Paiva v. City of Bridgeport

          RULING ON MOTION FOR SUMMARY JUDGMENT

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Sue Ann Paiva brings a seven count complaint against her former employer, the City of Bridgeport (the “City”), alleging wrongful discharge, hostile work environment and retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq., and the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §§46a-60 et seq. She also alleges wrongful discharge under Section 223 of the Charter for the City of Bridgeport.^[1]

         Defendant City of Bridgeport moves for summary judgment on all counts of the complaint.

         For the reasons that follow, defendant's Motion for Summary Judgment [Doc. #47] is GRANTED in part and DENIED in part.

         STANDARD OF LAW

         A motion for summary judgment may be granted only where there are no issues of material fact in dispute and the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party may satisfy his burden “by showing- that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation citations and marks omitted). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). In order to defeat the motion for summary judgment, she must present such evidence as would allow a jury to find in her favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). Merely verifying the conclusory allegations of the complaint in an affidavit, however, is insufficient to oppose a motion for summary judgment. Zigmund v. Foster, 106 F.Supp.2d 352, 356 (D. Conn. 2000)(citing cases).

         When reviewing the record, the court resolves all ambiguities and draws all permissible factual inferences in favor of the party against whom summary judgment is sought. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009). If there is any evidence in the record on a material issue from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is inappropriate. Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004). However, the existence of a mere “scintilla” of evidence supporting the plaintiff's position is insufficient to defeat a motion for summary judgment. Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008). And because a court is foreclosed from “mak[ing] credibility determinations or weigh[ing] the evidence” at the summary judgment stage, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), it must “disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. at 151. Thus, in “a discrimination case where intent and state of mind are in dispute, summary judgment is ordinarily inappropriate, ” Carlton v. Mystic Transp. Inc., 202 F.3d 129, 134 (2d Cir. 2000), provided that the nonmovant has done more than “simply show that there is some metaphysical doubt as to the material facts, ” Plotzker v. Kips Bay Anesthesia, P.C., 745 Fed.Appx. 436, 437 (2d Cir. 2018) (summary order) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “A trial court should exercise caution when granting summary judgment to an employer where, as here, its intent is a genuine factual issue.” Carlton, 202 F.3d at 134.

         STATEMENT OF FACTS

         The following facts are taken from the parties' statements of material facts not in dispute, see Def's Local Rule 56(a)(1) Stat. [doc. #47-1]; Pl's Local Rule 56(a)(2) Stat. [doc. #58]; and from exhibits submitted in connection with the Motion for Summary Judgment. Unless otherwise indicated, these facts are not contested. Additional facts will be introduced as necessary in the Court's analysis of plaintiff's claims.

         On September 28, 2015, plaintiff commenced employment with the City of Bridgeport in the position of Benefits Coordinator. [Miles Aff. ¶6]. Plaintiff was employed for a probationary period of six months, pursuant to the provisions of §213(a) of the City Charter. Id. at ¶10. The probationary term expired on March 28, 2016, six months from the start of plaintiff's employment. Id. at ¶10.

         Throughout her employment, plaintiff was supervised by Monquencelo Miles. Id. at ¶11. Miles was supervised by the director of the department, Richard Weiner. Id. at ¶5.

         Plaintiff suffers from a physical impairment, diverticulitis, which substantially limits one or more of her major life activities, including major bodily functions of the digestive system. [Doc. #47 at 20 (defendant admitting for purposes of summary judgment that plaintiff's diverticulitis is a “disability” under the ADA and CFEPA)]. The City admits, for purposes of summary judgment, that it is subject to the ADA and CFEPA; that plaintiff was disabled within the meaning of the ADA and CFEPA; and that plaintiff was qualified for the position with or without a reasonable accommodation. Defendant further admits that under CFEPA, plaintiff was a member of a protected class and qualified for the position. Id.

         Paiva testified that her diverticulitis was symptomatic throughout her employment with the City. [Paiva Tr. 223:4].

         Plaintiff's sexual orientation is homosexual, which is known to the defendant through plaintiff's conversations with her supervisor Miles. [Miles Aff. ¶8]. Plaintiff notified Miles of her sexual orientation sometime after Thanksgiving, when she told Miles that she broke up with her girlfriend. [Paiva Tr. 47:19-25].

