Mirabillo v. Regional School Dist 16
ORDER granting 21 Motion for Summary Judgment. The Clerk is instructed to enter judgment in favor of defendant and to close this case. Signed by Judge Warren W. Eginton on 10/4/12. (Ladd-Smith, I.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
REGIONAL SCHOOL DISTRICT 16,
MEMORANDUM OF DECISION ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
In her complaint, plaintiff Catherine Mirabilio asserts that defendant Regional
School District 16 is liable for discrimination pursuant to the Americans with Disabilities
Act, 42 U.S.C. § 12102 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
and the Connecticut Fair Employment Practices Act, Connecticut General Statutes
(“Conn. Gen. Stat.”) § 46a-60.
In count two of the complaint alleging ADA and Rehabilitation Act claims, plaintiff
states that “beginning on January 23, 2009, and continuing without interruption
thereafter, the defendant continually ordered the plaintiff to perform physical activities
outside of her aforesaid medical restrictions, harassed and bullied the plaintiff’s
classroom assistant by ordering her not to assist the plaintiff in a variety of ways which
the defendants knew to be a necessary part of the required accommodation of the
plaintiff’s physical disability, and imposed discipline upon the plaintiff for complaining
about the aforesaid harassment.” The Court will construe plaintiff’s complaint as stating
The complaint caption appears to have misspelled plaintiff’s last name, which is
claims for failure to accommodate, disparate treatment, retaliation and hostile
environment in violation of the disability statutes.
Defendant has filed a motion for summary judgment on the complaint in its
entirety. For the following reasons, the motion for summary judgment will be granted.
The parties have submitted statements of facts, exhibits and affidavits, which
reveal the following relevant undisputed facts.
Plaintiff is a tenured culinary arts teacher in skilled trades and family and
consumer science employed by defendant at Woodland Regional High School
The essential functions of plaintiff’s position include preparing for and teaching
culinary and baking classes; making sure supplies and equipment are on hand;
ordering supplies; testing; preparation, correction and grading of exams; grading rubrics
and conducting advisory classes. Plaintiff’s duties as a culinary arts teacher require
bending, twisting, squatting, lifting and other physical work.
On January 12, 2009 plaintiff reported that she had fallen in the WRHS school
parking lot and had injured her back. Plaintiff remained out of work pursuant to doctor’s
orders from January 13 to January 20, 2009. Plaintiff returned to work on January 20,
2009. At that time, defendant provided her with a substitute teacher to cover her
classes when she left for physical therapy.
Between January 26 and January 30, 2009, plaintiff was out of work pursuant to
her medical provider’s work status summary.
On January 30, 2009, Superintendent of Schools James Agostine received a fax
from plaintiff’s medical provider regarding plaintiff’s work status. The work status
summary indicated the following work restrictions: “Alternate Position–To Tolerance”
and “Sedentary Duties.”
That same day, Agostine was informed that plaintiff had called WRHS to report
that she would require a substitute to teach her class when she returned to work on
Monday, February 2, 2009. Agostine contacted plaintiff’s workers’ compensation case
manager to verify the return to work order. He was informed that no substitute was
required for plaintiff’s return to work on February 2, 2009. Agostine contacted plaintiff
to inform her that a substitute was not necessary for her to return to work on Monday,
February 2, 2009, according to her physician’s work status summary and her case
manager. Plaintiff’s workers’ compensation case manager also informed plaintiff that a
substitute was not necessary.
On February 2, 2009, plaintiff arrived at WRHS but did not report to her
classroom or perform her teaching duties. She stayed in the Teachers’ Center until
10:47 a.m., at which time she signed out to go to physical therapy. A substitute was
hired to teach her classes.
On February 3, 2009, plaintiff faxed lesson plans to a WRHS secretary for a
substitute to use in teaching her class. That day, she arrived at WRHS but remained in
the Teachers’ Center. A substitute was hired to teach her classes.
Agostine suspended plaintiff for three days without pay. In a memorandum to
plaintiff, Agostine wrote: “I am suspending you from work without pay for three days,
February 9, 10 and 11, 2009, because of your intentional misrepresentation of the
return to work orders you received, because you misled the staff to believe you would
not be at work, thereby, requiring the district to obtain substitute teachers to teach your
classes, because you failed to perform assigned teaching duties on February 2nd and 3rd
without justification, and because you repeatedly and insubordinately defied my express
directives to you.”
