Turner v. Eastconn Regional Education Service Center et al

Filing 35

ORDER granting defendants' 29 Motion for Summary Judgment on the plaintiff's federal law claims, and dismissing remaining state law claims without prejudice to pursuing those claims in state court. See the attached order. Signed by Judge Vanessa L. Bryant on 12/2/2013. (Burkart, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

REBECCA A. TURNER,
Plaintiff,
v.
EASTCONN REGIONAL EDUCATION
SERVICE CENTER; PAULA COLEN;
STEVEN WAPEN; DORIS DYER;
THOMAS CRONIN; and RONALD MORIN,
Defendants.

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CIVIL ACTION NO.
3:12-CV-00788 (VLB)

December 2, 2013

MEMORANDUM OF DECISION GRANTING IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT [Dkt. #29]

I.

Introduction

The Plaintiff, Rebecca Turner, brings this action against Defendants,
EASTCONN Regional Education Service Center (“EASTCONN”), Paula Colen,
Steven Wapen, Doris Dyer, Thomas Cronin, and Ronald Morin alleging various
violations related to alleged employment discrimination. Defendants have moved
for summary judgment pursuant to Fed. R. Civ. P. 12(b)(1), lack of subject matter
jurisdiction, and 12(b)(6), failure to state a claim upon which relief may be granted
with respect to several counts in the Complaint, including: Count I, violations of
Connecticut Fair Employment Practices Act (“CFEPA”); Count II, violations of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.,
(“Title VII”) and the Civil Rights Act of 1991, as amended by the Pregnancy
Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”); Count V, violations of the
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Family Medical Leave Act, 42 U.S.C. § 2611, et seq. (“FMLA”); and Count VI,
violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(“ADA”). For the following reasons, Defendants’ motion for summary judgment is
GRANTED as to the claims arising from federal statutes and all other claims are
DISMISSED without prejudice to proceeding in state court.
II.

Background

EASTCONN is a regional educational service center established in accordance
with Connecticut state law. See Conn. Gen. Stat. § 10-66a. The other defendants
at all relevant times were employees of EASTCONN, holding various supervisory
positions over the plaintiff: Colen is and was the Executive Director, Wapen is
and was the Director of Human Resources, Dyer is and was the Autism Clinical
Director or Director of Autism and Clinical Services, Cronin is and was the
Director of Education Services, and Morin is and was the Director of Special
Services. [Dkt. #29-2, Defendant’s 56(a)(1) Statement, ¶¶ 2-6].
The plaintiff began her employment with EASTCONN on November 4, 2008 as
an instructional assistant, and on April 8, 2009, she was hired as a long-term
substitute in EASTCONN’s Autism Program, a program that serves children with
autism spectrum disorders and other developmental impairments. [Id. at ¶ 8].
Shortly thereafter, on July 6, 2009, she was hired to work as a full-time teacher in
the Autism Program. [Id.].
For the 2009-2010 academic year, the plaintiff held dual teaching certifications
form the State Department of Education: pre-kindergarten through kindergarten
special education instruction and pre-kindergarten through third-grade regular
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education instruction. [Id. at ¶ 9, Dkt. #29-11, Deposition of Rebecca Turner,
55:19-25]. Shortly after she was hired as a full-time teacher, the plaintiff joined
the EASTCONN Federation of Teachers – the local union responsible for
representing members of the teachers’ bargaining unit at EASTCONN. [Dkt. #292, ¶ 10; #29-11, 56:1-6]. Even though the plaintiff was hired as a full-time teacher,
she never became a tenured teacher and, therefore, never received the benefits
that a tenured position provides. [Dkt. #29-2, ¶ 10(b)].
For the 2009-2010 school year, the Autism Program serviced three students
ranging in age from seven to nine or ten. [Dkt. #29-11, 51:20-25]. The students
were at different points on the autism spectrum, but all generally exhibited
aggressive behavior at various times. [Id. at 53:1-14]. During that year, the
students were taught by two special education teachers, one of whom was the
plaintiff, and assisted by two paraprofessionals. [Id. at 45:5-15]. Generally, each
classroom in the autism program had one lead teacher responsible for critical
administrative duties and case management tasks; the lead teacher also did not
provide direct, one on one instruction, but gave group instruction to the entire
class. [Dkt. #30-11, II ¶¶ 2-3; Dkt. #29-11, 152:5-21]. The other teachers and/or
paraprofessionals were required to provide one on one instruction to the
students. [Dkt. #30-11, II ¶¶ 2-3]. Teachers were required to respond to students
who were often upset and reactive. [Dkt. # 30-4, EASTCONN Annual Appraisal
Report, p. 4].
As a regular full-time teacher not designated as the lead teacher, two-thirds of
the plaintiff’s time was spent providing direct instruction to students in the
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classroom while the remaining third was spent on administrative tasks such as
lesson planning, evaluations and assessments. [Id. at 49:9-12, 84:3-9]. During
the course of this instruction, teachers, including the plaintiff, were often, even
sometimes daily, called upon to restrain students who had become aggressive.
[Id. at 52:15-24]. Restraining the students posed physical risks; the plaintiff
admitted that she was injured while restraining a student, but the extent of the
injuries suffered thus far were admittedly minor, including just a “scratch.” [Id. at
53:5-15].
While serving as a full-time teacher, the plaintiff became pregnant with twins
due on December 26, 2010, but ultimately delivered on November 24, 2010. [Dkt.
#1, Complaint, ¶ 9]. In April 2010, the plaintiff notified Dyer, her immediate
supervisor, of her pregnancy. [Dkt. #29-11, 62:9-13]. Furthermore, on April 26,
2010, the plaintiff submitted a doctor’s note to Dyer stating “[t]his is to confirm
that the [plaintiff] is under my care and currently receiving treatment. Please
excuse her from restraining activities until further notice.” [Dkt. #29-9, Doctor’s
Note dated April 7, 2010, p. 1]. As a result of this notice, the plaintiff was not
required to restrain students for the duration of her pregnancy. [Dkt. #29-11,
65:1-5]. The plaintiff also alleges that she began to notice Dyer treating her
differently after submitting this note. For example, the plaintiff stated that when
she gave this first note, Dyer asked if she “could even work?” [Dkt. #29-2, ¶ 65].
Subsequently, the plaintiff alleged that Dyer remarked that the plaintiff did not
“even look pregnant,” and Dyer peaked into the plaintiff’s classroom windows
while the plaintiff was on her lunch break making personal phone calls. [Id.].