         Mid-October 2015

         In mid-October, when Paiva arrived at work before the 9:00 AM start of the workday, she experienced an episode of diverticulitis requiring her to use the restroom facilities. [Paiva Tr. 45-46]. Upon reporting to her desk after 9:00 AM, plaintiff notified Miles, her supervisor, that she had a physical impairment which necessitated use of the bathroom facilities at unplanned times and that the episodes were likely to reoccur. [Paiva Tr. 45:25-46:5-8]. Miles advised plaintiff that “if she needed to use the restroom that she could just go and did not have to notify anyone that she had stomach issues.” [Miles Aff. ¶30]. The parties dispute whether Paiva used the term diverticulitis to describe her impairment. [Paiva Tr. 46:5-8, 54:10-13; 216:24-25:1-3; Miles Aff. ¶30].

         In late October 2015, plaintiff met with Miles to discuss her work progress. [Miles Aff. ¶17; 105:18-106:1-6]. Miles “responded that given that she had only been on the job a short period of time that she was doing fine.” Id. ¶17.

         November 13, 2015

         On November 13, 2015, at approximately 10:55 AM, plaintiff experienced another episode of diverticulitis and left the office to use the restroom. [Paiva Tr. 217:24-25]. After using the restroom, Paiva stepped outside the building taking five minutes of her fifteen minute morning break. [Paiva Tr. 219:7-16]. Miles initially told plaintiff that her break times were flexible. [Paiva Tr. 221:1-14; 223:17-21;224;7-10]. Thereafter, Miles instructed her that work breaks were only permitted between 10:00 AM to 11:00 AM and 3:00 PM to 4:00 PM; and that lunch was from 1:00PM to 2:00 PM. [Doc. #17 at ¶60; Paiva Tr. 224:18-25]. Paiva testified she was directed to report to Miles every time plaintiff left her desk whether to use the restroom, take breaks or lunch, attend meetings or take days off. [Paiva Tr. 227, 233, 234]. Plaintiff inquired why Miles fixed the times for her breaks when previously Miles informed the employees of the Benefits Department that break times would be flexible. [Doc. #17 at ¶61; Paiva Tr. 223:11-16; 234:9-21]. Paiva testified there was no written policy regarding breaks. [Paiva Tr. 366:15-22]. The parties dispute whether Miles fixing break times and lunch hour and/or imposing a reporting requirement is evidence of discriminatory animus.

         November 23, 2015

         On November 23, 2015, plaintiff completed a self-evaluation at Miles' request. [Def. Ex. J; Paiva Tr. 211]. The evaluation was provided to Miles and forwarded to Richard Weiner, the director of the department. Weiner did not review the evaluation with Paiva. [Weiner Aff. ¶13; Paiva Tr. 260 at 5-8]. Neither Miles nor Weiner ever discussed the self-evaluation with plaintiff. [Paiva Tr. 374:15-25-375:1-13].

         December 4, 2015

         On December 4, 2015, plaintiff received an e-mail from Miles stating that whenever plaintiff left the office, she must notify her or, if she were not available, the Benefits Department's receptionist. [Pl. Ex. 4]. When plaintiff asked Miles if the new reporting rule applied to restroom use, Paiva noted that Miles responded, “any time you leave the office. So yes, even with restroom breaks.” Id. Paiva testified there was no written reporting policy. [Paiva Tr. 366:9-14].

         After this date, plaintiff experienced additional bouts of diverticulitis and, pursuant to Miles' instructions, was required to go to Miles' office and report when she was going to use the restroom. Paiva testified that she would “stand there and wait for [Miles] to acknowledge the fact that I was standing there needing to use the restroom. And then when she did, be told, I can see you, just go and do what you need to do. But if I hadn't said anything, I would have been reprimanded for that as well” [Paiva Tr. 200:5-12]. Miles never counseled or documented her claim that plaintiff was taking numerous breaks. The parties dispute that the reporting requirement is evidence of discriminatory animus.

         December 28, 2015

         On or about December 28, 2015, upon her return from vacation, Miles spoke to Paiva about an email plaintiff sent to Weiner on December 24, 2015, notifying him that she was in the emergency room and would report to work as soon as she was released. [Paiva Tr. 349:19-25-350:6]. According to Paiva, the first thing that Miles did “[w]hen she came back...was walk directly over to my cubical and started yelling at me for having not put her on a copy. That Richard [Weiner] was not my supervisor. She was. And she needed to know in addition to him, that she should be on a copy of all things like that at all times, regardless of whether she was there or not.” [Paiva Tr. 350:7-15].

