Wilkins v. J.C. Penney
ORDER granting 25 Motion for Summary Judgment. See attached memorandum of decision. The Clerk is directed to enter judgment in favor of the Defendant and to close the case. Signed by Judge Vanessa L. Bryant on 07/22/2013. (Grady, B.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
J.C. PENNEY CORPORATION, INC.,
CIVIL ACTION NO.
July 22, 2013
MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. #25]
Before the Court is Defendant J.C. Penney Corporation, Inc.’s (“J.C.
Penney”) motion for summary judgment.
The Plaintiff Ryanneil Wilkins
(“Wilkins”) brings this action alleging that he was discriminated against because
of a perceived disability when J.C. Penney laid him off and then failed to rehire
him in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101,
For the following reasons, the Court grants Defendant’s motion for
The following facts are undisputed unless otherwise noted.
worked at J.C. Penney’s Manchester, Connecticut facility from August 15, 2007
until January 9, 2009 when he was laid off as a Carton Processing Associate.
[Dkt. # 25-1, Local Rule 56(a)(1) Statement, ¶3].
J.C. Penney required every
employee to acknowledge and review the policies and procedures of employment
at J.C. Penney at the time the employee was hired. [Id. at ¶5]. The J.C. Penney
Associate Guide states that Wilkins’ employment was at will, and could be
terminated for any reason permissible under the law. [Id. at ¶6]. Throughout his
time at J.C. Penney, his supervisors rated Wilkins’ performance as “above
expectations” and they considered him a valuable asset. [Id. at ¶7; Dkt. # 25-4,
Exhibit B, Marc Christensen’s Dep., at 131].
In July 2008, after about one year of working, Wilkins was involved in an offduty car accident which resulted in a back injury. [Dkt. # 25-1, Local Rule 56(a)(1)
Statement, ¶8]. The doctors at the hospital that treated Wilkins recommended
that he take three days off from work, and instructed him to follow up with a
doctor or chiropractor. [Id.].
J.C. Penney approved Wilkins’ request for leave
from July 8, 2008 to July 10, 2008. [Id.]. Wilkins returned to work the next week.
[Dkt. #25-3, Ryanneil Wilkins’s Dep., at 77].
On July 24, 2008, Dr. Mintz, a
recommended light duty work for him. [Dkt. # 25-1, Local Rule 56(a)(1) Statement,
¶8]. J.C. Penney accommodated Wilkins with light duty work until August 14,
2008. [Id. at ¶8].
Wilkins asserts that he was then forced by J.C. Penney to take Family and
Medical Leave Act (“FMLA”) leave after August 14, 2008. Wilkins testified that his
supervisor, Marc Christensen (“Christensen”), informed him that he could not
keep him on light duty work any longer because Wilkins’ injury was not work
related and therefore he was forced to take FMLA leave. [Dkt.#33-3, Ex. A, Wilkins
Dep., at 92-95]. J.C. Penney asserts that Wilkins requested FMLA leave pending a
MRI on his back. [Dkt. # 33-1, Local Rule 56(a)(2) Statement, ¶9]. J.C. Penney’s
assertion is based on a letter it received on August 14, 2008, from Wilkins’ doctor,
Dr. Mintz, recommending that Wilkins remain out of work pending an appointment
for his MRI. [Id.]. The note read: “[Wilkins] will be receiving a MRI on August 25,
2008 and he has a follow-up scheduled for 8/27/2008. It is our recommendation
that the patient remain out of work until his follow-up apt.” [Dkt. #33-5, Exhibit C,
at 5]. J.C. Penney approved Wilkins’ request for FMLA leave between August 14
through September 3, 2008 through its Illness Recovery Program. [Dkt. # 33-1,
Local Rule 56(a)(2) Stmt., ¶9]. J.C. Penney’s Illness Recovery Program allows
employees to take leave for medical treatment, regardless of whether the injury
resulted from on the job or off duty occurrences. [Id. at ¶10]. After Wilkins’ MRI
on August 27, 2008, Dr. Mintz released Wilkins to full duty work thereby ending
his FMLA leave on September 3, 2008. [Id.]. As soon as Dr. Mintz released
Wilkins from light duty restriction on September 3, 2008, J.C. Penney’s medical
staff did as well and Wilkins returned to his pre-injury position without
restrictions. [Id. at ¶11].
Wilkins asserts that Christensen and another supervisor, Neil Campbell,
excessively questioned him about his back injury when he returned to work after
his MRI. Wilkins testified that Christensen and Campbell would ask him whether
his back was okay two to three times a day, for a period of approximately one
month, after he returned to work on September 3, 2008 and resumed his former
duties. [Dkt. #25-3, Def. Ex. A, Wilkins Dep., at p.130-134, 137, 140-141]. Wilkins
further testified that in October 2008 Campbell and Christensen stopped asking
about his back because he kept telling them he was fine. [Id.].
Wilkins also asserts that Christensen perceived him to be disabled from
the major life activities of bending, twisting, exertion, pushing or pulling.
contends that Christensen perceived him as disabled because Christensen
“testified to remembering specific medical documents for Mr. Wilkins that were
not contained in his personnel file, whereas other medical documents were kept
on file” and because “specific medical records for Mr. Wilkins were intentionally
removed from his personnel file in order to conceal Defendant’s knowledge of
Wilkins’ limitations.” [Dkt. #33-1, Local Rule 56(a)2 Statement, Disputed Issue of
Material Fact, ¶¶9,35-36]. In support of these assertions, Wilkins relies on
Christensen’s deposition testimony regarding Wilkins’ medical records that were
on file at J.C Penney.