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Even so, on May 28, 2010, at the conclusion of the 2009-2010 academic year, the
plaintiff received positive feedback from Dyer in her annual evaluation.
Specifically, Dyer noted that the plaintiff “is to be commended in several areas.
She is perceptive and brings an attention to details [sic] to discussions and
planning that is helpful. Her calm manner is beneficial in a classroom that often
needs to respond to students who are upset and reactive. And she is a
supportive and encouraging team member.” [Dkt. # 30-4, EASTCONN Annual
Appraisal Report, p. 4].
Following the conclusion of the academic year, the plaintiff worked in
EASTCONN’s academic summer program as a lead teacher and was in charge of
the summer program. [Dkt. #29-11, 65:23-67:23]. After the summer program
ended, the plaintiff returned to her position as a regular teacher in the autism
program, and Ms. Buchanan was designated as her lead teacher for the 2010-2011
year. [Dkt. #29-2, ¶ 48]. On September 8, 2010, the plaintiff submitted a second
doctor’s note to Dyer that stated “Rebecca Turner is pregnant with twins due
12/26/2010 and should not be working closely with children who can become
aggressive.” [Dkt. #1, ¶ 23; Dkt. #29-9, Doctor’s Note dated September 7, 2010, p.
2]. On September 9, 2010, Dyer told the plaintiff that EASTCONN’s Human
Resources’ personnel were discussing the situation, and on September 9 and 10,
EASTCONN temporarily accommodated the plaintiff’s condition by assigning her
exclusively administrative tasks. [[Dkt. #1, ¶¶ 27, 28].
Dyer next met with the plaintiff on September 13 to inform the plaintiff that she
would be required to take FMLA leave starting on September 27 because
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EASTCONN was only able to accommodate the plaintiff’s new restriction for two
weeks. [Id. at ¶ 29].
On September 14, the plaintiff spoke with Wapen who told her that he
understood there was “non-classroom” work available, but that the amount was
miniscule, and there was no safe place in the classroom for her to work given the
students’ propensity for aggressive behavior. [Dkt. #29-11, 91:16-92:5; Dkt. #3010, Deposition of Steven G. Wapen, 90:20-91:7]. On September 15, the plaintiff
contacted the union regarding the pregnancy-related employment issues at
EASTCONN, but neither the plaintiff nor the union filed a grievance pursuant to
the collective bargaining agreement entered into between EASTCONN and the
union. [Dkt. #29-11, 95:9-13, 103:4-7; Dkt. #1, ¶ 34]. Moreover, the union
representative told the plaintiff that it was her understanding that if the plaintiff
could not perform essential functions of her employment and there was no other
position available at EASTCONN, she would need to take FMLA-designated leave.
[Dkt. #29-11, 97:2-23].
Between September 20 and October 1, 2010, the plaintiff discussed with Dyer
and Cronin her concerns about not having sufficient FMLA leave after the
delivery of her children if she was forced to take leave starting at the end of
September. [Dkt. 29-2, ¶¶ 41-44; Dkt. #30-11, II ¶ 6]. The plaintiff alleged that
when meeting with Cronin, she asked for the possibility of obtaining additional
FMLA leave once the twelve weeks expired, but he said that her request would be
denied. [Dkt. #29-11, 102:12-24]. Cronin further advised the plaintiff to obtain a
new doctor’s note stating that the plaintiff would be allowed to continue working
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until her projected due date. [Dkt. #1, ¶ 41; Dkt. #29-2, ¶ 44]. Accordingly, on
September 27, the date she was supposed to start FMLA leave, the plaintiff
submitted a third doctor’s note which stated that the plaintiff could “perform all of
her job responsibilities with the exception of having one on one contact with
aggressive children.” [Dkt. #1, ¶ 42, Dkt. #29-2, ¶ 45]. The plaintiff was not aware
of any other suitable open positions at EASTCONN at that time, but alleges that
she should have been permitted to replace Ms. Buchanan as lead teacher until
her delivery or should have been assigned administrative duties until such time
as she could resume direct instruction with the students. [Dkt. #30-10, ¶¶ 8, 9, 17;
Dkt. #29-11, 111:11-25; Dkt. #30-11, ¶ 8].
EASTCONN permitted the plaintiff to continue working until October 1, 2010
while it examined and considered the plaintiff’s third doctor’s note. [Dkt. #29-11,
109:10-18]. On October 1, 2010, it was determined that the third note did not alter
the underlying issue created by the second note, namely that the plaintiff was not
permitted to perform an essential function of her employment: providing direct
instruction to the autistic students. Therefore, she was required to take FMLA
leave starting on October 4, 2010. [Id.].
During her FMLA leave, the plaintiff concurrently used her accrued paid sick
leave and personal leave time until such leave was exhausted. [Id. at 114:2-17;
Dkt. #29-2, ¶ 53]. The plaintiff was freely given the entirety of her twelve weeks of
FMLA leave which began on October 4, 2001 and ended on January 4, 2011. [Dkt.
#29-11, 137:15-17, 109:14-18; Dkt. #29-2, ¶¶ 55-56].