         January 19, 2016

         On January 19, 2016, following an email exchange between Miles and Paiva, plaintiff testified that Miles “came over to my office and told me that my question had no merit. I had no point and to pretty much just drop it. It had nothing to do with me. That I was not the one that was making the decision.” [Paiva Tr. 2257:19-24]. “[T]he manner in which she did it was intimidating and harassing.” [Paiva Tr. 258:8-9]. She testified that Miles stood over her, hovering and wagged her finger at her. [Paiva Tr. 258:10-12].

         Allegations in Dispute

• Miles averred that Paiva “constantly requested that she be trained” and “constantly would ask questions and make inquiries” which “frustrated” Miles because she “was very busy and had many responsibilities associated with [her] job.” [Miles Aff. ¶18]. Miles averred “[i]f I was short or terse with Ms. Paiva when she asked a question or when she requested training, it was not because of her claimed disability or because of her sexual orientation but was because I was very busy.” [Miles Aff. ¶18]. Paiva testified “[s]o it got to the point where I didn't know whether the next thing I did was going to bring the wrath of Miss Miles down on my back.”[Paiva Tr. 92:1-4]. The parties dispute whether this is evidence of discriminatory animus.

• Q: And when you say she treated you in a hostile manner, describe to me what she would do?

A: “She would take her finger and point her finger and shake it at me (indicating) and tell me to go back to my office and sit down and do whatever it was I was doing over there. And she would come to me when she was ready to.” [Paiva Tr. 193:1-9]. She stated, “It's not necessarily just the things that she told me, it's the manner in which she told me and the reason which brought about her having told me.” [Paiva Tr. 239]. Paiva attributed Miles' treatment to her disability and sexual orientation. [Paiva Tr. 194:4-7, 13; 198:16-18; 239:12-15; 240:3-10; 240:12-20].

• Miles directed Paiva to write the number 2 and 8 more clearly on an invoice calculation and criticized her for abbreviating the word street, failing to include identification numbers on enrollment forms on Cobra packages. [Miles Aff. ¶21; Paiva 89:20-90; 274 9-19]. The parties dispute whether discriminatory animus was the reason for Miles' direction.

• Miles imposed reporting requirements whenever plaintiff left the office. Paiva testified the reporting requirements were not an accommodation for her disability but actually a deterrent and unreasonable. [Paiva Tr. 246:19-25-246:1-6 and 20-24]. The parties dispute whether discriminatory animus was the reason for the reporting requirements.

• Miles took away job responsibilities from Paiva, such as COBRA packages, anything to do with medical, dental, prescriptions, termination packages and age out packages and invoicing for medical, dental and prescriptions. [Miles Aff. ¶22; Paiva Tr. 206:7-13]. Paiva testified, that by December 24, “I was told to find something else to do and keep myself occupied. Mr. Weiner went so far as to tell me to read a magazine if I had to.” [Paiva Tr. 206:14-20]. The parties dispute whether Miles taking away job responsibilities is evidence of discriminatory animus.

• In mid-December 2015, when a large number of City employees were laid-off, Paiva was asked to assemble termination packets for 23 employees. [Paiva Tr. 67:19-68:19]. Paiva stated that she was instructed by Miles to include a life conversion form in each packet. [Paiva Tr. 68:1-4]. Miles reviewed the assembled termination packets and upon discovery that the life conversion form wasn't completed Miles “started berating” Paiva with regards to not completing part of the form prior to its insertion. [Paiva Tr. 68:14-19]. Paiva contends that she received no training regarding this form and when she pointed this out to Miles “she became more agitated” and upset [Paiva Tr. 69:2-16, 83:21-22, 86:16-17 (“she was either rude [or] belittling me”)]. “She never sat down with me and told me how I did something incorrectly and then gave me back the item to fix.” [Paiva Tr. 11-17]. The parties dispute whether Miles taking away job responsibilities is evidence of discriminatory animus.

• Paiva testified that “My claim is [Miles'] behavior toward me and everything that happened during the period of time that I was employed prior to that. Not being recommended for hire was based on her discriminatory behavior with regards to my sexual orientation and my physical disability.” [Paiva Tr. 142:4-11].

         Reported Conduct

         December ...