[Dkt. #33-4, Def. Ex. B., Christensen Dep., at 140-42].
Christensen testified that J.C. Penney’s medical file that was produced to Wilkins
during this litigation “does not appear to include documentation which [he]
recall[ed] Ryanneil Wilkins submitted” which provided restrictions for Wilkins’
work following his injury.
Christensen further testified that this
documentation “predated” Wilkins’ application for short term disability benefits
which coincided with his FMLA request. [Id.] No evidence has been offered in
the record, though, to establish that Wilkins’ file was incomplete and if so, how or
why it came to be incomplete.
At the time of Wilkins’ employment at J.C. Penney’s Manchester facility, J.C.
Penney had in place a written attendance policy (“Attendance Guidelines”), which
rated each associate as either “excellent,” “satisfactory,” or “unsatisfactory”
based on the associate’s attendance record. [Dkt. # 25-1, Local Rule 56(a)(1)
Statement, ¶12]. These ratings were assigned depending on the number of
absences or occurrences accrued within a thirteen-week rolling period. [Id.]. The
Attendance Guidelines do not distinguish between scheduled absences and
unscheduled absences. [Dkt. #27-1, Exhibit C, Donna Ferris-Kotlik’s Dec., at ¶13].
For example, the guidelines state that: “Doctor’s notes do not excuse any
occurrence. Occurrences supported by documentation do count toward an
Associate’s Attendance Rating.” [Id.].
Under the policy, an “excellent” rating is given for zero to one occurrences
per thirteen-week period, a “satisfactory” rating is given for up to two absences
or three late arrivals or early quits per thirteen-week period, and an
“unsatisfactory” rating is given for up to three absences or four late arrivals or
early quits. [Dkt. #27-1, Exhibit C, Donna Ferris-Kotlik’s Dec., at ¶11].
Wilkins asserts that he was never given written notice in the form of a policy
or otherwise informed that employees approved for personal time off (“PTO”)
would be charged with an absence under the attendance policy. [Dkt. 33, Local
Rule 56(a)2 Statement,¶12]. J.C. Penney’s Attendance Policy is contained in a
written handbook which Wilkins signed, acknowledging that he received and
reviewed the attendance policies.
[Id. at ¶5; Dkt. #33-1, Local Rule 56(a)2
Statement, ¶5; Dkt. #27-1, Exhibit C , at 39].
Following Wilkins’ FMLA leave and after returning to his pre-accident
duties, Wilkins was absent from work on October 26, 2008, October 27, 2008,
November 23, 2008, and December 14, 2008.
[Dkt.# 25-1, Local Rule 56(a)(1)
Statement, ¶13]. J.C. Penney’s attendance records show that Wilkins took unpaid
sick leave on October 26th, paid sick leave on October 27th and personal leave on
November 23rd and December 14th, none of which Wilkins claims should have
been considered FMLA leave. [Id. at ¶¶13, 16]. J.C. Penney does not contend
that this leave was considered FMLA leave, but rather that it is merely leave
which is considered for purposes of calculating an employee’s absence rating
under the company’s published attendance policy. This record was used to track
Wilkins’ attendance rating which fell to the “unsatisfactory” category for that
thirteen-week period. [Id. at ¶¶14, 16].
The J.C. Penney Attendance Guidelines make certain recommendations for
management to take when an associate’s attendance rating changes.
Guidelines recommend, but do not require, that the associate’s supervisor notify
the associate when his or her attendance rating changes to “satisfactory” or
Guidelines, at 27].
[Dkt. #33-5, Exhibit E, J.C. Penney Logistics Attendance
However, Wilkins was never personally notified by J.C.
Penney management that his attendance was unsatisfactory until layoffs were
made in January 2009. [Dkt. # 33-1, Local Rule 56(a)(2) Statement, ¶12; Dkt. # 251, Local Rule 56(a)(1) Statement, ¶17]. The last three absence occurrences were
still “active” when Wilkins was terminated on January 10, 2009.
[Id. at ¶16].
Wilkins was not placed on probation, laid off or otherwise disciplined because of
his attendance record.
In the fall of 2008, J.C. Penney’s corporate headquarters made the decision
to reduce staff in logistics facilities across the nation, including the Manchester,
Connecticut facility. [Dkt. # 25-1, Local Rule 56(a)(1) Statement, ¶18]. This staff
reduction was made because of the economic downturn which had a negative
impact on J.C. Penney’s sales.
[Id. at ¶18].
In the Manchester, Connecticut
facility, the January 2009 staff reduction resulted in seventy-three associates
being terminated. [Id. at ¶19]. Seven Carton Process associates were affected by
the January 2009 layoff and Wilkins had the most seniority out of the associates
laid off. [Id. at ¶24].
J.C. Penney asserts that it utilized a long-established formula for selecting
the associates who would be affected by the staff reduction. [Id. at ¶19]. J.C.
Penney gave “bumping rights” to associates with more than two years of service
when such associates were identified as layoff candidates.
[Id. at ¶19].
Therefore, any associate with more than two years of service was given
preference by years of seniority to transfer into other positions at the Manchester
facility. [Id. at ¶19]. Wilkins, however, did not have two years of service, and
therefore did not have any bumping rights. [Id. at ¶19].
