Rolfe v. Lawrence Memorial Hosp
ORDER granting 69 Motion for Summary Judgment for failure to raise a genuine issue of material fact to support the federal retaliation claim and because the Court accordingly declines to exercise supplemental jurisdiction over the state law claims. Signed by Judge Robert N. Chatigny on 09/30/2013. (Bialek, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CASE No. 3:10-cv-80(RNC)
LAWRENCE & MEMORIAL HOSPITAL, :
RULING AND ORDER
Plaintiff Tracy Rolfe brings this action against her former
employer, Lawrence & Memorial Hospital, alleging retaliation in
violation of the Americans with Disabilities Act (ADA), 42 U.S.C.
§12101, et seq., retaliation against protected speech on a matter
of public concern in violation of Connecticut General Statutes
§31-51q, and a state law tort claim of intentional infliction of
The Hospital has moved for summary judgment,
arguing that plaintiff has failed to bring forward evidence
sufficient to raise a genuine issue of material fact in support
of her claims.
For reasons that follow, the motion for summary
judgment is granted as to the retaliation claim under the ADA.
Because plaintiff fails to raise a genuine issue of material
fact in support of the federal claim, the Court declines to
exercise supplemental jurisdiction over the state law claims.
The following facts are either undisputed or, where
disputed, taken in the light most favorable to the plaintiff.
The Admissions Nurse Position
Plaintiff was employed by the Hospital as a registered nurse
beginning in 1998.
She was diagnosed with MS in or about
September 2004, and placed on FMLA medical leave due to
debilitating symptoms including partial paralysis and blindness.
When the symptoms decreased, plaintiff returned to work, first
part-time under a special modified duty job description, then
full-time as a "Registered Nurse- Admissions Nurse" in August
This full-time position was a relatively new one,
previously held by only one other employee for a short time, and
plaintiff claims she chose it after being refused the less
physically onerous positions of case manager and nurse educator.
Plaintiff claims that when she returned to work, she continued to
be limited in her ability to walk and wore a brace, though it is
undisputed that she returned to work "full duty" with no medical
Plaintiff was adamant about her full duty status
and never asked her doctor for a note restricting her duty.
Pl.'s Dep. (ECF No. 71-2) at 54.
A job description of the admissions nurse position, dated
March 20, 2006, states that the admissions nurse "[m]ay function
as a staff nurse," and is responsible for "[p]erform[ing] other
duties as assigned or directed to ensure smooth operation of the
See ECF No. 71-11.
Attached to the job description is a
form entitled "ADA Requirements," which lists the job-specific
functions that "applicants, as well as position incumbents who
become disabled, must be able to perform . . . either unaided or
with the assistance of a reasonable accommodation. . . ."
Among the listed requirements are occasional sitting; frequent
pushing, pulling, or lifting over 100 lbs; and continuous
standing, walking, bending, climbing, kneeling, crouching,
twisting, balancing and reaching.
As described by Nancy Robbins, the Assistant Director of
Nursing ("ADN"), plaintiff's job was basically to "follow
the admissions to wherever they went and complete their
ECF No. 71-13 at 35.
"[I]f there were
not a great number of admissions . . . the ADN would find other
work within the job description for the individual to do."
As an admissions nurse, plaintiff was a member of the "float
pool," a group of nurses available for assignments on an ad hoc
basis to assist in times of heavy workloads.
testified that when she first began work as an admissions nurse
in 2006, she knew that she would be part of the float pool and
that her job would require "helping hands" work on other units.
Helping hands refers to the practice of sending a nurse to a busy
unit for a short period of time to provide assistance to regular
Plaintiff testified that she never had a problem
performing helping hands work in the overflow unit, an eight-bed
area where the least critical patients were sent if other areas
The MS Employer of the Year Email
Plaintiff's claims arise out of an August 27, 2007 email
sent to her by Pat Orce, the nurse manager of the float pool.
the email, Orce, who was actively involved in MS patient care and
support groups at the Hospital, asked for plaintiff's thoughts on
nominating the Hospital for "MS Employer of the Year."
concedes that Orce had good intent when she sent the email, but
plaintiff did not think the Hospital deserved to be nominated
because she did not feel the Hospital had been sufficiently
supportive of her efforts to return to work following her FMLA
In response to the email, plaintiff went to
Orce's floor to speak with her, but Orce wasn't there.
then spoke with her friend and colleague Deb Merola, a clinical
coordinator, and voiced her opinion that the Hospital was not
deserving of the award and that she couldn't believe she was
being asked to nominate the Hospital.