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On December 30, 2010, Wapen called the plaintiff and informed her that her
FMLA leave was coming to an end, and that if she did not return to work on
January 5, 2011, she would be terminated. [Dkt. #29-11, 123:8-22; Dkt. #29-2, ¶
59]. At that time, the plaintiff indicated that she was unable to return to work on
January 5 because her children’s premature births caused health issues that
required her attention, and she was unable to provide to Wapen a date by which
she would be able to return. [Dkt. #29-11, 125:13-19; Dkt. #1, ¶ 49; Dkt. #29-29-2,
¶¶ 59-60; Dkt. #30-11, I ¶ 60(a)]. The plaintiff also alleges that on that call she
requested additional leave from Wapen, but that he denied her request. [Dkt. #3011, II ¶ 6]. Accordingly, the plaintiff was terminated by EASTCONN on January 5,
2011 and has not since applied for any open positions at EASTCONN. [Dkt. #29-2,
¶ 61; Dkt. #30-11, I ¶ 61].
The plaintiff filed this action alleging violations of numerous state and federal
employment and disability protection statutes. In bringing these claims, she
summarily alleged that another pregnant EASTCONN employee, Allyson Carter,
received accommodations that the plaintiff herself did not receive. [Dkt. #29-11,
126:4-12; Dkt. #29-2, ¶ 62]. The defendants allege, however, that Ms. Carter
received the same accommodations as the plaintiff, namely that they were both
excused from restraining students. [Dkt. #29-2, ¶ 63]. The defendants also allege
that other EASTCONN employees have been terminated after their failure to
return to work when their FMLA leave expired, including another teacher, Ms.
Jacobs, and a driver, Ms. Easton. [Dkt. #29-2, ¶ 66; Dkt. #30-7, ¶ 21].

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III.

Legal Standard

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
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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).
A. ADA Claims
The plaintiff alleges that “as a result of the restrictions placed on her by her
physician(s), [she] was actually impaired or disabled or perceived as” disabled by
the defendants. [Dkt. #1, ¶ 60]. The plaintiff further argues that the defendants
discriminated against her because of her disability by not accommodating her
during the pendency of her pregnancy. [Dkt. #29-11, 102:2-5, 108:1-14; Dkt. #3011, II ¶ 2]. The defendants argue they should be awarded summary judgment on
these claims because: (1) the plaintiff was not disabled under the ADA; (2) the
defendants did not perceive her as disabled; (3) even if the defendants perceived
her as being disabled, “regarded as” ADA claims are not subject to the
reasonable accommodation requirement; (4) the plaintiff’s disability did not
impair a major life activity; and (5) the defendants did not fail to provide
reasonable accommodation. [Dkt. #29-1, Memorandum of Law in Support of
Defendants’ Motion for Summary Judgment, p. 4-18]. In response, the plaintiff
only argues that she was perceived as being disabled by the defendants because
of the way they treated her and was discriminated against because the

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defendants did not permit her to work until her due date. [Dkt. #30, Memorandum
of Law in Opposition to Motion for Summary Judgment, p. 5-11].
From the complaint, it appears that the plaintiff is alleging discrimination
based both on adverse employment action and failure to accommodate. The
Court will examine both of these standards, therefore, in turn.
i.

