Perry v. Dept of Corrections

Filing 56

RULING AND ORDER granting 42 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 3/31/12. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LEO PERRY,
Plaintiff,
V.
DEPARTMENT OF CORRECTION,
Defendant.

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Case No.

3:09-CV-223(RNC)

RULING AND ORDER
Plaintiff brings this action under Section 504 of the
Rehabilitation Act of 1973 against his former employer, the
Connecticut Department of Correction (“DOC”), claiming that his
employment as a correction officer was terminated on the basis of
his disability: a venous angioma associated with seizures and
loss of consciousness.

Defendant has moved for summary judgment

arguing that plaintiff cannot make out a prima facie case under
the Act.
I.

I agree and therefore grant the motion.

Facts
The following relevant facts are undisputed or, where

disputed, taken in the light most favorable to the plaintiff.
Plaintiff was hired by the DOC as a correction officer trainee in
1994.

On July 11, 1995, before his working test period was

complete, he was terminated for being inattentive on post.

He

was rehired in 2001.
Plaintiff was suspended for 25 days as a result of three
incidents that occurred in 2006.

In one incident, a superior

claimed to have seen plaintiff asleep in an office while on duty.

The windows of the office were covered with paper.1

An arbiter

upheld plaintiff’s 25-day suspension, noting that the Table of
Standard Penalties indicates that dismissal is the penalty for
sleeping on duty.

Plaintiff was warned that future violations

would result in dismissal, and he was advised to seek guidance
from the DOC's Employment Assistance Program if he was having
personal difficulties.
On July 16, 2007, at 11:54 p.m., Lt. Charles Fritz found
plaintiff sleeping in an office while on duty.
reclined in a chair with the lights off.

Plaintiff was

His feet were propped

on a desk, his arms were folded, and he was snoring.

Fritz

videotaped plaintiff in this position for about ten minutes.
Some time after waking, plaintiff told Fritz he was having a
medical incident and needed medical attention.

Plaintiff had

dizziness and chest pains as well as numbness in his legs.

He

was taken to the hospital and kept overnight for monitoring as a
precautionary measure against a possible heart attack.

Upon

release, he was diagnosed with a syncopal episode, or temporary
loss of consciousness.
The next day, plaintiff was placed on administrative leave
while his conduct was investigated.

1

The investigation found a

In his deposition, plaintiff denied that he was asleep
during this incident. He acknowledged that the windows of the
office were covered but claimed he did not cover them. He said
that his supervisor lied about the incident because she did not
like him.
2

number of violations, including inattentiveness.

In light of the

July 16 incident and plaintiff’s prior disciplinary record, the
DOC notified him on October 26, 2007, that he was terminated
effective November 9, 2007.
That November, plaintiff was diagnosed with a venous
angioma, a prominent vein in a deep brain structure, which can be
associated with seizures and loss of consciousness.

He

determined that he had been having three or four small seizures
per day since approximately 1994, although he was not aware of
them, and he had not lost consciousness at work prior to the July
2007 incident.

The seizures could cause him to lose

consciousness for up to 15 to 30 minutes.

Plaintiff’s doctor

restricted plaintiff’s driving for six or seven months, citing
public safety concerns.

He began to treat the plaintiff, trying

several drugs unsuccessfully before starting him on Topamax.
With the Topamax, plaintiff’s condition improved.

As of the time

of his deposition in November 2009, plaintiff was having seizures
no more than once every one to two months.

He still suffered

from migraine headaches.
At the time of the incident on July 16, 2007, plaintiff was
not aware he had a medical condition that caused seizures or loss
of consciousness, nor had he received treatment for any such
condition.

He was not diagnosed until November 2007, after the

decision to terminate his employment had been made.

3

Plaintiff

testified that after the incident of July 16, 2007, he asked for
an accommodation from someone at the DOC, but he did not specify
what accommodation he requested or from whom he requested it.
II.

Discussion
A court will grant summary judgment if the movant shows

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
P. 56(a).

Fed. R. Civ.

The evidence must be viewed in a light most favorable

to the party opposing summary judgment.

Gummo v. Village of

Depew, 75 F.3d 98, 107 (2d Cir. 1996).

However, “[w]here the

record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for
trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986) (internal quotation marks omitted).

In

this case, the record does not permit a finding that defendant is
liable under the Rehabilitation Act.
Claims under the Rehabilitation Act are analyzed using the
same burden shifting analysis applicable to Title VII employment
discrimination claims.

Reg’l Econ. Cmty. Action Program, Inc. v.

City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002).
plaintiff must first establish a prima facie case.

The

Id. at 49.

To establish a prima facie case of discriminatory termination,
plaintiff must show that (1) he is an individual with a
disability within the meaning of the Act, (2) he was otherwise

4

qualified to perform the job, (3) he was discharged solely on the
basis of his disability, and (4) the employer received federal
funds.

Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir. 2003);

Borkowski v. Valley Centr. Sch. Dist., 63 F.3d 131, 135 (2d Cir.
1995).

Plaintiff has not made this showing.