The next day, plaintiff
sent Orce an email stating "Honestly, I'm speechless.
discuss this with you later."
Subsequently, Orce called
plaintiff and said something to the effect of "Now that you've
spent 30 minutes bitching to Deb, I get it."
Orce informed Fran
Bonardi, her vice president, that she was going to drop any
further action in relation to the MS Employer of the Year and
explained that the plaintiff "feels the hospital made no
accommodation for her at all".
Bonardi responded: "I am sooo
sorry that she feels this way" and wondered if she should talk to
plaintiff because "I really don't think that we should allow her
to operate under such a false impression."
Orce replied that
although the Hospital had accommodated plaintiff, the plaintiff
disagreed, and Orce wondered if "maybe I haven't gone far enough
to help her out, . . ."
Emails- Aug. 31, 2007-Sept. 4, 2007 (ECF
No. 71-16) at 2.
The Alleged Retaliation
In the summer of 2007, shortly before the MS Employer of the
Year incident, Nancy Robbins became the ADN in charge of the
staffing office, the float pool, and the daily operations of
When Robbins took over as ADN, there were three
nurses specifically responsible for handling admissions to the
hospital: plaintiff and two staff nurses hired around the same
time as plaintiff to add workers to the float pool, Tracy
Burleigh and Ross Gardels.
Initially, these employees spent most
of their time in the Emergency Department ("ED"), where most
patients were admitted, but also served as helping hands on
different units, such as the overflow unit.
At the time Robbins
started her job, in about June 2007, the Hospital wanted to
reduce the waiting time spent by patients in the ED. Robbins
began to work on a process for moving new patients from the ED to
their beds in appropriate units more quickly and completing
admissions on the units, a program called "Patient Express."
Robbins testified that a team of about twelve ED nurses,
physicians and administrators met approximately eight times to
plan this transition.
The team did not include the nurses
involved in admissions, and plaintiff did not know there was such
As a result of the transition to the Patient Express
program, plaintiff, Burleigh and Gardels spent less time doing
admissions in the ED, more time doing admissions in other units
of the hospital, and more time performing other duties outside
Plaintiff claims that these new assignments were implemented
as retaliation for her response to the MS Employer of the Year
She claims that her work conditions "drastically changed"
as of October 2007, Pl.'s Testimony (ECF No. 71-3) at 102, and
she pinpoints the change in duties as beginning when she was
required to fill out logs about the location and number of
admissions completed per shift.
The order to have admission
nurses keep logs was sent in an email to Pat Orce and Nancy
Robbins by Kathy Kenyon, the Hospital's Director of Inpatient
See ECF No. 71-17.
Plaintiff admits that admissions
nurses as a group were required to fill out admissions logs, and
admits that asking her to fill out the logs had nothing to do
with her MS or with her complaint about the MS Employer of the
Year Email. See Pl.'s Rule 56(a)(2) Statement (ECF No. 77) ¶ 122.
Under the new process, the plaintiff was required to check
in with Robbins and the staffing office daily before she reported
to work, which she had not been required to do previously, and
Robbins began to assign her "to float to various hospital units
to work as a staff nurse for most of her shift, to work on
nursing units as 'helping hands,' or to do admissions on units
rather than in the Emergency Department."
Compl. ¶ 25.
Plaintiff claims that sending her to other units to complete
admissions was retaliatory because the shifts were longer and
required more standing or walking, leaving the patient exhausted
and in pain.
Plaintiff has testified that she took the
admissions nurse job with the understanding that she would be
based in the ED, where she could perform most of her duties
seated, and that her floating duties as a staff nurse were
supposed to be limited to the overflow unit.
had returned to work full-duty with no restrictions, she claims
she took the job only after consultation with the Hospital about
finding a position consistent with her limited ability to walk.