Discrimination Based on Failure to Accommodate

A plaintiff presents a prima facie case of disability discrimination arising from
a failure to accommodate by showing: “(1) [P]laintiff 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.” McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d
92, 96-7 (2d Cir. 2009) (internal quotation marks and citations omitted).
Defendants do not contest that they are covered by the ADA and had notice that
the plaintiff was pregnant. So, the second factor is not contested.
First, the plaintiff must demonstrate that she was disabled within the meaning
of the ADA. As this claim arises after January 1, 2009, the ADA Amendment Act
of 2008 (“ADAAA”) governs the analysis. It is clear that the ADAAA “substantially
broadened the definition of a disability” in response to Supreme Court decisions
that strictly defined the term “disability” under the ADA. See Wanamaker v.
Westport Bd. of Educ., 899 F. Supp. 2d 193, 210 (D. Conn. 2012) (quoting
Hutchinson v. Ecolab, Inc., No. 3:09cv1848(JBA), 2011 WL 4542957, at *7 (D.
Conn. Sept. 28, 2011)). “Disability” is defined as “(A) a physical or mental
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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.” 42 U.S.C. § 12102(1). The ADAAA enlarged the
interpretation of the ADA’s three-category definition of “disability.” For example,
“‘major life activity’ [under the first definition of disability now] includes ‘caring
for oneself, performing manual tasks . . . 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.’” Wanamaker, 899 F. Supp. 2d at 210 (quoting
Hutchinson, 2011 WL 4542957, at *8)).
Equal Employment Opportunity Commission (“EEOC”) regulations
implementing the ADAAA, although having no binding effect on this Court, are
“useful to understanding the intended meaning of the Amendments.”
Wanamaker, 899 F. Supp. 2d at 210 (internal quotation marks and citations
omitted). The EEOC regulations provide that under the ADAAA, an impairment is
a disability within the meaning of the statute where “it substantially limited the
ability of an individual to perform a major life activity as compared to most people
in the general population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life activity in order to be
considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). The regulations
further clarified that “[a]n impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when active.” 29 C.F.R.
§ 1630.2(j)(1)(vi). Accordingly, “temporary, non-chronic impairments of short-

12

duration, with little or no longer term or permanent impact, are usually not
disabilities.” Wanamaker, 899 F. Supp. 2d. at 211 (internal quotation marks and
citations omitted); see also Green v. N.Y. City Health & Hosp. Corp., No.
04cv5144(PAC), 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.”) Even after
the ADAAA, this Court has held that short-term impairments do not
render a person disabled within the meaning of the
statute. EEOC interpretive guidance explains that the
“effects of an impairment lasting or expected to last
fewer than six months can be substantially limiting
within the meaning of this section” however “[t]he
duration of an impairment is one factor that is relevant
in determining whether the impairment substantially
limits a major life activity. Impairments that last only for
a short period of time are typically not covered,
although they may be covered if sufficiently severe.”
Wanamaker, 899 F. Supp. 2d at 211 (quoting 29 C.F.R. pt. 1630, App.)
Given these parameters, “[p]regnancy does not typically constitute a disability
under the ADA.” Wanamaker, 899 F. Supp. 2d at 211 (quoting Sam-Sekur v.
Whitmore Group, Ltd., No. 11-cv-4938(JFB)(GRB), 2012 WL 2244325, at *7-8
(E.D.N.Y. June 15, 2012) (collecting cases); see also Kucharski v. Cort Furniture
Rental, 536 F. Supp. 2d 196, 202 (D. Conn. 2007), rev’d on other grounds on
reconsideration, 594 F. Supp. 2d 207 (D. Conn. 2008), aff’d, 342 F. App’x 712 (2d
Cir. 2009) (“Courts have proved reluctant to afford ADA protection to alleged
disabilities related to pregnancy except in extremely rare cases where the
complication from the pregnancy is substantial enough to qualify as a
disability”).

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Here, the plaintiff alleges that she is disabled because she was pregnant.
However, the plaintiff has not alleged that there were severe complications
caused by the pregnancy that would render her disabled under the ADA.
Conversely, she admitted that she had no pregnancy-related complications when
she was pregnant with her twins. [Dkt. #29-11, 115:5-8]. It appears, although it is
difficult to be certain because the plaintiff did not respond to this point in her
opposition to the motion for summary judgment, that the plaintiff relies on the
claim that the doctor’s notes substantially limited her major life activity of
working, thus bringing her pregnancy into the ambit of the statutory definition of
disability. See McDonald v. City of New York, 786 F. Supp. 2d 588, 606 (E.D.N.Y.
2011) (“Notably, not every physical or mental impairment serves to establish an
actual disability under the ADA. Rather, only those impairments that ‘limit a
major life activity’ in a ‘substantial’ manner are statutorily recognized
disabilities.’” (citations omitted)).
In order to be substantially limited in the major life activity of “working,” the
plaintiff is required to show that “she was precluded from more than one type of
job, a specialized job, or a particular job of choice.” Reynolds v. Town of Suffield,
No. 3:10cv1528(JBA), 2012 WL 3135896, at *7 (D. Conn. July 31, 2012) (citing Pare
v. City of Bristol, 386 F. Supp. 2d 43, 39 (D. Conn. 2005)); see also, Cardo v.
Arlington Cent. School Dist., 473 F. Appx. 21, 24 (2d Cir. 2012) (finding that a
plaintiff failed to prove a substantial limitation on working when a doctor’s note
prevented him from performing “his particular” job). “In the rare cases where an
individual has a need to demonstrate that an impairment substantially limited him