Christensen asserts he was on vacation for the last few weeks of December
2008 and when he returned he was given a list of people to lay off, which included
Wilkins. [Dkt. # 26-1, Exhibit D, Marc Christensen’s Dec., at ¶14]. Christensen
met with each of the eighteen second-shift associates affected by the layoff,
[Id. at ¶15].
During this meeting on January 10, 2009,
Christensen informed Wilkins he was ineligible for rehire due to his
“unsatisfactory” attendance rating accrued in the thirteen week rolling period.
[Id.]. Wilkins did not protest the characterization of the absences or his absence
rating, nor did he question the decision at this time. [Id.]. Wilkins asserts that he
had never been informed that he had an unsatisfactory attendance rating prior to
being laid off nor was there a written policy stating that an employee with an
unsatisfactory attendance rating at the time of a layoff is ineligible for rehire.
[Dkt. #33-1, Local Rule 56(a)2 Statement, Disputed Issue of Material Fact, ¶19].
In May 2009, the Manchester facility began hiring for a new department.
[Dkt. # 26-1, Exhibit D, Marc Christensen’s Dec., at ¶20]. Once internal candidates
were selected, former associates who were laid off and in good standing at the
time of the layoff were contacted in the order of their seniority for rehiring. [Id.].
J.C. Penney asserts that a long-established, unwritten standard for J.C. Penney’s
corporate human resources department was to call back associates with a
“satisfactory” attendance rating and a “satisfactory” performance rating for
[Dkt. # 27-1, Exhibit C, Donna Ferris-Kotlik’s Dec., ¶27].
asserts that Wilkins’ “unsatisfactory” attendance rating during that most recent
thirteen-week period made him ineligible for rehire. [Id. at ¶27].
The Defendant asserts that Christensen did not have any input concerning
the layoff or the recall of any associates, including Wilkins. [Dkt. #25-4, Exhibit B,
Marc Christensen’s Dep., at 86-87]. However, Christensen signed Wilkins’ layoff
form, in which it was indicated that Wilkins was not eligible for rehire because of
his “unsatisfactory” attendance rating. [Dkt. # 33-5, Exhibit G, Associate Record
Card, at 36]. The Defendant also asserts that Thomas Sanzo, the department
manager, also did not have input in the recall process of any of the associates
who were laid off in January 2009. [Dkt. #26-2, Exhibit E, Sanzo Dec., ¶5]. Wilkins
contends that Christensen and Sanzo did have input in the decision to lay off and
rehire. In support of this contention, Wilkins points to Christensen’s deposition
testimony which he characterizes as inconsistent as to the layoff and recall
process and which he therefore argues supports an inference that he and Sanzo
were actually involved in those decisions.
Christensen testified that he was
verbally informed by “HR” that only associates with satisfactory attendance
ratings would be eligible for hire and that he did not know who from HR made that
determination. [Dkt. #33-4, Pl. Ex. B, Christensen Dep., at 90-91]. Christensen
then testified that HR confirmed it to his manager, Sanzo, who in turn confirmed it
to him. [Id. at 91]. Christensen further testified that he did not know if Sanzo told
him that HR had informed him of the policy regarding rehire eligibility. [Id. at 9192]. Christensen explained that “I’m not HR. I was just told to do what I was told
to do” and that Sanzo did not tell him that HR made the determination. [Id. at 92].
Christensen testified that Sanzo “is my manager and he has lots more experience
than I do in this. He gave me an instruction. I did the instruction.” [Id. at 92]. He
explained that he “got the impression” from Sanzo that the determination had
been made by the “HR home office” in Texas and that Sanzo told him he got the
instruction from the home office in Texas. [Id. at 93].
Wilkins asserts that similarly situated non-disabled employees O’Neil
Campbell and Ricardo Alvarado were either rehired or not laid off despite poor
attendance ratings. O’Neil Campbell, another Carton Process Associate, who had
one month less seniority than Wilkins, was laid off in January 2009 but rehired on
September 13, 2009 and continues to work for J.C. Penney. [Dkt. # 25-1, Local
Rule 56(a)(1) Statment, ¶22].
At the time of lay off in January 2009, O’Neil
Campbell had a “satisfactory” attendance rating for the immediately prior
thirteen-week rolling period. [Id.]. During that period, O’Neil Campbell had one
absence and one late arrival, which gave him a “satisfactory” rating under the
In prior thirteen-week rolling periods, O’Neil
Campbell had accrued several unsatisfactory attendance ratings. [Dkt.# 33-5, Pl.
Ex. H]. Ricardo Alvarado, another Carton Process Associate who had greater
seniority than Wilkins by one month, was not laid off in January 2009 because his
seniority made him ineligible for the layoff.
[Dkt. # 25-1, Local Rule
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Fed.R.Civ.P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.,
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,
2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011
WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no evidence upon
which a jury could properly proceed to find a verdict for the party producing it
and upon whom the onus of proof is imposed, such as where the evidence
offered consists of conclusory assertions without further support in the record,
summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604
F.3d 712 (2d Cir. 2010).