From the time she returned to work in August 2006 until October
2007, plaintiff was not assigned to work on the units as a staff
nurse, although she was occasionally assigned as "helping hands"
on other units for no more than a few hours.
She estimates that,
prior to the implementation of the Patient Express program, 90%
of her daily duties consisted of sedentary work doing admissions
in the ED.
Plaintiff admits that she has no idea whether Pat
Orce was involved in the change in her duties, nor does she know
whether Nancy Robbins was involved.
Statement (ECF No. 77) ¶ 104-105.
See Pl.'s Rule 56(a)(2)
Plaintiff further admits that
she cannot connect Nancy Robbins and her job assignments to the
incidents involving the MS Employer of the Year email.
Rule 56(a)(2) Statement (ECF No. 77) ¶ 106.
Plaintiff did not adjust well to the changes to her shift
She complained about the changes in emails to Orce
and refused to take assignments, failed to report to units, and
did not complete certain admission forms, explaining that she was
an admissions nurse based in the ED and that she was not required
to float to other floors to do admissions.
plaintiff that she was not based in the ED and that "when you
were hired I was clear you would need to be able to meet all the
aspects of the Float Pool job description and you fought very
hard to have yourself cleared to return to full duty."
Oct. 30, 2007-Nov. 2, 2007 (ECF No. 71-19) at 10.
On November 1,
2007, plaintiff's union representative notified the Hospital that
it was filing a grievance based on the Hospital's discriminatory
treatment of the plaintiff.
On November 9, 2007, Robbins saw plaintiff using a cane at
She told plaintiff that, due to the occupational hazards
presented by using a cane, plaintiff needed to be cleared by
Plaintiff agreed to see Dr. Ruffa, the
Hospital's medical director of occupational health.
meeting, plaintiff and Dr. Ruffa discussed the admissions nurse
Dr. Ruffa then spoke with plaintiff's treating
physician, Dr. O'Keefe.
Dr. O'Keefe told Dr. Ruffa that
plaintiff could tolerate the duties listed in the job
description, with the exception of running.
The Hospital adopted
Dr. O'Keefe's recommendation of a "no running" restriction as of
November 12, 2007.
This was acceptable to plaintiff.
were informed of this restriction, and Robbins made it clear that
there always had to be another RN on the floor with plaintiff in
case of emergency because plaintiff was not allowed to run.
spite of Dr. O'Keefe's clearance to do everything but run,
plaintiff continued to refuse assignments.
She also refused to
move her belongings from a locker in the ED to the float pool
When Robbins tried to discuss these issues with
plaintiff, plaintiff said she did not have to listen to Robbins,
began recording the conversation, and stated that she wanted her
Plaintiff received a warning on March 20, 2008 based on her
failure to report to a unit to do admissions, her refusal to move
her locker, and unprofessional conduct.
This warning was later
reduced to a non-disciplinary coaching through an arbitration
On March 27, 2008, plaintiff voluntarily accepted a
transfer to a 24-hour per week position on the orthopedic unit.
Plaintiff claims she was forced to take the position because she
was unable to continue to perform the duties of her full-time
position as they had been altered by the Hospital.
plaintiff claims the duties of this new position were more
physically strenuous than those of her pre-retaliation admissions
In July 2008, plaintiff applied for, but was
denied, transfer to an open position that would have been
consistent with her physical limitations.
left the unit on FMLA leave.
In April 2009, she
When this expired in July 2009, the
Hospital terminated the plaintiff's employment.
her administrative remedies, the plaintiff filed this action.
II. Summary Judgment
Summary judgment may be granted when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a). In seeking
summary judgment, a defendant has the initial burden of showing
that there is an absence of evidence to support an essential
element of the plaintiff's claim.
477 U.S. 317, 325 (1986).
See Celotex Corp. v. Catrett,
To overcome this showing, a plaintiff
must point to evidence that would permit a jury to return a
verdict in his favor.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
In the absence of such a showing, summary
judgment is proper, even in a discrimination case.