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or her in working, the individual can do so by showing that the impairment
substantially limits his or her ability to perform a class of jobs or broad range of
jobs in various classes as compared to most people having comparable training,
skills, and abilities.” 29 C.F.R. Pt. 1630, App.
Here, the plaintiff’s first doctor’s note prohibited her from restraining students
who had become aggressive. By the third note, she was prohibited from working
one on one with aggressive students. [Dkt. #29-9, Doctor’s Note dated September
24, 2010, p. 3]. Clearly, these notes do not severely limit the plaintiff from
working generally, as would a note that, for example, required the plaintiff to
remain bed-ridden for the duration of her pregnancy. Instead, these letters only
prevented the plaintiff from giving direct instruction to students in the autism
program. The plaintiff argues that her impairment actually prohibited her from
working in a broad class of jobs because the defendants, employing over 500
people in various positions, conceded “that they found no suitable jobs at
EASTCONN that Plaintiff could have performed while pregnant.” [Dkt. # 30, p. 910]. This is an inaccurate characterization of the defendants’ testimony.
Defendants stated that there were no “available suitable” positions in the
organization at that time. [Dkt. #29-4. Affidavit of Steven Wapen, ¶ 17]. The key
here is the plaintiff’s admission that there were positions at EASTCONN for which
she could perform all of the necessary functions. She concedes, therefore, that
she was able to work, just not in her particular job. Moreover, the defendants’
testimony was not that they were unable to find her a position, but that they were
unable to find her a vacant position, and the plaintiff has offered no evidence

15

proving such vacancies existed. Therefore, this Court views unavailing the claim
that since EASTCONN was unable to find an open position for her at that time, the
plaintiff sufficiently demonstrated an impairment on “working.” Given that the
plaintiff has not presented any evidence showing that her pregnancy was of such
a complicated nature to permit the Court to stray from the accepted holding that
pregnancies are not disabilities under the ADA and the fact that the plaintiff has
not demonstrated how her impairment limited a major life activity, no reasonable
trier of fact could find that the plaintiff has a disability as defined in the ADA.
Second, for a prima facie claim of employment discrimination based on a
failure to accommodate under the ADA, the plaintiff must prove that with
reasonable accommodation, she could have performed the essential functions of
her job. A “reasonable accommodation can never involve the elimination of an
essential function of a job,” and “[i]n approaching this inquiry, [a] court must give
considerable deference to an employer’s judgment regarding what functions are
essential for service in a particular position.” Shannon v. New York City Transit
Auth., 32 F.3d 95, 100 (2d Cir. 2003); Palmieri v. City of Hartford, No.
3:11cv149(JCH), 2013 WL 2398365, at *11 (D. Conn. May 31, 2013). “In the context
of the ADA, reasonable accommodation may include, inter alia, modification of
job duties and schedules, alteration of the facilities in which a job is performed,
acquisition of devices to assist the performance of job duties, and, under certain
circumstances, reassignment to a vacant position.” McBride, 583 F.3d at 97
(internal quotation marks and citations omitted).

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Here, the plaintiff stated that roughly two-thirds of her time was spent
providing direct instruction to autism program students who have a tendency to
become aggressive. [Dkt. #29-11, 102:2-5]. Giving due deference to the
defendants’ determination that this task comprised an essential aspect of the
plaintiff’s job, providing an accommodation that would preclude the plaintiff from
performing this instruction would eliminate an essential job function, and,
therefore, by definition is not reasonable.
The plaintiff contends that there were other reasonable accommodation
options: she could perform administrative tasks, be assigned to instruct less
aggressive children, or take the place of the current lead teacher until she was no
longer pregnant. [Dkt. #30-11, II ¶ 2]. As to the first option, EASTCONN
determined that assigning the plaintiff to administrative tasks was not reasonable
because there was not a sufficient amount of administrative work to keep a fulltime employee occupied. As to the second option, the plaintiff has offered no
evidence that there were less aggressive students in the program to whom she
could have been reassigned. Nor would such an accommodation appear to have
been appropriate. Her doctor’s notes were not qualitative; they unequivocally
prohibited her from working with all children who could become aggressive. As
to the third option, it is not reasonable to move multiple employees to different
positions to accommodate one disabled employee. Indeed, it is clear that only in
certain circumstances is it even reasonable to move an employee to a vacant
position. See McBride, 583 F.3d at 97 (internal quotation marks and citations
omitted). In Medlin v. Rome Strip Steel Co., Inc., the court granted summary