Wilkins argues that J.C. Penney laid him off and failed to rehire him because
it perceived him to be disabled in violation of the ADA. The ADA states that “no
covered entity shall discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms,
conditions and privileges of employment.” 42 U.S.C. § 12112(a). To establish a
prima facie case of employment discrimination under the ADA, a plaintiff must
show “(a) that his employer is subject to the ADA; (b) that he is disabled within
the meaning of the ADA or perceived to be so by his employer; (c) that he was
otherwise qualified to perform the essential functions of the job with or without
reasonable accommodation; and (d) that he suffered an adverse employment
action because of his disability.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134
(2d Cir. 2008). Claims of employment discrimination under the ADA are governed
by the burden-shifting analysis established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Stephan v. West Irondequoit Cent. School Dist., 450 F’ App’x
77, 79 (2d Cir. 2011). “Once a plaintiff has established a prima facie case, the
burden shifts to the employer to articulate a legitimate, nondiscriminatory reason
for the adverse employment action. The burden then returns to the plaintiff to
furnish evidence that the reason offered by the employer is a pretext.”
There are two ways an individual may be “regarded as” having a disability:
“(1) a covered entity mistakenly believes that a person has a physical impairment
that substantially limits one or more major life activities, or (2) a covered entity
mistakenly believes that an actual, nonlimiting impairment substantially limits
one or more major life activities.” Brown v. City of Waterbury B. of Educ., 722
F.Supp.2d 218, 225 (D. Conn. 2010) (citing Sutton v. United Air Lines, Inc., 527
U.S. 471, 489 (1999)). In other words, the employer must mistakenly believe that
the employee has a substantially limiting impairment or, in the alternative, must
mistakenly believe that the employee’s impairment is substantially limiting. “A
‘regarded as’ [or perceived disability ADA] claim ‘turns on the employer’s
perception of the employee’ and is therefore a question of intent, not whether the
employee has a disability.’” Capobianco v. City of New York, 422 F.3d 47, 57 (2d
Cir. 2005) (quoiting Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2d
Cir. 1998)). “It is not enough that the employer perceive the employee as
‘somehow disabled’; the employer must regard the employee as disabled within
the meaning of the ADA,’ i.e., having an impairment that substantially limits a
major life activity.” Id. (citation omitted).
“To establish a disability [within the meaning of the ADA], plaintiff must (1)
show that [he] suffers from a physical or mental impairment, (2) identify the
activity claimed to be impaired and establish that it constitutes a ‘major life
activity, and (3) show that [his] impairment substantially limits the major life
activity previously identified.” Kravtsov v. Town of Greenburgh, No.10-cv-3142
(CS), 2012 WL 2719663, at *10 (S.D.N.Y. July 9, 2012) (internal quotation marks
and citations omitted). Disability is broadly defined by the ADA.1 “[T]emporary,
Since Wilkins’s “regarded as” claim arises after January 1, 2009, the ADA
Amendment Act of 2008 (“ADAAA”) governs the analysis of perceived disability.
The ADAAA “substantially broadened the definition of a disability under the law,
in explicit response to Sutton v. United Air Lines, 527 U .S. 471 (1999) and Toyota
Motor Mftrg. v. Williams, 534 U.S. 184 (2002), in which the ADA's terms defining
disability had been strictly defined.” Hutchinson v. Ecolab, Inc.,
No.3:09cv1848(JBA), 2011 WL 4542957, at *7 (D. Conn. Sept. 28, 2011). Under the
ADAAA, the definition of “disability” is construed in “favor of broad coverage of
individuals under this chapter, to the maximum extent permitted by the terms of
this chapter.” 42 U.S.C. § 12102(4)(A). “Disability” as defined as “(A) a physical
or mental impairment that substantially limits one or more major life activities of
such individuals; (B) a record of such an impairment; or (C) being regarded as
having such an impairment.” § 12102(1). “The ADAAA expanded the
interpretation of the ADA's three-category definition of ‘disability.’ For example,
‘major life activity’ includes ‘caring for oneself, performing manual tasks ...
non-chronic impairments of short-duration, with little or no long term or
permanent impact, are usually not disabilities” within the meaning of the ADA.
Kennebrew v. N.Y. City Housing Auth., No. 01 CIV 1654, 2002 WL 265120, at *18 n.
32 (S.D.N.Y. Feb. 26, 2002); Leahy v. Gap. Inc., No. 07–CV–2008, 2008 WL 2946007,
at *4 (E.D.N.Y. July 29, 2008) (“For purposes of the ADA, short term, temporary
restrictions are not ‘substantially limiting’ and do not render a person
‘disabled.’”); Green v. N.Y. City Health & Hosp. Corp., No. 04–CV–5144, 2008 WL
144828, at *4 (S.D.N .Y. Jan. 15, 2008) (“To establish a disability under the ADA,
there must be some proof of permanency.”); Adams v. Citizens Advise Bureau,
187 F .3d 315, 316-17 (2d Cir. 1999); Williams v. Salvation Army, 108 F. Supp. 2d
303, 312-13 (S.D.N.Y. 2000) (“temporary, non-chronic impairments of short
duration, with little or no long-term or permanent impact, are usually not
disabilities.”). “It appears that even under the ADAAA’s broadened definition of
disability short term impairments would still not render a person disabled within
the meaning of the statute.” Wanamaker v. Westport Bd. of Educ., 899 F. Supp.
2d 193, 211 (D. Conn. 2012). Therefore, a plaintiff may not succeed on a
“regarded as” claim where an employer only perceives the employee to have
suffered a short term temporary impairment.