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)(salutary
purposes of summary judgment apply no less to discrimination
cases than to other areas of litigation).
In determining whether
summary judgment is proper, the record must be viewed in the
light most favorable to the plaintiff.
317 F.3d 351, 354 (2d Cir. 2003).
See Sheppard v. Beerman,
This requires the court to
resolve all ambiguities and draw all permissible inferences in
favor of the plaintiff.
See Stern v. Trustees of Columbia
University, 131 F.3d 305, 312 (2d Cir. 1997). However, conclusory
allegations, conjecture, and speculation are insufficient to
create a genuine issue of fact for trial.
Shannon v. N.Y.C.
Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).
A. ADA Retaliation Claim
Claims for retaliation under the ADA are analyzed under the
same burden-shifting framework established for Title VII cases.
Noel v. BNY-Mellon Corp., No. 11-4478-CV, 2013 WL 978725 (2d Cir.
Mar. 14, 2013).
i. Plaintiff's Prima Facie Case
A prima facie ADA retaliation claim requires a showing that
"(1) the plaintiff engaged in protected activity, (2) the
employer knew of this activity, (3) the employer took adverse
action against the plaintiff, and (4) a causal connection exists
between the protected activity and the adverse action."
Laidlaw Transit, Inc., 455 F. Supp. 2d 81, 89 (D. Conn. 2006)
(citing Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208,
223 (2d Cir. 2001)).
Protected Activity and Employer Knowledge
Not all forms of protest are protected by the ADA's
prohibition on retaliation.
Matima v. Celli, 228 F.3d 68, 79 (2d
"Protected activity" refers only to action taken to
protest or oppose statutorily prohibited conduct.
Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000).
Cruz v. Coach
that are not directed at an unlawful employment practice do not
constitute protected activity to establish a prima facie case of
See Wimmer v. Suffolk County Police Dept., 176 F.3d
125, 135 (2d Cir. 1999) ("Wimmer's claim of retaliation is not
cognizable under Title VII because his opposition [opposing
discrimination by co-employees against non-employees] was not
directed at an unlawful employment practice of his employer.");
Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842
F.2d 590, 594 (2d Cir. 1988) ("[A]ppellant's complaints about
Columbia's selection process for the new . . . position were
directed at something that, as it was alleged [selecting a white
woman from a pool of candidates that included several black
individuals, without more], is not properly within the definition
of an unlawful employment practice.").
While a plaintiff need
not establish that the conduct she opposed was actually a
violation of the ADA, she must have "possessed a good faith,
reasonable belief that the underlying employment practice was
unlawful under the statute."
Wimes v. Health, 157 F. App'x 327,
328 (2d Cir. 2005).
Here, plaintiff has not identified evidence from which it
could be inferred that she engaged in protected activity.
Plaintiff's theory is that "by refusing and making known her
refusal to nominate the defendant for an Employer of the Year
award and stating her reasons for such refusal to the defendant .
. . the plaintiff opposed a discriminatory practice of the
Compl. ¶ 48.
However, she does not point to
evidence showing that she objected to the Employer of the Year
email because she believed the Hospital was unlawfully
discriminating against her.
In her deposition taken February 4,
2011, plaintiff testified that her sole reason for refusing to
nominate the Hospital was "[her] belief that [she] had been
treated very badly by [the Hospital] when [she] attempted to
return to work from [her] MS related leave of absence."
Dep. (ECF No. 71-2) at 166.
Plaintiff also stated in her
deposition that "to be considered for MS employer of the year, I
mean, you have to do something special or even -- or that
somebody would consider special, and, you know, that just wasn't
Id. at 150-52.
Plaintiff had ample opportunity to
state that she opposed nominating the Hospital for Employer of
the Year because she believed the Hospital had violated the ADA,
but she did not.
Plaintiff did include with her opposition to
the motion for summary judgment an affidavit stating that because
she "receiv[ed] very little help or support from the Lawrence &
Memorial administration [in returning from MS] . . . it seemed
incredibly inappropriate that [the] hospital . . . would be
nominated for MS Employer of the Year."
1) at ¶ 10.
