Vera v. Waterbury Hosp

Filing 50

ORDER granting 36 MOTION for Summary Judgment by Waterbury Hosp. Signed by Judge Warren W. Eginton on 3/28/13. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAMES VERA,
Plaintiff,
v.
WATERBURY HOSPITAL,
Defendant.

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3:10-cv-01417-WWE

MEMORANDUM OF DECISION ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff James Vera filed this eight count action against defendant Waterbury Hospital
alleging disability and sexual orientation discrimination. Counts two and eight have been
dismissed. Defendant now moves for summary judgment on the six remaining counts, which
allege violation of: (1) the Family Medical Leave Act (“FMLA”); (3) the Americans with
Disabilities Act of 1990; (4) the Rehabilitation Act of 1973 (“Rehab Act”); (5) the Connecticut
Fair Employment Practices Act (“CFEPA”); (6) Conn. Gen. Stat. § 46a-81c (sexual orientation
discrimination); and (7) Connecticut’s common law with reference to intentional infliction of
emotional distress. For the following reasons, defendant’s motion for summary judgment will be
granted.
BACKGROUND
Plaintiff James Vera is a homosexual, white male. He was employed by defendant
Waterbury Hospital from April 15, 2002, to August 7, 2009. Plaintiff began his employment
with defendant as a respiratory therapist on the third shift, which ran from either 7:00 p.m. to
7:00 a.m. or 11:00 p.m. to 7:00 a.m. Beginning on or about October 19, 2003, he worked as a
polysomnographic specialist, hereinafter referred to as a “sleep tech,” also on the third shift (7:00
p.m. to 7:00 a.m.). All sleep techs are required to work the third shift.

Sleep techs oversee and monitor the sleep studies conducted at defendant’s Sleep Lab
when patients are sleeping. A sleep study records many aspects of sleep, including breathing
patterns, snoring, heartbeat, oxygen levels, leg movements, brain waves and total sleep quality.
Testing begins in the early evening when the sleep tech applies the monitor leads to the patient
and explains the process to the patient. The sleep tech continues to monitor the patient while he
or she is sleeping and follows the testing through the night in the control room next to the
bedrooms.
Defendant asserts that the sleep tech position is necessarily a night-shift position, but
plaintiff contends that sleep techs may be trained to work the day-shift as “scorers.” Scorers
work the day shift from 8:00 a.m. to 4:30 p.m. One of their primary responsibilities is to score
the sleep studies conducted by the sleep techs on the night shift. Scorers require more training
than general sleep techs.
From January 2008 to May 2012, there have been no vacant scorer positions, and plaintiff
admits that he has not been trained or certified to be a scorer.
Plaintiff’s Alleged Disability
Plaintiff asserts that he suffers from “heart disease” which he claims is based on a
preliminary diagnosis of “hypertrophic cardiomyopathy” and a second diagnosis of
“hyperdynamic left ventricle with characteristics of hypertrophic cardiomyopathy.”
According to plaintiff’s testimony, in 2008, his doctors, Dr. Mark Schoenfeld and Dr.
Joseph P. Morley, thought that plaintiff suffered from hypertrophic cardiomyopathy. Plaintiff
subsequently contacted Dr. Martin Maron to get a second opinion. Plaintiff testified that Dr.
Maron could not understand how hypertrophic cardiomyopathy could be diagnosed without an
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MRI or stress echocardiogram, neither of which had been performed on plaintiff.
Plaintiff then went to see another cardiologist, Dr. Assad Rizvi. Dr. Rizvi directed that an
MRI be taken of plaintiff’s heart and that plaintiff undergo a stress echocardiogram. Plaintiff
testified that Dr. Rizvi concluded that plaintiff did not exhibit all of the characteristics of
hypertrophic cardiomyopathy, but instead had hyperdynamic left ventricle with characteristics of
hypertrophic cardiomyopathy. After plaintiff started treatment with Dr. Rizvi, he did not return
to Dr. Morley or Dr. Schoenfeld.