J.C. Penney argues that Wilkins’ ADA claim fails because J.C. Penney did
not perceive or regard Wilkins as disabled within the meaning of the ADA and
further it chose not to rehire Wilkins because of his unsatisfactory attendance
walking, standing, lifting, bending, speaking, breathing. ., and working,’ as well as
‘the operation of a major bodily function,’ including ‘neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions.’” Hutchinson,
2011 WL 4542957, at *8 (quoting Pub.L. No. 110–325, 122 Stat. 3553, 3555 (2008)).
rating in the most recent thirteen-week rolling attendance period prior to the
layoff. Wilkins contends that J.C. Penney perceived his injury as substantially
limiting the major life activities of bending, twisting, exerting, pushing, and
pulling and failed to rehire him because of this perceived disability. Wilkins
principally argues that the following facts demonstrate that J.C. Penney
perceived him as disabled and discriminated against him because of this
perceived disability: (i) J.C. Penney was aware of his back injury and his doctor’s
recommended work restrictions following that injury, (ii) J.C. Penney
accommodated his injury with light duty tasks for a short period of time and then
forced him to take FMLA leave, (iii) his supervisors excessively questioned how
his back was doing after his return from FMLA leave, (iv) J.C. Penney did not lay
off a similarly situated non-disabled employee who had poor attendance ratings,
and (v) J.C. Penney rehired a similarly situated non-disabled employee who had
poor attendance ratings.
The fact that J.C. Penney was aware that Wilkins had suffered a back
injury, which temporarily limited his ability to bend, twist, exert, push, and pull
from the time of his accident in July 2008 to September 3, 2008 when he returned
to and performed his work full-time without any restrictions, accommodated that
injury for three months by assigning him to light duty tasks until it had no more
to assign and then granted him FMLA leave beginning on August 14, 2008 when
his doctor opined that he could no longer work does not demonstrate that J.C.
Penney perceived him to be disabled within the meaning of the ADA. Courts have
routinely held that placing an employee on FMLA or other sick leave or
accommodating an injury or condition without more does not constitute evidence
that the employer perceived that employee as disabled for purposes of the ADA.
See e.g., Price v. Mount Sinai Hosp., 458 F. App’x 49, 52 n.2 (2d Cir. 2012) (holding
that fact that employer allowed employee leave under the FMLA without more
does not demonstrate that employer regarded employee as disabled and
therefore “this evidence is not enough to defeat the summary judgment
motion.”); O’Reilly v. Consolidated Edison Co. of New York, Inc., 374 F. Supp. 2d
278, 288 (E.D.N.Y. 2005) (“Moreover, although defendant approved sick leave for
plaintiff based on the injury to her Achilles tendon and her representations to her
doctors, this does not constitute evidence that they perceived plaintiff as being
disabled within the meaning of the ADA, since, as explained above, a temporary
impairment does not constitute a ‘disability’ for ADA purposes”); Miller v.
McHugh, 814 F. Supp. 2d 299, 317-18 (S.D.N.Y. 2011) (holding that employer’s
grant of temporary accommodations for employee did not demonstrate that
employer believed that employee was suffering from a disability that substantially
limited her ability to engage in a major life function); Divergillio v. Peet,
No.3:06CV2048(AWT), 2009 WL 909428, at *5 (D. Conn. Mar. 31, 2009) (finding that
refusal to give employee additional light duty status because her injury was not
work related did not support an inference that employer perceived employee as
disabled); Boyd v. City of New York Parks and Recreation, No.05Civ.6962, 2008
WL 5092841, at *8 (S.D.N.Y. Dec. 2, 2008) (“While [employer] was aware that
Plaintiff had been injured, it ha[d] no reason to believe that Plaintiff’s condition
substantially limited his ability to work.”); Kramer v. Hickey-Freeman, Inc., 142 F.
Supp. 2d 555, 560 (S.D.N.Y. 2001) (holding that the “Court cannot accept that
defendant's offer to grant plaintiff a leave of absence itself proves that defendant
regarded plaintiff as disabled.”); Graham v. Boehringer Ingelheim
Pharmaceuticals, Inc., 451 F. Supp. 2d 360, 372-73 (D. Conn. 2006)(holding that
placing employee on short term disability did not demonstrate that employer
considered employee to be disabled within the meaning of the ADA) (collecting
Further, the mere fact that Wilkins’ supervisors, Christensen and Campbell,
demonstrated concern for Wilkins’ health by asking him about his back several
times a day for about a month after he returned to work full-time without any
restrictions on September 3, 2008 likewise does not support an inference that J.C.
Penney considered Wilkins to be disabled for ADA purposes, particularly where
they assigned him the same work he had been assigned prior to his injury. Diggs
v. Town of Manchester, 303 F.Supp.2d 163, 184-85 (D. Conn. 2004) (“At most the
evidence showed that the Town and some of Plaintiff’s officers were concerned
about his ability to perform as a firefighter given the stressful nature of the job.
That concern does not equate to regarding him as unable to perform a wide range
of jobs. Therefore, Plaintiff has failed to establish that he was ‘regarded as’
disabled so as to fall within the protection of the ADA”); see also Pater v.
Deringer Mfg. Co., No.94C7047,1995 WL 530655, at *4 (N.D. Ill. Sept. 7, 1995)
(Plaintiff “points to the fact that people asked her how she was feeling, but the
existence of mere inquiries as to her health by members of the management does
not prove that they believed that she was disabled or treated her as such.”); Mack
v. Strauss, 134 F. Supp. 2d 103, 110 (D.D.C. 2001) (holding that “concern for
plaintiff’s health does not establish that [employer] believed that plaintiff was
unable to perform his job or that he was impaired in any major life function.
