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Barbabosa v. Board of Education of Town of Manchester

Court of Appeals of Connecticut

April 23, 2019

DIANNA BARBABOSA
v.
BOARD OF EDUCATION OF THE TOWN OF MANCHESTER

          Argued February 7, 2019

         Procedural History

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

          Vincent F. Sabatini, with whom, on the brief, was James V. Sabatini, for the appellant (plaintiff).

          Alexandria L. Voccio, for the appellee (defendant).

          Elgo, Bright and Beach, Js.

          OPINION

          BRIGHT, J.

         In this employment discrimination action, the plaintiff, Dianna Barbabosa, appeals from the summary judgment rendered by the trial court in favor of the defendant, the Board of Education of the Town of Manchester, on the plaintiff's complaint, which alleged that the defendant had discriminated against her on the basis of her disability and had failed to provide her with a reasonable accommodation.[1] On appeal, the plaintiff claims that the court improperly rendered summary judgment because a genuine issue of material fact existed as to a common essential element of both of her claims, namely, whether the plaintiff could perform the essential functions of her job with or without a reasonable accommodation. We affirm the judgment of the trial court.

         The record before the court, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following facts and procedural history. In 2007, the plaintiff was hired by the defendant as a fulltime one-on-one paraprofessional. A paraprofessional generally is not responsible for initiating lesson plans, but, rather, assists a professional staff member by working directly with the students to meet the students' needs. Between 2007 and 2009, the plaintiff worked as a one-on-one paraprofessional assigned to a single student with autism at the Waddell, Buckley, Keeney, and Bowers schools. Since the fall of 2009, the plaintiff worked as a classroom paraprofessional at Robertson School.

         While working at Robertson School, the plaintiff was a member of a union, the Manchester Para/Tutor Association, which had two successive collective bargaining agreements[2] (CBA) with the defendant that outlined certain terms of employment, including working conditions, leaves of absence, and the disciplinary procedures that are relevant to the issues before us. In particular, the CBA provided that paraprofessionals, like the plaintiff, would have three personal days as well as fifteen sick days each year, and other types of leave subject to the defendant's prior approval. An absence that was taken without the available time off was classified as nonpaid leave.

         Throughout her employment with the defendant, the plaintiff had long-standing and well documented issues with absenteeism and tardiness. Over the first seven months of her employment, the plaintiff was absent for thirty days. Twelve of those days accounted for a nonpaid leave of absence that was approved by the defendant, eight days were due to personal illness, five days were absences as a result of her son's broken leg, two days were personal days, two days were unap-proved absences without explanation, and one was a professional day. In March, 2008, the plaintiff met with Edward Dillon, the elementary special education supervisor, who discussed the plaintiff's recent unexplained absences and encouraged the plaintiff to follow the proper procedures for taking prospective absences. A letter memorializing this meeting was sent to the plaintiff.

         On May 12, 2008, the plaintiff was issued a formal written warning regarding her excessive absences. Therein, Dillon expressed his concern that the plaintiff's excessive absences could ‘‘have a negative impact on the academic and behavioral growth of . . . [a particular] student in [its] district wide program for students with autism.'' In 2008, 2009, and 2010, the plaintiff received overall satisfactory annual performance reviews. Nevertheless, issues relating to her attendance continued to be a concern for the defendant. The plaintiff's 2008 review expressed the concern that she needed to improve her attendance, which ‘‘is especially important in order to provide the consistency and continuity important for the children and the program.'' On March 25, 2010, the plaintiff was issued a verbal warning regarding her tardiness over the several preceding weeks.

         Between July 1, 2011, and June 30, 2012, the plaintiff was absent for twenty-two full days and four partial days. On September 12, 2011, the plaintiff received another verbal warning, confirmed by a follow-up letter, about her excessive absences during the past year, and she was directed to follow the proper procedures for taking days off. In 2011 and 2012, the plaintiff received annual performance reviews that provided that she was meeting expectations, but that she ‘‘must improve her attendance, '' which continued to be an issue. In particular, the plaintiff's January 23, 2012 midyear evaluation gave her an ‘‘unsatisfactory'' rating for dependability and reliability, and noted that the plaintiff did not ‘‘consistently maintain the schedule established for the [two] classrooms that she serves.''

         Between July 1, 2012, and June 30, 2013, the plaintiff was absent for a total of twenty full days and five partial days. On November 16, 2012, a meeting was held between the plaintiff, a human resources specialist, Terri Smith, and two of the union copresidents, Aaliyah Blade and Kim Colburn, to discuss the plaintiff's continued absenteeism. The parties discussed the negative impact of the plaintiff's attendance on the students, and the plaintiff was instructed that she would have to provide a doctor's note or medical documentation for future absences. She was informed that she was ineligible for leave pursuant to the Family and Medical Leave Act (FMLA); 29 U.S.C. § 2601 et seq. (2012); for the ‘‘2012/2013 school year'' because she worked less than 1250 hours in the prior twelve months. She also was warned that further violations or unapproved absences could result in suspension. A letter memorializing this meeting was sent to the plaintiff. Although the plaintiff denied receiving the letter, she confirmed that it accurately described what occurred at the meeting.

         Between July 1, 2013, and April 7, 2014, the plaintiff was absent for a total of seventeen full days and six partial days. In 2013, the plaintiff received two performance reviews that generally provided that she was meeting expectations, but that she ‘‘must arrive at school on time [and] . . . [s]he also must improve her attendance.'' On December 5, 2013, the plaintiff received another verbal warning, which was confirmed in a letter, about her excessive absences. On December 17, 2013, a meeting was held between the plaintiff, Smith, Blade, Colburn, and another human resources specialist, Nilsa Dorsey, to discuss the plaintiff's continued and excessive absenteeism. The plaintiff was referred to the employee assistance program, and she was warned that further unexcused absences could result in disciplinary action. A letter memorializing this meeting and enclosing the FMLA paperwork was sent to the plaintiff.

         On January 21, 2014, the plaintiff filed an FMLA request for intermittent leave from December 23, 2013 through December 31, 2014, on the basis of her claimed serious health condition. She explained that intermittent leave was required because she was suffering from asthma flare-ups that trigger bronchitis, migraine headaches, fibromyalgia that causes excruciating joint and muscle pain with flare-ups, which causes her to not be able to work or move her arms over her head.[3] She attached to her request a certification from her health care provider, rheumatologist Barbara Kage, who detailed that the plaintiff was suffering from numbness in her hands and feet, fatigue, muscle and joint aches, pain and stiffness, and prolonged morning stiffness. Dr. Kage stated that she had referred the plaintiff to physical therapy, and for a psychiatric evaluation for anxiety and depression. Dr. Kage opined that the plaintiff would ...


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