Plaintiff testified that there are no symtoms of hypertrophic cardiomyopathy, but there are
symtoms of hyperdynamic left ventricle. Plaintiff’s symptoms include the sensation of his heart
racing and skipping a beat, shortness of breath, a “black curtain felling of going to pass out” and
passing out.
With respect to shortness of breath, plaintiff remembers only one specific episode where
he suffered from shortness of breath while working at the hospital. At other times, plaintiff
would feel short of breath while climbing stairs.
Plaintiff describes the black curtain sensation as feeling as if he’s going to pass out. He
testified that he experienced the sensation about half a dozen times, or once a year, from 2002 to
2008. Plaintiff testified that he only actually passed out, or lost consciousness, on at most three
occasions. The first time was in February 2008 at his home. After sprinting up the stairs,
plaintiff sat on the edge of his bed before passing out. Earlier that day, plaintiff consumed a large
quantity of caffeine and smoked marijuana. Plaintiff thinks he may have passed out a second
time in May 2009 while sitting in his chair at the Sleep Lab but isn’t certain that he did not
simply fall asleep.
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Plaintiff has not disclosed any expert witnesses, medical or otherwise.
Leave of Absence
On May 21, 2009, plaintiff began a leave of absence from the Hospital. One week into
the absence, plaintiff saw his primary care physician, Dr. Jose Orellana, who gave plaintiff a note
stating that plaintiff would be out of work from May 21, 2009, to July 20, 2009. On August 5,
2009, Dr. Orellana prepared a note stating, in part, that “James M. Vera has been physically and
mentally available to work full time since June 15, 2009. The only restriction for work is that he
may not work a night shift job.”
Plaintiff testified that since 2002 he has been able to care for, feed, bathe, and cook a
meal for himself, as well as brush his teeth, shop for clothes, drive a car, and do laundry. Since
his last day worked at defendant Hospital on May 20, 2009, plaintiff has not worked another
night shift at any subsequent place of employment. However, he testified that from October
2011 to December 2011, more than two years after he stopped working a night shift, he would
frequently feel like his heart was racing and skipping a beat after climbing stairs. On December
28, 2011, plaintiff’s heart started racing so fast that he called an ambulance and went to the
hospital.
Plaintiff first called in sick on May 21, 2009. By letter dated May 31, 2009, defendant
notified plaintiff of the process that must be followed in order to apply for FMLA and/or
disability leave. Application needed to be made through UNUM Life Insurance Company of
America (“UNUM”), which was the third-party disability administrator for all medical shortterm, long-term, and family medical leaves of absences for defendant’s employees.
Plaintiff applied for short-term disability with UNUM, but did not apply for leave of
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absence pursuant to the FMLA. UNUM sent plaintiff a letter dated June 26, 2009, stating that it
was unable to approve his request for short-term disability benefits because the disability was
“not supported by medical documentation.” UNUM advised that it would reconsider plaintiff’s
claim if he or his physician provided additional information in support of plaintiff’s request.
UNUM further advised that he could submit a written appeal.
Plaintiff testified that he does not recall submitting any additional documentation in
support of his request for short term disability benefits after receiving UNUM’s rejection letter.
Plaintiff received another letter from UNUM, dated July 24, 2009, reiterating that plaintiff could
submit a written appeal. Plaintiff decided not to appeal the decision.
Request for Accommodation
Plaintiff testified that he had requested to be taken off the night shift sometime between
April and June of 2008 and again in April of 2009. Although plaintiff conducted his own
research by looking at defendant’s job board and online postings, neither he nor defendant were
able to find any vacant daytime positions for which he could apply. Meanwhile, plaintiff’s
supervisors were supportive of him and encouraged him to apply for FMLA leave or any other
type of leave if he felt he needed to take time off to get better.