[Employer’s] concern for plaintiff’s health does not establish that she regarded
plaintiff as disabled.”); Hill v. Steven Motors, Inc., 228 F. Supp. 2d 1247, 1258 (D.
Kan. 2002) (“Plaintiff's only evidence on this point centers on comments allegedly
made by [employee] suggesting concern for her health. However, it is
uncontroverted that these comments were made while [plaintiff] was still
recovering from her stroke, at a time when plaintiff's own evidence establishes
that she was unable to return to work. Plaintiff has not identified any evidence
demonstrating or suggesting that the defendant regarded her as disabled once
she was released to return to work”).
In addition, as Wilkins was only questioned about his back for a period of a
month following his full return to work in September and was assigned and
performed his regular work duties full-time without any restrictions or
accommodations from September 3, 2008 until he was laid off in January 2009,
that evidence cannot support an inference that J.C. Penney perceived him as
having anything other than a temporary impairment. See e.g., Young v. Benjamin
Dev. Co., Inc., No. 03Civ.10209, 2009 WL 498933, at *8 (S.D.N.Y. Feb. 17, 2009)
(finding that because employer “continued to assign Plaintiff orders involving
similar tasks through the period that Plaintiff alleges that he was ‘disabled,’
Plaintiff ha[d] not demonstrated that Defendants regarded him as disabled.”);
Amendola v. Henderson, 182 F. Supp. 2d 263, 276 (E.D.N.Y. 2001) (finding that “all
evidence points to the conclusion that the defendant perceived plaintiff as merely
requiring post-operative recovery time following his foot surgeries between April
and June of 1993. As a result, the evidence is insufficient to permit the inference
that the defendant perceived plaintiff as having an impairment that substantially
limited him in one or more major life activities.”); Edwards v. Brookhaven Science
Assocs., LLC, 390 F. Supp. 2d 225, 232 (E.D.N.Y. 2005) (holding that plaintiff failed
to demonstrate that employer regarded him as disabled under the ADA because
the undisputed evidence showed that his injury was temporary and did not limit
plaintiff’s “ability to perform daily tasks”). Here too J.C. Penney made temporary
accommodations owing to Wilkins’ injury, but only in response to the
recommendations of Wilkins’ doctor and only until Wilkins’ doctor cleared him to
return to work without restriction.
This evidence, even when viewed in the light most favorable to Wilkins, at
best demonstrates that J.C. Penney perceived Wilkins to have a temporary, nonchronic impairment of short-duration, which is not enough to establish that it
regarded him as disabled within the meaning of the ADA. As the Second Circuit
has explained, to accept Wilkins’s arguments in this regard would “discourage
employers from taking … preliminary or temporary steps to keep their employees
happy for fear that showing concern for an employee’s alleged medical problems
could draw them into court facing an ADA claim based on a perceived disability.”
Price, 458 F. App’x at 52 n.2 (internal quotation marks and citation omitted).
Wilkins also argues that the disparate treatment afforded to similarly
situated non-disabled employees demonstrates that J.C. Penney’s failure to
rehire him was attributable to its perception of a disability and thereby rebuts its
proffered reason for failing to rehire. “A showing of disparate treatment—that is,
a showing that an employer treated plaintiff less favorably than a similarly
situated employee outside his protected group—is a recognized method of
raising an inference of discrimination for the purposes of making out a prima
facie case.” Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010) (internal
quotation marks omitted). The “standard for comparing conduct requires a
reasonably close resemblance of the facts and circumstances of plaintiff's and
comparator's cases,” such that “the comparator must be similarly situated to the
plaintiff in all material respects.” Id. at 494 (internal quotation marks omitted).
“An employee is similarly situated to co-employees if they were (1) subject to the
same performance evaluation and discipline standards and (2) engaged in
comparable conduct.” Id. at 493–94 (internal quotation marks omitted). This
standard “requires a reasonably close resemblance of the facts and
circumstances of plaintiff's and comparator's cases”—a determination that must
be made based on both “an examination of the acts” and “an examination of the
context and surrounding circumstances in which those acts [we]re
evaluated.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). “As a
general rule, whether items are similarly situated is a factual issue that should be
submitted to the jury. This rule is not absolute, however, and a court can
properly grant summary judgment where it is clear that no reasonable jury could
find the similarly situated prong met.” Harlen Assocs. v. Inc. Vill. of Mineola, 273
F.3d 494, 499 n. 2 (2d Cir.2001) (internal citations omitted).
Here, Wilkins points to two employees he alleges were similarly situated
and were not laid off or rehired despite poor attendance ratings. The first
employee is Ricardo Alvarado who was a Carton Process Associate like Wilkins.
Wilkins charges that Alvarado, who only had one month more seniority than
Wilkins, was not laid off despite the fact that he had inferior performance and
attendance ratings. However, Wilkins admits that Alvarado’s seniority had made
him ineligible for the layoff according to the formula J.C. Penney used to
determine which staff would be affected by the layoff. [Dkt. # 33-1, Local Rule
56(a)(2) Statement, ¶23]. As Alvarado was not eligible for the layoff because of
his seniority, he was not similarly situated in all material respects to Wilkins who
was eligible for the layoff. It is clear that no reasonable jury could find the
similarly situated prong met here where there is no dispute as to Alvarado’s
eligibility for the layoff and therefore the evidence regarding Alvarado can neither
raise an inference of perceived disability discrimination nor rebut J.C. Penney’s
proffered reasons for not rehiring Wilkins.