Plaintiff grieved her suspension. The grievance was denied by the Board of
Education. Upon appeal to arbitration, the grievance was settled and withdrawn after
restoration of one day’s pay.
Between February 2 through February 6, 2009, a substitute teacher was hired to
cover for plaintiff’s classes while she attended physical therapy.
Plaintiff did not attend work from February 9, 2009 through April 27, 2009.
Upon her return to work on April 28, 2009, plaintiff was provided with a
classroom assistant until the end of the school year and for all of the 2009-2010 school
year. During this period, both plaintiff and the assistants were reminded that the
assistants’ functions were to help with physical activities as opposed to plaintiff’s
sedentary duties such as supervising study hall, correcting papers, placing orders for
class supplies, class instruction and answering the classroom phone.
In January 2010, plaintiff’s medical provider pronounced that she had reached
maximum medical improvement. He assigned an 11% permanent partial disability of
her lumbar spine and indicated that she could continue working although she had a
fifteen pound lifting restriction and she needed to alternate sitting and standing every
Toward the end of the 2009-2010 school year, a functional capacity evaluation
of plaintiff’s classroom duties and physical limitations was conducted. Based on that
evaluation, plaintiff’s classroom assistant was discontinued at the start of the 20102011 school year. Plaintiff was provided with an elevated chair with a footrest and
instructed to modify her curriculum to accommodate her safe weight lifting limitation.
Defendant complied with all of plaintiff’s work restrictions as they were reported
to defendant by plaintiff’s medical providers.
A motion for summary judgment will be granted where there is no genuine issue
as to any material fact and it is clear that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when
reasonable minds could not differ as to the import of the evidence is summary judgment
proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849
The burden is on the moving party to demonstrate the absence of any material
factual issue genuinely in dispute. American International Group, Inc. v. London
American International Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether
a genuine factual issue exists, the court must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). If a nonmoving party has failed to make a sufficient showing on
an essential element of her case with respect to which she has the burden of proof,
then summary judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the
nonmoving party submits evidence which is "merely colorable," legally sufficient
opposition to the motion for summary judgment is not met. Anderson, 477 U.S. at 249.
Plaintiff alleges that defendant discriminated against her based on a disability in
violation of the ADA, the Rehabilitation Act and CFEPA. Defendant asserts that plaintiff
cannot prove disability discrimination because she does not meet the statutory
definition of disabled and she received reasonable accommodation according to the
notice from her medical provider. Further, defendant alleges that she cannot prove that
defendant discriminated, retaliated against her and subjected her to a hostile
Pursuant to the ADA, a plaintiff must establish first establish that (1) the
employer is subject to the ADA; and that (2) she is an individual who has a disability
within the meaning of the statute. Sista v. CDC Ixis North America, Inc., 445 F.3d 161,
169 (2d Cir. 2006).
The ADA defines a disability as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual ....” 42 U.S.C. §
12102(1). The statute enumerates “major life activities” as including, but not limited to,
“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). The impairment must
be permanent or long-term to be substantially limiting. Farina v. Branford Bd. of Educ.,
458 Fed.Appx. 13 (2d Cir. 2011).
Section 504 of the Rehabilitation Act provides that “no otherwise qualified
individual with a disability ... shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” The
Rehabilitation Act provides that complaints of employment discrimination brought under
the Act are generally assessed according to the same standards as those under Title I
of the ADA, 42 U.S.C. § 12111 et seq. See Henrietta D. v. Bloomberg, 331 F.3d 261,
272 (2d Cir. 2003) (ADA and Rehabilitation Act claims are treated identically unless
some subtle distinction applies to the case). In fact, the Rehabilitation Act incorporates
the definition of disability set forth in the ADA. 29 U.S.C. § 705(20)(B).
The Second Circuit has declined to find temporary injuries “per se unprotected
under the ADA” but the disability calculus considers the duration of the impairment.
Troeger v. Ellenville Cent. School Dist., 2012 WL 1605532, *5 (N.D.N.Y. 2012); see
Adams v. Citizens Advice Bureau, 187 F.3d 315, 317 (2d Cir. 1999) (temporary injuries
requiring a few months off of work are too short in duration to be substantially limiting).