Plaintiff testified that after he commenced his leave of absence on May 21, 2009, he
continued to look actively for other vacant positions involving pulmonary function testing and
for positions in the cardiac rehabilitation department, but his searches revealed no vacant
positions.
Notwithstanding plaintiff’s decision against applying for FMLA leave or appealing his
short term disability denial, defendant held open his position for seventy-eight (78) days, from
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May 21, 2009, to August 7, 2009. Defendant offered plaintiff the option of returning to his
former position under the same terms and conditions, but plaintiff elected not to return.
Defendant sent plaintiff a letter advising plaintiff that failure to return to work from an
unapproved leave of absence would result in his voluntary resignation. Plaintiff did not respond
to defendant’s letter or return to work.
Sexual Orientation Discrimination
Plaintiff alleges and defendant denies that plaintiff was forced to endure continual
insulting comments about his partner and their relationship during the course of his employment.
Plaintiff alleges that fellow employees frequently called plaintiff “one of the girls” and asked him
if it was “his time of the month.” Coworkers also referred to plaintiff’s partner as his “friend” or
“little friend.” Finally, a colleague allegedly read the Bible “at” plaintiff and told him that his
way of life was a sin.
CHRO
The Connecticut Commission on Human Rights and Opportunities dismissed plaintiff’s
complaint with them on the ground that there was no reasonable possibility that investigating the
complaint would result in a finding of reasonable cause.
DISCUSSION
A motion for summary judgment must be granted if the pleadings, discovery materials
before the court and any affidavits show that 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. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A dispute regarding a material fact is genuine if there is sufficient evidence that a
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reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to demonstrate the absence of
any material factual issue genuinely in dispute. Am. Int’l Group, Inc. v. London Am. Int’l Corp.,
664 F.2d 348, 351 (2d Cir. 1981).
If a nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he 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. Liberty
Lobby, 477 U.S. at 24. The mere existence of a scintilla of evidence in support of the
nonmoving party’s position is insufficient; there must be evidence on which the jury could
reasonably find for him. See Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir.
2004).
On summary judgment, the court resolves all ambiguities and draws all permissible
factual inferences in favor of the nonmoving party. See Patterson v. County of Oneida, 375 F.3d
206, 218 (2d Cir. 2004). If there is any evidence in the record from which a reasonable inference
could be drawn in favor of the opposing party on the issue on which summary judgment is
sought, summary judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion
Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Family Medical Leave Act
To establish a prima facie case of FMLA retaliation, a plaintiff must demonstrate that:
“1) he exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he
suffered an adverse employment action; and 4) the adverse employment action occurred under
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circumstances giving rise to an inference of retaliatory intent.” Potenza v. City of New York,
365 F.3d 165, 168 (2d Cir. 2004). Here, although plaintiff’s complaint alleged that he filed a
request for FMLA leave, he has since recanted. As plaintiff failed to apply for FMLA leave, he
cannot satisfy the first prong of the retaliation claim. Likewise, there is no evidence that
defendant interfered with plaintiff’s FMLA rights. Indeed, plaintiff’s supervisors encouraged
him to apply for FMLA leave. Accordingly, summary judgment will be granted in favor of
defendant on the FMLA retaliation claim.
Disability Discrimination under the ADA and the Rehab Act
Discrimination claims in reasonable accommodation cases, such as this one, require that:
“(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer
covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff
could perform the essential functions of the job at issue; and (4) the employer has refused to
make such accommodations.” Graves v. Finch Pruyn & Co., Inc. 457 F.3d 181, 184 (2d Cir.
2006).
As plaintiff declined to disclose any experts, it is unlikely that he would be able to prove
his disability to a jury. Any explanation concerning the effect of hyperdynamic left ventricle
with characteristics of hypertrophic cardiomyopathy is likely to be beyond the understanding of
the lay person. Furthermore, plaintiff has not shown how his impairment substantially limits a
major life activity. Nevertheless, it is unnecessary to decide the issue of disability where, as here,
plaintiff has not demonstrated the existence of some accommodation for which he was qualified.