17

judgment when an employee with back related injuries failed to prove reasonable
accommodation was available because he did not provide any evidence that
another position was “vacant” and had “terms and conditions of employment
equivalent to that of his prior job.” 294 F. Supp. 2d 279, 291 (N.D.N.Y. 2003). The
plaintiff here has not offered any evidence that a vacant position existed; instead,
she would have the defendants permit her to “temporarily adopt the role of lead
teacher,” by removing Ms. Buchanan from that position. [Dkt. #30-11, II ¶ 2]. To
affect another employee in this way is not reasonable. Accordingly, the plaintiff
has not met her burden in showing that reasonable accommodation exited.
For these reasons, the plaintiff has failed to demonstrate a possibility of
success on her ADA claim based on failure to accommodate.
ii.

Discrimination Based on Adverse Employment Action

To establish a prima facie case of discrimination arising from adverse
employment action, 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. WalMart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008); see also Wanamaker, 899 F.
Supp. 2d at 209. Again, the defendants do not allege that they are not subject to
the ADA, so that element is conceded.
First, as discussed above, the plaintiff is not actually disabled within the
meaning of the ADA. Moreover, the plaintiff has not raised a sufficient issue of
18

material fact as to whether the defendants perceived her as being disabled
because her pregnancy was transitory, not permanent. In the prior version of the
statute, the definition of perceived disability included only those physical or
mental impairments that were perceived to substantially limit a major life activity.
After January 1, 2009, a plaintiff is no longer required to show that the alleged
physical or mental impairment is perceived to substantially limit a major life
activity, but even “perceived as” claims cannot be based on an impairment that is
known to be “transitory and minor.” 42 U.S.C. § 12102(3)(B). “A transitory
impairment is an impairment with an actual or expected duration of 6 months or
less.” Id. In Sam-Sekur v. Whitmore Group, Ltd., the court held that a plaintiff
alleging a violation of the ADA based on pregnancy failed to sustain a motion to
dismiss because pregnancy without any other complications is not by itself an
impairment under the statute. Sam-Sekur, 2012 WL 2244325, at *8; see also
Marchioli v. Garland Co., Inc., No. 5:11-cv-124(MAD/ATB), 2011 WL 1983350, at *6
(N.D.N.Y. May 20, 2011) (pregnancy is not a physical impairment under the ADA
so no “regarded as” claim can survive).
The case law makes clear that pregnancy without allegations of mental or
physical complications therefrom is insufficient for a claim of ADA
discrimination. Moreover, even if the plaintiff has shown that the defendants
perceived her as suffering from some impairment that inhibited her ability to
perform essential functions of her job, she has not alleged any facts showing that
the defendants perceived her pregnancy as being permanent. The defendants
became aware that the plaintiff was pregnant in April 2010 when she submitted

19

her first doctor’s note and told Dyer that she was expecting. At that point, her
condition was accommodated by removing from her responsibilities restraining
students. Five months later, she submitted her second doctor’s note which
prohibited her from working closely with children who can become aggressive.
At this point it is reasonable to assume that the defendants believed the plaintiff’s
impairment, if any, would only remain for at most four more months because she
was then at least five months pregnant. This duration is by definition
“transitory.” 42 U.S.C. § 12102(3)(B). Finally, Plaintiff failed to return to work not
because she was physically unable to do so, but rather because her children had
continuing medical needs.
Given the temporal nature of her disability and her stated reason for failing to
return to work, the plaintiff has not raised a genuine issue of fact that the
defendants perceived her as having a disability that was anything but transitory.
Regardless, assuming that the defendants did perceive the plaintiff as having a
sufficient disability under the ADA, as discussed above, there were no reasonable
accommodations that could have been made to allow the plaintiff to continue to
perform her job. Therefore, the plaintiff’s ADA claims must fail.
iii.

Individual Liability under the ADA

The plaintiff also brought ADA claims against each of the individual
defendants. The defendants argue that these claims must be dismissed as a
matter of law because the ADA does not establish individual liability. In
response, rather than withdrawing a claim for which there is no legal support, the