Pl.'s Aff. (ECF No. 77-
She also stated that she "felt this would send a
very false impression to the general public and to other people
with MS and their families."
The Hospital argues that this
affidavit should not be credited because it conflicts with
plaintiff's deposition testimony that the only reason she opposed
the nomination was because she had been "treated very badly."
Even crediting the affidavit, however, it falls short of showing
that plaintiff, in opposing nominating the Hospital for MS
Employer of the Year, possessed a good faith, reasonable belief
that she was opposing an employment practice that violated the
Nevertheless, in determining whether summary judgment is
appropriate, the Court must view the record in the light most
favorable to plaintiff, see Sheppard v. Beerman, 317 F.3d 351,
354 (2d Cir. 2003), and draw all permissible inferences in her
favor, see Stern v. Trustees of Columbia University, 131 F.3d
305, 312 (2d Cir. 1997).
Review of the record discloses an email
exchange between Pat Orce and Fran Bonardi in which Orce writes,
on August 31, 2007, "[plaintiff] feels the hospital made no
accommodation for her at all."
Emails- Aug. 31, 2007-Sept. 4,
2007 (ECF No. 71-16) at 2. In the same email exchange, on
September 4, 2007, Orce reiterated: "Tracy feels accommodations
are not made for her MS."
Orce's emails, viewed most
favorably to the plaintiff, would permit a reasonable jury to
infer that plaintiff had a good faith belief that when she
attempted to return to work following her FMLA medical leave, her
disability had not been accommodated as required by the ADA.
jury could also find that this belief was reasonable in light of
plaintiff's understanding that she had a right to accommodations
for her disability and the difficulty that she had returning to
work after her MS-related leave.
Further, these emails would
permit a jury to find that the employer knew that plaintiff was
complaining about a violation of her rights under the ADA.
Accordingly, these elements of a prima facie case are satisfied.
Adverse Employment Action
An action is "adverse" for the purpose of establishing a
prima facie case of ADA retaliation if "a reasonable employee
would have found the challenged action materially adverse, which
in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination."
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(internal quotations omitted).
While not automatically
actionable, reassignment to more arduous duties, even if within
the employee's job description, may reasonably be found to be
Id. at 71.
"Whether a particular
reassignment is materially adverse depends upon the circumstances
of the particular case, and should be judged from the perspective
of a reasonable person in the plaintiff's position, considering
all the circumstances."
Id. (internal citations omitted).
The plaintiff is not challenging her termination, merely her
reassignment to float to other units more often.
argues that plaintiff's reassignment was not an adverse
employment action because "plaintiff was undisputedly on full
duty with no job restrictions, under the full-duty admissions
nurse job description, which stated that plaintiff 'May function
as a staff nurse' and 'perform other duties as assigned and
directed to ensure a smooth operation of the unit.'" Def.'s Mot.
Summ. J. (ECF No. 70) at 16.
Thus, the Hospital argues that by
requiring plaintiff to float to other units and perform staff
nursing duties more frequently, it was merely asking her to do
While this argument has some force, the plaintiff's
testimony concerning the change in her assignments would permit a
jury to find that the change was materially adverse.
The causal connection needed for proof of a retaliation
claim can be established "(1) indirectly, by showing that the
protected activity was followed closely by discriminatory
treatment, or . . . (2) directly, through evidence of retaliatory
animus directed against the plaintiff by the defendant."
v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).
Because plaintiff's alleged reassignment occurred roughly a month
after she refused to nominate the Hospital for MS Employer of the
Year, she has met her burden of establishing an inference of
causation sufficient to establish a prima facie case of
ii. Defendant's Legitimate, Non-Retaliatory Reason
"Once the prima facie case has been made, the burden shifts
to the employer to articulate a legitimate, non-retaliatory
reason for the challenged employment decision."
Noel v. BNY-
Mellon Corp., No. 11-4478-CV, 2013 WL 978725 (2d Cir. Mar. 14,
2013) (citations omitted).
