United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT
W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE.
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.
City of Bridgeport moves for summary judgment on all counts
of the complaint.
reasons that follow, defendant's Motion for Summary
Judgment [Doc. #47] is GRANTED in part and DENIED in part.
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).
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.
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.
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.
her employment, plaintiff was supervised by Monquencelo
Miles. Id. at ¶11. Miles was supervised by the
director of the department, Richard Weiner. Id. at
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.
testified that her diverticulitis was symptomatic throughout
her employment with the City. [Paiva Tr. 223:4].
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, 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].
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.”
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
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.
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].
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
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, 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].
• 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
• 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;
• 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 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
• 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].