20

plaintiff, without so much as a rational argument why the Court should not follow
precedent, said it would leave this issue to the Court.
Even though the Second Circuit has not issued a published opinion holding
that the ADA does not permit recovery against individual defendants, it has so
held in an unpublished opinion. In Corr v. MTA Long Island Bus, the Second
Circuit found that “there is no right of recovery against individual defendants
under the ADA.” 199 F.3d 1321 (2d Cir. 1999) (unpublished decision), relying on
Tomka v. Seiler Corp., 6 F.3d 1295, 1314 (2d Cir. 1995) (holding that Title VII does
not permit recovery against individual defendants because the use of the word
“employer” would otherwise lead to results not contemplated by Congress.”)
Most courts in this circuit have similarly held that the ADA does not permit
recovery against individual defendants. See Thomas v. New York City Dept. of
Educ., 938 F. Supp. 2d 334, 354-55 (E.D.N.Y. 2013); McAllister v. Connecticut
Renaissance Inc., 3:10cv1488(WWE), 2011 WL 1299830, at *1 (D. Conn. 2011);
Kennedy v. St. Francis Hosp., 225 F. Supp. 2d 128, 144 (D. Conn. 2002); Nelson v.
City of New York, No. 11 Civ. 2732(JPO), 2013 WL 4437224, at *14 (S.D.N.Y. Aug.
19, 2013) (“It is well established that there is no individual liability under the ADA
or the Rehabilitation Act.”). Given the weight of authority in this Circuit, this
Court holds that the ADA does not provide for recovery against individual
defendants, and dismisses the plaintiff’s ADA claims against defendants Colen,
Wapen, Dyer, Cronin, and Morin.
For the foregoing reasons, defendants’ summary judgment motion on the
plaintiff’s ADA claims is GRANTED.
21

B. Title VII Claims
The plaintiff next brings claims for discrimination on the basis of her
pregnancy, in violation of Title VII as amended by the PDA.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on
the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Congress enacted the PDA in 1978 to clarify that “for all Title VII
purposes, discrimination based on a women’s pregnancy is, on its face,
discrimination because of her sex.” Auto. Workers v. Johnson Controls, Inc., 499
U.S. 187, 199 (1991). The ultimate goal of the PDA was to ensure that pregnant
employees are treated identically as other temporarily disabled employees. See
Briggs v. Women in Need, Inc., 819 F. Supp. 2d 119, 126 (E.D.N.Y. 2011). “Unless
the employee on leave has informed the employer that she does not intend to
return to work, her job must be held open for her return on the same basis as
jobs are held open for employees on sick or disability leave for other reasons.”
29 C.F.R. Pt. 1604, App. The plaintiff always bears the burden of proving unlawful
discrimination because of pregnancy in PDA cases. See Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981); Gallo v. Prudential Residential Serv.,
Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (“The plaintiff has the ultimate
burden of persuading the trier of fact that the defendant intentionally
discriminated against her on account of her pregnancy”). Since the plaintiff in
this case has offered no direct evidence to support her PDA claim, as this Court
previously held in the Memorandum of Decision Granting in Part and Denying in
Part Defendants’ Motion to Dismiss [Dkt. #24], the case is analyzed under the
22

burden-shifting framework detailed in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Moreover, this Court also previously held that the plaintiff
sufficiently alleged a prima facie case of pregnancy discrimination. [Dkt. #24, at
17-20].
Under the burden-shifting framework, the burden of production now shifts to
the defendants to “articulate a legitimate, clear, specific and non-discriminatory
reason” for its actions. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995);
see also Flores v. Buy Buy Baby, Inc., 118 F. Supp. 2d 425, 40-432 (S.D.N.Y. 2000).
Adverse employment actions do not just include termination, they may be
indicated by “a demotion evidenced by a decrease in wage or salary, a less
distinguished titled, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.” Galabya v.
New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Crady v.
Liberty Nat’l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). The plaintiff
has alleged at least two adverse employment actions in this case: (i) being forced
to take FMLA leave earlier than she had anticipated which resulted in its early
exhaustion; and (ii) being terminated in January 2011 when her FMLA leave
expired. Both are sufficient to constitute adverse employment actions. See
Baker v. Connecticut, No. 3:03cv1894(JCH), 2006 WL 581205, at *8 (D. Conn. 2006)
(“[F]orced administrative leave, which appears to have lasted roughly four
months, could constitute an adverse employment action because it involved
‘significantly diminished material responsibilities’ over a significant period of
time, such that it could be very disruptive to [plaintiff’s] career even if he had not

23

been terminated at the end of the lave and even though he was suspended with
pay.”)
The defendants have offered several non-discriminatory explanations for the
adverse employment actions. First, they allege that the reason the plaintiff was
required to take FMLA leave starting in October 2010 was that EASTCONN could
not accommodate the plaintiff’s pregnancy after the second doctor’s note
prohibited her from working “closely with children who can become aggressive.”
[Dkt. #29-1, p. 23]. Second, defendants allege that the termination resulted not
from the plaintiff’s pregnancy but from the fact that she was unable to return to
work at the expiration of her FMLA leave because “of her children’s health
issues.” [Dkt. #29-1, p. 20-21; Dkt. #1, ¶ 49]. These reasons are sufficiently clear
to rebut the presumption of pregnancy discrimination. See Flores, 118 F. Supp.
2d at 431 (finding that defendants’ assertions for discharging the plaintiff were
sufficient for the applicable burden of production when defendants claimed the
reason for termination “was because she did not show up to work when she was
scheduled, and because her job performance was deficient”).
Therefore, the burden returns to the plaintiff to show, by a preponderance of
the evidence, that the defendants’ proffered reasons for the adverse employment
actions are pretextual. St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 509 (1993).
The defendants’ explanations cannot “proved to be a pretext for discrimination
unless it is shown both that the reason was false, and that discrimination was the
real reason.” Sabatino v. Flik Int’l Corp., 286 F. Supp. 2d 327, 334-335 (S.D.N.Y.
2003 ) (internal quotation marks and citations omitted). The plaintiff must
24