The second employee is O’Neil Campbell who was a Carton Process
Associate like Wilkins and had one month less seniority than Wilkins. Wilkins
contends that O’Neil Campbell was laid off in January 2009 but was rehired in
September 2009 despite inferior attendance ratings. However, it is undisputed
that at the time Campbell was laid off he had achieved a satisfactory attendance
rating in the most recent thirteen-week rolling attendance period prior to the
layoff. During that thirteen-week period he had one absence and one late arrival.
In contrast, Wilkins had an unsatisfactory attendance rating for that same period
in which he had four absences from work. Further, J.C. Penney has presented
evidence that it considered those most recent thirteen-week rolling period
attendance ratings to determine which employees were eligible for rehire.
Therefore the fact that O’Neil Campbell had accrued more unsatisfactory
attendance ratings in total than Wilkins over his career at J.C. Penney cannot
raise an inference of discrimination in light of the fact that J.C. Penney
considered the most recent thirteen-week period attendance ratings to determine
rehire eligibility. As O’Neil Campbell had a better attendance rating than Wilkins
for that period prior to the layoff which was the basis for J.C. Penney’s
determination regarding rehire eligibility, no reasonable juror could find that
O’Neil Campbell was similarly situated to Wilkins. “It is well settled that
employees are not similarly situated if they have materially different disciplinary
records.” Dinkins v. Suffolk Transp. Serv., Inc., No. 07–CV–3567, 2010 WL
2816624, at *10 (E.D.N.Y. July 15, 2010) (collecting cases); Rosario v. Hilton Hotels
Corp., 476 F. App’x. 900, 901 (2d Cir. 2012) (holding that although some of the
plaintiff's co-workers received greater wage increases than the plaintiff, “he failed
to establish that he was ‘similarly situated’ to those employees, given his
disciplinary history at that time”); Santiago v. City of New York, No. 05–CV–3668,
2009 WL 935720, at *10 (E.D.N.Y. Mar. 31, 2009) (“[P]laintiff's history of
absences and attendance counseling makes her not similarly situated to other
[correctional officers] with similar records and tenure but without a history of
absenteeism.”). Here, O’Neil Campbell is not similarly situated to Wilkins
because he had a materially better attendance rating in the period on which J.C.
Penney based its rehire eligibility determination.
Wilkins also contends that an inference of disability discrimination and
pretext is demonstrated by the fact that there was no written policy that an
unsatisfactory attendance rating will make an employee ineligible for rehire and
by the fact that he should not have obtained an unsatisfactory attendance rating
prior to being laid off. Wilkins contends that he should not have obtained an
unsatisfactory rating because his PTO absences should not have been
considered absences under J.C. Penney’s policy and because he was not notified
of his unsatisfactory rating as required by J.C. Penney’s policy. Wilkins reasons
that PTO absences should not be counted under the policy because it was neither
communicated to him nor expressly part of the policy that PTO absences would
count towards attendance ratings. However, none of these points raises genuine
issues of material fact as to whether J.C. Penney either perceived Wilkins as
disabled within the meaning of the ADA or whether their proffered reason was a
pretext for unlawful disability discrimination. The fact that J.C. Penney did not
have a written policy setting forth eligibility for rehire without more cannot raise
an issue of material fact, nor can Wilkins’ disagreement with how PTO absences
were treated under the policy or the fact that he wasn’t notified of his rating.
Moreover, Wilkins has failed to present any evidence that J.C. Penney
discriminatorily applied its attendance policy, for example, by not treating PTO
absences of similarly situated non-disabled employees as absences under the
policy counting towards the attendance rating. This is particularly true as J.C.
Penney contends and Wilkins does not dispute that he was laid-off by application
of J.C. Penny’s long-standing lay-off policy. Wilkins does unavailingly contend
that the policy was not evenly applied, a contention which the Court addressed
Wilkins also argues that an inference of discrimination is demonstrated by
the fact that he was never informed that he had accrued an unsatisfactory
attendance rating prior to being laid off and by the fact that he was the most
senior employee laid off. Wilkins acknowledged in writing his receipt and review
of J.C. Penney’s attendance policy and therefore should have known the
implications of his absences without having to be told. In addition, presumably
he was absent legitimately and thus a prior warning would not have altered his
rating. Further, no juror could conclude that Wilkins was discriminated against
as a result of a perceived disability because he had not been informed after
December 14, 2008 that his latest absence had triggered an unsatisfactory
attendance rating based on a policy with which he acknowledged his familiarity.
In sum, J.C. Penney’s development and consistent application of its lay-off
policy fails to raise genuine issues of material fact that Wilkins’ seniority and
absence rating were pretexts for disability discrimination. There is no discernible
nexus between Wilkins’ seniority and absence rating on one hand and a
perceived disability on the other hand.