The record evidence demonstrates that plaintiff was impaired relative to lifting and
bending from the date of her injury in January 2009 to January 2010 when her medical
provider indicated that she had a 11% permanent partial impairment, should not lift
more than 15 pounds, and should alternate between sitting and standing every thirty
(30) minutes. Plaintiff has represented that she remains unable to engage in “biking,
gardening, household chores/cleaning, running, skiing and snow removal,” and that,
while teaching, she conducts herself more slowly and carefully and asks for assistance
to avoid aggravating her injury.
Generally, courts have not found ADA-covered disabilities based on the inability
to lift heavy objects. McDonald v. City of New York, 786 F. Supp. 2d 588, 608-609
(E.D.N.Y. 2011 )(citing cases); Hall v. Cablevision of Connecticut, L.P., 2011 WL
4829775, *4 (D. Conn. 2011) (citing cases). However, some courts have found that the
inability to sit for an hour or less may constitute a substantial limitation. Troeger v.
Ellenville Cent. School Dist., 2012 WL 3643839, *3 (N.D.N.Y. 2012).
In this instance, plaintiff has not demonstrated how she is substantially limited by
the weight restriction or the need to alternate positions except that she must work more
slowly so as to avoid aggravating the injury. However, for purposes of ruling on this
motion, the Court assumes that plaintiff has raised an inference of fact that she is
disabled in the major life activities of sitting for periods of longer than thirty minutes and
lifting heavy objects.
To the extent that plaintiff has alleged a claim of disparate treatment based on
adverse employment action, the Court finds that such claim will fail.
For purposes of ruling on this claim, the Court assumes that plaintiff can
establish a prima facie case of disparate treatment under the ADA, which requires that
plaintiff show that: (1) her employer is subject to the ADA, (2) she is disabled within the
meaning of the ADA, (3) she is otherwise qualified to perform the essential functions of
her job with or without reasonable accommodation, and (4) she suffered adverse
employment action because of her disability. Jacques v. DiMarzio, Inc., 386 F.3d 192,
198 (2d Cir. 2004).
ADA claims are subject to the familiar burden-shifting analysis of McDonnell-Douglas
Corp. v. Green, 411 U.S. 792 (1973).
If plaintiff establishes a prima facie case, defendant must articulate a legitimate,
non-discriminatory business reason for the alleged discriminatory action. Plaintiff must
then prove by a preponderance of the evidence that the supposed legitimate reason is
actually a pretext for discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
515 (1993). A plaintiff bears a minimal burden on the prima facie case and need only
demonstrate that she possesses the basic skill necessary for the performance of the
job. Sista, 445 F.3d at 171.
Plaintiff’s opposition memorandum sets forth arguments that can be construed to
assert a disparate treatment claim based on her suspension, harassment of her
assistants and reduction of her position to half-time in June 2011. However, plaintiff’s
complaint did not contain any allegation concerning the reduction of her position to halftime, and plaintiff could have earlier amended her complaint to reflect this claim. Thus,
the Court will not consider plaintiff’s claim of discrimination based on the reduction of
her position to half-time. Mauro v. Southern New England Telecommunications, Inc.,
208 F.3d 384, 386 n.1 (2d Cir. 2000); Guru Kripa Foods, Inc. v. Inter, Inc., 2012 WL
3306520 (E.D.N.Y. 2012).
Plaintiff has not adduced evidence that raises an inference that defendant’s
legitimate reasons given for its conduct are pretextual for disability discrimination. No
evidence suggests that defendant suspended her because of her disability rather than
her failure to perform her classroom duties based on recommendations that the medical
providers had indicated. Further, defendant has set forth that it was required to
reinforce the parameters of plaintiff’s classroom assistants rather than allow them to
take responsibility for plaintiff’s duties that were not limited by her impairment. The
evidence does not support plaintiff’s assertion that her classroom assistants were
harassed due to her disability or her need for accommodation. Summary judgment will
enter on these claims.
In order to establish a prima facie case of retaliation, plaintiff must show that “(1)
the employee was engaged in an activity protected by the federal disability statute, (2)
the employer was aware of that activity, (3) an employment action adverse to the
plaintiff occurred, and (4) there existed a causal connection between the protected
activity and the adverse employment action.” Sarno v. Douglas EllimanGibbons &
Ives., Inc., 183 F.3d 155, 159 (2d Cir. 1999).