Here, the Hospital has provided a legitimate, nonretaliatory reason for assigning plaintiff to float to other
units and do admissions and staff nurse work there: the Hospital
was implementing a new process for admitting patients that
involved transferring patients to their units more quickly and
processing their admissions there. The Hospital emphasizes the
non-retaliatory nature of this change by pointing to the fact
that it initiated these changes prior to plaintiff's response to
the MS Employer of the Year email.
The Hospital also notes that
two other staff nurses who did admissions, Burleigh and Gardels,
were also affected by the new process and, just like plaintiff,
spent less time doing admissions in the ER and more time doing
admissions and serving as helping hands on other units as a
In sum, the Hospital argues, "the record is clear that
the Hospital was changing staffing in a number of respects, as to
a number of employees, for reasons of efficiency and patient
care." Def.'s Reply (ECF No. 80) at 12.
iii. Plaintiff's Showing of Pretext and "But-For" Causation
Once an employer articulates a legitimate, non-retaliatory
reason for a challenged employment decision, "the burden shifts
back to the plaintiff to point to evidence that would be
sufficient to permit a rational factfinder to conclude that the
employer's explanation is merely a pretext for impermissible
Noel v. BNY-Mellon Corp., No. 11-4478-CV, 2013 WL
978725 (2d Cir. Mar. 14, 2013) (internal quotations omitted).
Temporal proximity alone is insufficient to satisfy this burden.
El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.
Plaintiff also bears the burden of producing sufficient
evidence to support a rational finding that but for her protected
activity, she would not have been subject to retaliation. Saviano
v. Town of Westport, No. 04-CV-522(RNC), 2011 WL 4561184, at *6
(D. Conn. Sept. 30, 2011).
See also Univ. of Texas Sw. Med. Ctr.
v. Nassar, 133 S.Ct. 2517, 2534 (2013) (holding that a plaintiff
making a retaliation claim under Title VII must establish that
"his or her protected activity was a but-for cause of the alleged
adverse action by the employer").
As evidence that the new process for admitting patients was
pretextual, plaintiff points to the fact that none of the nurses
who did admissions was included in the team responsible for
developing and implementing the Patient Express program, and to
the absence of any of the minutes of the team's meetings.
Pl.'s Opp'n Mem. (ECF No. 76) at 19.
This evidence is
insufficient to sustain plaintiff's burden.
Plaintiff argues that "there are disputed issues of material
fact as to whether Burleigh and Gardels . . . were affected in
the same way by the changes that adversely affected [plaintiff]."
Id. at 20.
According to plaintiff, prior to the changes she
spent 90% of her time doing admissions work while Burleigh and
Gardels, who were employed as staff nurses, did far fewer
admissions, mostly when plaintiff was unavailable.
As a result
of the changes, plaintiff claims her admissions assignments
diminished and she ended up doing more staff work on other units
because the admissions work was going to Burleigh and Gardels.
If true, these claims could belie the Hospital's
argument that the shift reassignments were part of a new,
uniformly enforced process.
However, plaintiff's responses to
the defendant's assertions of fact undermine her argument.
plaintiff's Rule 56(a)(2) statement (ECF No. 77), she admits:
155. As time went by and the needs of the hospital changed,
plaintiff was asked to function more fully within the job
description of the admissions nurse.
156. At the time when Ms. Robbins was starting her job as
ADN, in about June 2007, the Hospital wanted to decrease the
time from admission to bed.
159. The Hospital was making a concerted effort to move
people out of the emergency department quickly, and as part
of that effort, admissions would be done on the unit more
than in the emergency department. One of the reasons for
this transition was space limitations in the Emergency
160. Another reason for the transition was that there were
patient satisfaction issues about getting patients out of
the Emergency Department.
161. One component of this plan was having admissions done
on the patient floors instead of the emergency room. This
required having plaintiff, Ms. Burleigh and Mr. Gardels (who
also were doing many admissions) go to units for admissions
at the bedside.