Here, plaintiff sought the accommodation of working a daytime shift. However, plaintiff
has not demonstrated that defendant had a vacant, daytime position for which plaintiff was
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qualified. Jeffrey Dill, the Assistant Director of the Sleep Lab testified that defendant did not
have a vacant scorer position available when plaintiff was interested in moving to the day-shift.
Mr. Dill also testified that plaintiff lacked the training and skills to be a scorer.
Based on Mr. Dill’s affidavit, defendant’s Rule 56 Statement of Material facts stated at
fact paragraph #17: “From January 2008 through the present there have been no vacant Scorer
positions for hire. Further, the plaintiff testified that he has not been trained to be a sleep Scorer.
Pl’s Dep. at 171; Dill Aff. ¶ 9, 11.”
In his denial of fact paragraph #17, plaintiff maintains that he requested training as a
scorer, and that it could readily have been done. However, plaintiff has provided no evidentiary
support for his assertion that a vacant scorer position existed.
The Second Circuit has held that in ADA reasonable accommodation cases, “[t]he
plaintiff bears the burdens of both production and persuasion as to the existence of some
accommodation that would allow [him] to perform the essential functions of [his] employment,
including the existence of a vacant position for which she is qualified.” McBride v. BIC
Consumer Products Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir. 2009). Similarly, with regard to
Rehab Act accommodation cases, “a plaintiff bears the burden of establishing that a vacancy
existed into which he or she might have been transferred.” Jackan v. New York State Dept. of
Labor, 205 F.3d 562, 566 (2d Cir. 2000).
As plaintiff has failed to demonstrate that there existed any potential accommodation that
would have allowed him work the day-shift, his reasonable accommodation disability
discrimination claims fail. Accordingly, summary judgment will be granted in defendant’s favor
on plaintiff’s ADA and Rehab Act claims.
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Disability Discrimination under CFEPA
To establish a prima facie case of disability discrimination under CFEPA, plaintiff must
show: “(1) he [was] in the protected class; (2) he was qualified for the position; (3) he suffered an
adverse employment action; and (4) that the adverse action occurred under circumstances giving
rise to an inference of discrimination.” Jackson v. Water Pollution Control Authority of City of
Bridgeport, 278 Conn. 692, 707 (2006). Under CFEPA, “disabled” refers to any individual who
has any chronic physical handicap, infirmity or impairment. Conn. Gen. Stat. § 46a-51(15).
Assuming arguendo that plaintiff is disabled for purposes of CFEPA, he has not
demonstrated that his termination occurred under circumstances that give rise to an inference of
discrimination. Although encouraged by his supervisors to apply for appropriate leave, either by
applying for FLMA leave or submitting medical evidence to substantiate his short-term disability
leave, plaintiff declined. Plaintiff was terminated via “voluntary resignation” when he neither
responded to requests to seek authorized leave nor returned to work.
Plaintiff hasn’t demonstrated evidence giving rise to an inference of disability
discrimination. Accordingly, summary judgment will be granted in defendant’s favor on
plaintiff’s CFEPA claim.
Sexual Orientation Discrimination
Connecticut General Statute § 46a-81c prohibits employers from discharging or
discriminating against employees “in compensation or in terms, conditions or privileges of
employment because of an individual’s sexual orientation or civil union status.” Conn. Gen.
Stat. § 46a-81c.
“To prevail on a hostile work environment claim, a plaintiff must demonstrate: “(1) that
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[his] workplace was permeated with discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of [his] work environment, and (2) that a specific basis exists for
imputing the conduct that created the hostile environment to the employer.” Schwapp v. Town
of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Whether conduct was so severe or pervasive as to
create a hostile work environment depends on the totality of the circumstances, including such
factors as the frequency and severity of the discriminatory conduct, whether it was physically
threatening or humiliating, or merely offensive, and whether it unreasonably interfered with the
employee’s work performance. Harris v. Forklift Systems, Inc., 510, U.S. 17, 23 (1993). The
conduct alleged must be severe and pervasive enough to create an environment that “would
reasonably be perceived, and is perceived, as hostile or abusive.” Schwapp, 118 F.3d at 110.