“Individual with a Disability”
A disabled individual under the Act is one who (1) has a
physical or mental impairment that substantially limits one or
more of his major life activities, (2) has a record of such an
impairment, or (3) is regarded as having such an impairment.

29

U.S.C. § 705(20)(B) (1998), amended by 122 Stat. 3558 (2008); 42
U.S.C. § 12102(1) (1990), amended by 122 Stat. 3553 (2008);
Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 147 (2d Cir. 2002).
Plaintiff does not argue that he had a record of an impairment or
was regarded as having an impairment.

Instead, he argues that

his impairment substantially limited a major life activity.

More

specifically, he argues that his disorder impaired his ability to
remain conscious and thereby substantially limited his ability to
work.

Working is a major life activity.

See Colwell v. Suffolk

Cnty. Police Dep’t, 158 F.3d 635, 642 (2d Cir. 1998).
Viewing the record in a manner most favorable to the
plaintiff, I agree that his alleged disability substantially
limited his ability to work as a correction officer.

Plaintiff’s

disorder caused him to commit a serious violation at work -

5

inattentiveness.

Crediting his testimony, and giving him the

benefit of all reasonable inferences, his disorder resulted in
several seizures a day for over a decade, and made it likely he
would commit another violation.

Therefore, for purposes of the

present motion, I conclude that plaintiff’s impairment
substantially limited his ability to perform his job as a
correction officer.
However, the pertinent inquiry is not whether the plaintiff
was unable to perform his specific job.

“When the major life

activity under consideration is that of working, the statutory
phrase ‘substantially limits’ requires, at a minimum, that
plaintiffs allege they are unable to work in a broad class of
jobs.”
(1999).

Sutton v. Unitred Air Lines, Inc., 527 U.S. 471, 491
Plaintiff has not presented evidence that he could not

work in other jobs for which he was qualified by his education,
experience and training.

In the absence of such evidence, I

conclude that a reasonable jury could not find that his disorder
prevented him from working in a broad class of jobs.
“Otherwise Qualified”
The Act requires a disabled plaintiff to establish that he
was otherwise qualified for the position.

See Shannon v. N.Y.C.

Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).

An individual is

not otherwise qualified for a job if he is unable to perform an
essential function of the job, either with or without a

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reasonable accommodation.
Borkowski, 63 F.3d at 135.

Shannon, 323 F.3d at 99-100;
To determine if a function is

essential, the court must examine (1) whether the employer
actually required employees in the position to perform the
function and (2) whether removing the function would
fundamentally alter the position.

Shannon, 332 F.3d at 101.

Courts give considerable deference to employers’ views of
required qualifications.

Id. at 100.2

Defendant has presented ample evidence that it required
correction officers to be attentive at all times while on duty.
DOC regulations explicitly require attentiveness, and plaintiff
was disciplined for inattentiveness.

Permitting correction

officers to be inattentive would fundamentally alter the
position.

Therefore, without an accommodation, plaintiff was not

otherwise qualified for the position of correction officer.
Plaintiff argues that with a reasonable accommodation, he
could have sought treatment and returned fully qualified to work.
In his brief, plaintiff asserts that he asked to use his

2

Defendant argues that plaintiff was not qualified,
analogizing this case to others involving plaintiffs who were
unqualified because they required frequent and often
unpredictable absences from work. See, e.g., Carr v. Reno, 23
F.3d 525, 531 (D.C. Cir. 1994); Howard v. N. Miss. Med. Ctr., 939
F. Supp. 505, 509 (N.D. Miss. 1996). I do not think these cases
are on point. Plaintiff’s disorder results in occasional
inattentiveness, not repeated and unpredictable absences. Even
so, plaintiff’s inattentiveness was sufficient to render him
unqualified, as discussed infra.
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accumulated sick leave to obtain treatment.
that at his deposition.

But he did not say

Viewing the record most favorably to the

plaintiff, a reasonable jury could not find that he asked to use
his sick leave for diagnostic treatment.
Further, the record does not support a finding that
plaintiff’s 50 days of sick time – even added to his
administrative leave – would have allowed him to return to the
DOC able to work.

Two months after plaintiff’s termination, his

doctor had just started him on Topamax.

In November 2009,

plaintiff stated that in the past year or so, his seizures had
been much less frequent, indicating that in January 2008, he was
still having seizures.
“Terminated Solely on the Basis of Disability”
To sustain his claim under the Rehabilitation Act, the
plaintiff must have been discriminated against solely because of
his disability.
49.

Reg’l Econ. Cmty. Action Program, 294 F.3d at

Defendant argues that even if plaintiff’s impairment

constituted a disability, it could not have fired him on the
basis of his disability, as it was not even aware of the
impairment at the time.

I agree.

Plaintiff was notified of his

impending termination in October 2007; however, he was not
diagnosed with a venous angioma until November 2007.

Therefore,

defendant could not have known of plaintiff’s impairment when it
decided to terminate his employment.

8

Plaintiff submits that he has a valid claim because he was
fired based on a symptom of his disability – losing consciousness
while at work.

