2614(a)(1)). The FMLA allows leave
to be taken "intermittently or on a reduced leave
schedule when medically necessary" as well as on a
full-time basis. Poitras v. ConnectiCare, Inc., 206
F.Supp.3d 736, 742-43 (D. Conn. 2016). Moreover, the statute
requires an employer to reinstate the employee to his or her
former position at the end of FMLA leave, unless the employee
is unable to perform an essential function of the job at the
end of his [or her] leave." Id.
Second Circuit recognizes two types of FMLA claim:
retaliation and interference. See Potenza v. City of New
York, 365 F.3d 165, 168 (2d Cir.2004) (per curiam). To
plead an FMLA retaliation claim, one must establish: "1)
he exercised rights protected under the FMLA; 2) he was
qualified for his position; 3) he suffered an adverse
employment action; and 4) the adverse employment action
occurred under circumstances giving rise to an inference of
retaliatory intent." Potenza, 365 F.3d at 168.
See also ...