Here, although the alleged comments were offensive, they were not physically
threatening, and plaintiff has not demonstrated that the comments interfered with his work
performance.
It is unlikely that plaintiff’s allegations amount to the “steady barrage” of outrageous
comments required to establish a hostile work environment. Id. More importantly, any comment
that occurred before July 29, 2009, is time barred because it occurred beyond the 180 day statute
of limitations. See Conn. Gen. Stat. § 46a-82(f). Indeed, plaintiff’s last day of work was May
20, 2009, before the 180 day deadline.
Plaintiff has alleged that a coworker told him sometime after July 29, 2009, that he and
his “little friend” needed to return to work. Further, plaintiff argues that the 180 day time-bar is
not meant to apply to continuing violations. While courts have held that the limit is not meant to
bar claims based on continuous and ongoing practice of discrimination, pursuant to a policy of
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discrimination, plaintiff has failed to demonstrate “specific ongoing discriminatory policies or
practices . . .” Cornwell v. Robinson, 23 F.3d 694, 704 (1994). The continuing violation
exception is usually associated with a discriminatory policy, rather than with individual instances
of discrimination. See Fitzgerald v. Henderson, 251 F.3d 345, 359 (2001).
Based on the totality of the circumstances defendant’s conduct was not so severe or
pervasive as to create a hostile work environment or to evince an underlying policy of
discrimination. Therefore, defendant’s motion for summary judgment will be granted as to
plaintiff’s hostile work environment claim.
Plaintiff has also failed to demonstrate a prima facie case of discrimination based on
sexual orientation based on an adverse employment action. To do so, plaintiff must show that:
“(1) [he] is a member of a protected class; (2) [he] was qualified for the position; (3) [he]
experienced an adverse employment action; and (4) the adverse action occurred under
circumstances that give rise to an inference of discriminatory intent.”
Here, the alleged adverse employment action, plaintiff’s termination, was based on
plaintiff’s refusal to return to work. No reasonable jury could find that defendant terminated
plaintiff’s employment based on his homosexuality when defendant offered to help plaintiff
apply for leave and asked him to come back to work after seventy-eight days of absence.
Accordingly, summary judgment will be granted in favor of defendant on plaintiff’s sexual
orientation discrimination claim.
Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress, a plaintiff must
demonstrate: “(1) that the actor intended to inflict emotional distress or that he knew or should
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have known that emotional distress was the likely result of his conduct; (2) that the conduct was
extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress;
and (4) that the emotional distress sustained by the plaintiff was severe.” Appleton v. Board of
Educ. of Town of Stonington, 254 Conn. 205, 210 (2000).
Here, plaintiff has failed to make a sufficient showing that defendants’ conduct was
extreme and outrageous, an essential element of his case for which he has the burden of proof.
“Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and
outrageous is initially a question for the court to determine.” Id. “Liability has been found only
where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.” Id. at 210-211.
Here, the comments by plaintiff’s co-workers, as alleged, were inappropriate. However,
“[c]onduct on the part of the defendant that is merely insulting or displays bad manners or results
in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of
emotional distress.” Id. at 1062. Although the alleged comments were offensive, they were not
physically threatening, and plaintiff has not demonstrated that the comments interfered with his
work performance. Accordingly, summary judgment will be granted in defendant’s favor on the
intentional infliction of emotional distress claim.

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CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment [Doc. #36] is
GRANTED. The Clerk is instructed to close this case.
Dated this 28th day of March, 2013, at Bridgeport, Connecticut.

/s/
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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