He argues that if an employer fires a plaintiff

for conduct causally related to a disability, it can be liable
under the Rehabilitation Act.

See Teahan v. Metro-North Commuter

R.R. Co., 951 F.2d 511, 515 (2d Cir. 1991).
I disagree with plaintiff’s reading of Teahan.

In that

case, the plaintiff told his employer about his disabling
substance abuse problems before he missed several days of work.
The employer pursued termination – even after Teahan went to
rehabilitation and did not miss a day of work from the end of
January through April – and fired him in April.

The court said

that if Teahan’s absenteeism was caused by his substance abuse
problems, then terminating him based on his absenteeism was
equivalent to terminating him based on his handicap.

If an

employee had a limp, the court noted, it would be similarly
violative for the employer to terminate him based on a loud
“thumping” when the employee walked down the hall, as the
thumping would be caused by the employee’s disability.

It would

be a mistake to “allow an employer to ‘rely’ on any conduct or
circumstance that is a manifestation or symptomatic of a
handicap, and, in so doing, avoid the burden of proving that the
handicap is relevant to the job qualifications.”
F.2d at 517.

9

Teahan, 951

The employer in Teahan knew of the plaintiff’s substance
abuse problems.

That knowledge exposed Teahan to potential

stereotyping, and one of the key goals of the Rehabilitation Act
is “to ensure that handicapped persons are not victimized in the
employment context by archaic or stereotypical assumptions
concerning their handicap.”

Id. at 518.

Under the Act, then, an

employer may need to allow for minor or temporary performance
difficulties to avoid stereotyping.

However, an employer cannot

be expected to inquire into possible disabilities every time an
employee exhibits poor performance.

Circuit courts have agreed

that if an employee exhibits poor performance not obviously
related to a disability, the employer may take adverse action
against the employee without incurring liability.

See Hedberg v.

Ind. Bell Tel. Co., 47 F.3d 928 (7th Cir. 1995) (employer not
liable under the ADA for firing plaintiff for tardiness and
laziness when it did not know of plaintiff’s amyloidosis);
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178 (6th Cir.
1993) (hospital not liable under the Rehabilitation Act for
firing a doctor caught stealing when it did not know of his
bipolar disorder); see also Heilweil v. Mount Sinai Hosp., 32
F.3d 718, 724-25 (2d Cir. 1994) (termination on the basis of
asthma not violative because asthma is not a disability under the
Act, and employer cannot be held liable on the basis of new
evidence that plaintiff was actually suffering from a more

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serious sinus condition, when neither the plaintiff nor her
employer were aware of the serious condition at the time of
termination).3
Here, plaintiff’s impairment was not diagnosed until after
the decision was made to terminate his employment.

Temporary

unconsciousness – especially when it so closely resembles
sleeping – is not clearly a symptom of a disability.

Plaintiff’s

hospital visit following the incident of July 16, 2007, and the
medical records provided to the DOC, were not sufficient to put
his employer on notice of his impairment.

The medical records

prior to the date defendant decided to terminate plaintiff’s
employment do not include a venous angioma diagnosis, nor do they
indicate that plaintiff had a recurring problem with loss of
consciousness.

See Ragin v. E. Ramapo Cent. Sch. Dist., No. 05

Civ. 6496(PGG), 2010 WL 1326779, at *20 n.14 (S.D.N.Y. Mar. 31,
2010); Watson v. Arts & Entm’t Television Network, No. 04

3

See also Matya v. Dexter Corp., No. 97-CV-763C, 2006 WL
931870, at *8 (W.D.N.Y. Apr. 11, 2006), aff’d 250 Fed. Appx. 408
(2d Cir. 2007) (“The employer cannot be expected to infer a
disability for purposes of the NYSHRL or the ADA on the basis of
plaintiff’s personal problems and performance deficits.”);
Kolivas v. Credit Agricole, No. 95 Civ. 5662 (DLC), 1996 WL
684167 (S.D.N.Y. Nov. 26, 1996), aff’d 125 F.3d 844 (2d Cir.
1997) (analyzing a claim under the ADA; finding defendant not
liable when supervisor had begun termination process before
learning of employee’s depression).
11

Civ.1932(HBP), 2008 WL 793596, at *10 (S.D.N.Y. Mar. 26, 2008).4
III. Conclusion
Accordingly, defendant’s motion for summary judgment (doc.
42) is hereby granted.

The Clerk will enter judgment for the

defendant and close the case.
So ordered this 31st day of March 2012.

/s/ RNC
Robert N. Chatigny
United States District Judge

4

The conclusion that plaintiff was not fired on the basis
of a disability is consistent with a neutral arbiter’s decision
finding that he was fired for just cause. The arbiter found that
plaintiff did not faint on July 16, 2007, but instead was
inattentive to duty, as evidenced by the video showing him
snoring with his feet on the desk. The decision of the neutral
arbitrator bolsters my conclusion that plaintiff cannot prove he
was fired in violation of the Act. See Collins v. New York
Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002).
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