163. This process was "high on the Hospital’s radar."
170. All three of these employees were spending less time on
admissions as a result of this process, depending on the
Thus, plaintiff admits that the Hospital implemented a new
policy that required her to float more often, that they did so
for legitimate, non-retaliatory reasons, and that the policy
reduced admissions work for Burleigh, Gardels, and plaintiff.
light of these admissions, plaintiff's assertion that Burleigh
and Gardels may have done some admissions work that she was
available to do while she was assigned to more rigorous work as a
staff nurse, viewed in light of the entire record, does not carry
her burden of pointing to evidence sufficient to support a
finding that the new admissions process was a pretext for
Plaintiff alleges that defendants demonstrated animus
against her, which may be sufficient to establish a prima facie
case of causation, see Gordon v. N.Y. City Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000), but she does not present evidence
connecting the alleged animus to her refusal to nominate the
Hospital for MS Employer of the Year.
Instead, the evidence she
relies on to demonstrate that Orce and Robbins acted with animus
pertains to emails sent after her duties changed and after she
expressed her discontent and her supervisors were receiving
complaints about her behavior.
See Pl.'s Opp'n Mem. (ECF No. 76)
at 15-16; Pl.'s Rule 56(a)(2) Statement (ECF No. 77) ¶¶ 180, 182,
Orce's deposition testimony, on which plaintiff
further relies to allege animus, similarly relates to Orce's
reactions to plaintiff's behavior after she had already been
reassigned to more active job duties, after the alleged
retaliation had occurred.
None of plaintiff's allegations
of animus suggest that the animus arose as a response to her
reaction to the MS Employer of the Year email, much less that her
response was a but-for cause of her job reassignment. Even if
this evidence were sufficient for plaintiff to establish pretext
- for a reasonable jury to infer that the emails demonstrate
animus, and that the animus pre-dated the job reassignment such
that it motivated the change in plaintiff's duties - this
evidence of animus does not suffice to meet plaintiff's burden to
show that her refusal to nominate her employer was a but-for
cause of the reassignment.
Plaintiff has no other evidence that would permit a jury to
find that her refusal to nominate the Hospital for MS Employer of
the Year was a but-for cause of her new job assignments.
no evidence that Pat Orce was involved in her assignment changes
or that Nancy Robbins knew about the Employer of the Year email
when the assignment changes began.
Pl.'s Testimony (ECF No. 71-
3) at 102-103 ("Q: So . . . you can't connect Nancy Robbins and
your job assignments to that E-mail at all.
Moreover, although plaintiff alleges that the change in duties
began with the log-book requirement, she admits that "[a]sking
[her] to fill out logs had nothing to do with her MS, or the
alleged complaint about "MS Employer of the Year." Pl.'s Rule
56(a)(2) Statement (ECF No. 77) ¶ 122.
In light of plaintiff's
admission that she cannot connect "plaintiff's own job
assignments to the 'MS Employer of the Year' email at all", Pl.'s
Rule 56(a)(2) Statement (ECF No. 77) ¶ 106, and her failure to
present evidence establishing that her refusal to nominate the
Hospital was a but-for cause of her changed job assignments, the
claim that the Hospital retaliated in violation of the ADA is
State Law Claims
Under 28 U.S.C. § 1367(c)(3), "[t]he district courts may
decline to exercise supplemental jurisdiction over a [state law]
claim . . . if
. . . the district court has dismissed all claims
over which it has original jurisdiction."
Munck v. New Haven
Sav. Bank, 251 F. Supp. 2d 1078, 1089 (D. Conn. 2003).
plaintiff's retaliation claim under the ADA fails as a matter of
law, the Court declines to exercise supplemental jurisdiction
over plaintiff's state law claims of retaliation under Conn. Gen.
Stat. §31-51q and intentional infliction of emotional distress.
Robbins has testified that she did not become aware of the
Employer of the Year issue between plaintiff and Orce until
plaintiff filed a grievance in November of 2007, and Orce has
testified that the Employer of the Year email was "a nonissue"
that "didn’t matter to me one way or another" and "had nothing
whatsoever to do with [plaintiff’s] assignments." Orce Dep. (ECF
Accordingly, the defendant's motion for summary judgment
[ECF No. 69] is hereby granted. Judgment will enter for the
defendant dismissing the ADA retaliation claim with prejudice and
dismissing the state law claims without prejudice.
So ordered this 30th day of September 2013.
Robert N. Chatigny
United Stated District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?