Wilkins also contends that his supervisor, Christensen, perceived him as
disabled because during his deposition Christensen testified to remembering a
piece of medical documentation that outlined work restrictions for Wilkins
resulting from his back injury which was not included in J.C. Penney’s medical
file on Wilkins. Wilkins argues that the fact that this document was missing from
his file supports an inference that J.C. Penney intentionally removed this
document to conceal its knowledge of his limitations. First, even in the absence
of this document, Wilkins’ file was replete with evidence that he sustained and
was being treated for a back injury, that he was temporarily disabled, that he
could only perform, requested and received light duty, and that he took FMLA
leave due to his disability. Any missing document is cumulative of the evidence
in his file and this it is implausible that the document was removed to conceal
Further, as explained above, the fact that Christensen was aware of both
Wilkins’ injury and limitations and accommodated the work restrictions
recommended by Wilkins’ doctor cannot establish that Christensen regarded
Wilkins as having a disability within the meaning of the ADA regardless of
whether the document was or was not a part of Wilkins’s file. Further, the fact
that this document was absent from J.C. Penney’s file on Wilkins does not
support a reasonable inference that J.C. Penney intentionally removed it to cover
up its illegal discrimination. Such speculation cannot stand in the place of
reasonable inferences drawn from admissible evidence. Accordingly, no
reasonable juror could conclude based on this evidence that Christensen
perceived Wilkins to be disabled for ADA purposes or that J.C. Penney
intentionally destroyed evidence in Wilkins’ file to cover up its bias.2
Lastly, Wilkins argues that the temporal proximity between his injury in
July 2008 and the end of his FMLA leave in September 2008 and the date he was
laid off in January 2009 supports an inference of discrimination based on
perceived disability. In support of this argument, Wilkins mistakenly applies the
holdings, concepts and terminology from precedent regarding First Amendment
retaliation claims, Gorman-Bakos v. Cornell Co-Op Extension of Schenectady
County, 252 F.3d 545 (2d Cir. 2001) and retaliatory discharge claims, Reed v. A.W.
Lawrences & Co.,Inc., 95 F.3d 1170 (2d Cir. 1996), which are not applicable to his
general claim for employment discrimination. Wilkins has not asserted claims
for retaliatory discharge under the ADA, retaliation under the FMLA, or First
Amendment retaliation and therefore his arguments regarding a causal
connection through temporal proximity between the “protected activities” of his
injury / FMLA leave and his layoff are misguided.3
As there is no evidence that Christensen perceived Wilkins to be disabled within
the meaning of the ADA or was driven by anti-disability animus, the dispute of
fact regarding whether Christensen and Sanzo were involved in the decisions to
lay off and then not rehire Wilkins which is predicated on Wilkins’
characterization of Christensen’s testimony as inconsistent is immaterial.
Assuming that Christensen and Sanzo were involved in those decisions, because
there is no evidence that would support an inference that either of them
perceived Wilkins to be disabled for ADA purposes and were biased against the
disabled, their role in such a determination could not demonstrate that J.C.
Penney failed to rehire Wilkins because of a perceived disability.
To the extent that Wilkins is attempting to assert a retaliatory discharge claim
under the ADA, a FMLA retaliation claim or a First Amendment retaliation claim,
he may not do so as“[i]t is inappropriate to raise new claims for the first time in
submissions in opposition to a summary judgment motion.” Thomas v. Egan, 1
F. App'x 52, 54 (2d Cir. 2001); see also Greenidge v. Allstate Ins. Co., 446 F.3d 356,
The Court will consider Wilkins’ broader argument that an inference of
perceived disability discrimination is demonstrated by the temporal proximity
between his injury in July or the end of his FLMA leave in September and when
he was laid off six and four months respectively later in January despite the fact
that he has not legally asserted this claim. As discussed above, the fact that
Wilkins suffered an injury and was granted FMLA leave alone cannot establish
that J.C. Penney regarded him as disabled for ADA purposes irrespective of any
temporal proximity between that injury or FMLA leave and his layoff. Moreover,
assuming that an inference of perceived disability discrimination could be drawn
from the fact that Wilkins was laid off six months after injuring his back and four
months after returning from FMLA leave, the undisputed facts that Wilkins
returned to work and performed his regular duties without any restrictions for
four months prior to his layoff and without any inquiries concerning his back for
three months prior to his layoff would defeat such an inference. For all of the
above reasons, Wilkins has failed to present a question of material fact as to
whether J.C. Penney perceived him as disabled within the meaning of the ADA or
whether J.C. Penney’s stated reason for failing to rehire him was pretext for
361 (2d Cir. 2006) (declining to reach merits of argument raised for first time in
opposition to summary judgment); Russo v. Keough’s Turn of the River
Hardware, LLC, No.11CV994, 2012 WL 4466626, at *6 (S.D.N.Y. Sept. 25, 2012) (“It
is well-settled that a court is not required to consider new theories of liability
raised for the first time in opposition to summary judgment.”); Scott v. City of
New York Dep't of Corr., 641 F. Supp. 2d 211, 229 (S.D.N.Y. 2009) (explaining that
facts and theories raised for the first time in opposition to summary judgment
should not be considered in resolving a summary judgment motion), aff'd, 445 F.
App'x 389 (2d Cir. 2011); Hughes v. McWilliams, No. 04 Civ. 7030(KMW), 2009 WL
4823940, at *13 n. 6 (S.D.N.Y. Dec.15, 2009) (same).
For the foregoing reasons, the Court GRANTS Defendant’s [Dkt. # 25]
motion for summary judgment. The Clerk is directed to enter judgment in favor of
Defendant and to close the case.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 22, 2013
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