Plaintiff has not raised an inference of fact that a causal connection existed
between the suspension or alleged harassment and her request for accommodation.
Further, plaintiff has not proved that defendant’s conduct with respect to such alleged
adverse action was pretextual for retaliation.
Defendant argues that plaintiff cannot prevail on her claim that it failed to
accommodate her disability in violation of the ADA and the Rehabilitation Act.
To prevail on such a claim, plaintiff would need to prove (1) that with or without
reasonable accommodation, she could perform the essential functions of the job, and
(2) that the employer had notice of the plaintiff’s disability and failed to provide such
accommodation. Lyons v. Legal Aid Soc., 68 F.3d 1512, 1515 (2d Cir. 1995). Federal
regulations provide for an interactive process by which employers and employees work
together to assess whether an employee’s covered disability can be reasonably
accommodated. 20 C.F.R. § 1630.2(o).
In her response to defendant’s Local Rule 56(a)(1) Statement of Undisputed
Facts, plaintiff agreed that defendant complied with all of plaintiff’s work restrictions as
they were reported to defendant by plaintiff’s medical providers. Defendant did not
receive medical documentation that she had a disability covered by the ADA that
required a classroom assistant when she first returned to work on February 2, 2009.
After defendant received notice of the need for a classroom assistant, it provided her
with such assistant even after she had reached her maximum recovery. Although the
classroom assistant accommodation was discontinued at the commencement of the
2010-2011 school year, plaintiff was provided with an elevated chair with a footrest and
instructed to modify her curriculum to accommodate her weight lifting limitation. Plaintiff
has provided no evidence to substantiate an assertion that she should have continued
to be provided with the accommodation of a classroom assistant in the school year
Summary judgment will enter on this claim.
Courts that have considered the merits of hostile environment claims in the
context of disability discrimination have applied the same standard utilized in Title VII
cases. Martinsky v. City of Bridgeport, 814 F. Supp. 2d 130, 150 (D. Conn. 2011).
Thus, to establish her hostile work environment claim, plaintiff must prove (1) that the
workplace was “permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently pervasive to alter the conditions of the victim’s employment.” Kassner v.
2nd Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007). Plaintiff must also show
that “a specific basis exists for imputing the conduct that created the hostile
environment to the employer.” Murray v. N.Y. Univ. Coll. Of Dentistry, 57 F.3d 243, 249
(2d Cir. 1995).
The determination of hostility is viewed according to whether “a reasonable
person would find the work environment to be hostile and whether plaintiff subjectively
perceived it to be so.” Kassner, 496 F.3d at 240. In this instance, plaintiff received the
accommodations that were recommended by her medical providers. Agostine
explained that he disciplined plaintiff because she did not appear to be performing her
job duties in accordance with the recommendations of her medical providers. No
evidence gives rise to an inference that plaintiff’s work environment was permeated with
intimidation, ridicule and insult.
The Court will decline to exercise supplemental jurisdiction over any remaining
state law CFEPA claims, which will be dismissed without prejudice. See Donniger v.
Niehoff, 642 F.3d 334, 357 (2d Cir. 2011). Because CFEPA provides for a different
definition of disability than the federal statutes, it is appropriate for a state court to
determine if plaintiff falls within CFEPA’s protection. See Bellamy v. General Dynamics
Corp., 2012 WL 1987171, *7 (D. Conn. June 4, 2012) (declining supplemental
jurisdiction over CFEPA claim and noting CFEPA’s broader definition of disability).
For the foregoing reasons, defendant’s Motion for Summary Judgment [doc. #21]
is GRANTED. Summary judgment shall enter in defendant’s favor on plaintiff’s ADA
allegations. The Court declines to exercise supplemental jurisdiction over plaintiff’s
state law CFEPA claim and therefore DISMISSES such claim without prejudice
pursuant to 28 U.S.C. § 1367(c)(3).
The clerk is instructed to enter judgment in favor of defendant and to close this
Dated this 4th day of October 2012 in Bridgeport, Connecticut.
Warren W. Eginton
Senior U.S. District Judge
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