demonstrate “through direct, circumstantial, or statistical evidence that” the
reasons cited are pretextual and “that it is more likely that [she was discharged]
because of her pregnancy.” Flores, 118 F. Supp. 2d at 431 (citing Gallo, 22 F.3d at
1226 (2d Cir. 1993). “Unlike the minimal burden of establishing a prima facie case
of discrimination, once the defendant has proffered a neutral rationale for the
employment action, the factual inquiry proceeds to a new level of specificity.” Id.
The plaintiff relies on Quaratino v. Tiffany & Co., for support that termination
even after delivery could still be labeled discrimination on the basis of pregnancy.
[Dkt. #30, p. 20]. The plaintiff there made several factual allegations showing that
the pregnancy was the cause of the negative employment treatment. First, the
plaintiff alleged that immediately after she told her supervisors of her pregnancy,
her next employment evaluations turned drastically negative, even though prior
to that disclosure her evaluations were generally positive. Quaratino v. Tiffany &
Co., 71 F.3d 58, 62 (2d Cir. 1995). Second, when she first told her supervisors
about her pregnancy, her immediate supervisor used “an expletive,” and the
supervisor avoided the plaintiff for the rest of the week. Id. at 61. Finally, the
plaintiff in that case was not told about her ultimate discharge which occurred
when she was on leave, but discovered it when she called to advise the human
resources department that she would be returning to work. Id. at 62. Even
though it is unclear whether these facts would have been sufficient to rebut a
proffered explanation by the employer, as the district court in that case was
reversed on a finding that the plaintiff failed to present a prima facie case, the
factual allegations in the present matter are clearly distinguishable.

25

Turner told her employer in April 2010 that she was pregnant. On April 7,
2010, the plaintiff submitted her first doctor’s note which stated that she was
prohibited from restraining students who became aggressive out of a concern
that restraining students could cause harm to the fetuses. If the plaintiff’s
contention is correct that she was discriminated against because of her
pregnancy, not because of her subsequent inability to perform essential
functions of her employment, we would expect to see manifestations of that
discrimination beginning in April. Unlike in Quaratino, there was no immediate
negative reaction to the plaintiff’s pregnancy as one would expect aside from
Dyer’s question if she could still perform her duties. In fact, Turner received a
positive evaluation on May 28, 2010, with Dyer stating the plaintiff “is to be
commended in several areas. She is perceptive and brings an attention to details
to discussions and planning that is helpful. Her calm manner is beneficial in a
classroom that often ends to respond to students who are upset and reactive.
And she is a supportive and encouraging team member.” [Dkt. #30-4, p. 4].
Moreover, the plaintiff admits that EASTCONN accommodated her first doctor’s
note by not requiring her to restrain aggressive students throughout the
pendency of her pregnancy. If the defendants were motivated by an antipregnancy animus, it is not logical that they would so willingly accommodate the
first employment related restriction the plaintiff presented.
On September 7, 2010, the plaintiff presented a second note which stated that
the plaintiff “is pregnant with twins and due 12/26/2010 and should not be
working closely with children who can become aggressive.” The plaintiff claims

26

that because she was not immediately placed on leave and permitted to provide
direct instruction to the students, the defendants’ claim that she could not
perform the essential functions of her job was pretextual. On the contrary, the
defendants’ careful consideration of the note shows that they analyzed possible
alternatives before taking the drastic measure of forcing the plaintiff to take FMLA
leave. Indeed, the plaintiff admits that even though accommodations were not
made immediately when she submitted the note to Dyer, by September 9, 2010,
two days later, she was only performing administrative functions. [Dkt. 29-11,
86:6-87:25]. The plaintiff also admitted that Dyer told her that human resources
was involved in discussing the situation created by the second doctor’s note.
[Dkt. #29-11, 86:12-22]. Wapen confirmed this by stating that he had various
conversations about the new note with Cronin, Dyer, and the plaintiff. [Dkt. #3010, 82:7-14]. Even though the plaintiff was performing administrative tasks at the
time, Cronin encouraged her to see if she could obtain clarification from her
doctor so as to prevent involuntary FMLA leave. The plaintiff then obtained a
third doctor’s note stating that the plaintiff “can perform all of her job
responsibilities with the exception of having one on one contact with aggressive
children.” Ultimately, the defendants’ reached the conclusion that the third
doctor’s note still prevented her from providing direct instruction to the students,
and the defendants could not accommodate that restriction because there were
no suitable positions available for the plaintiff at that time and there were
insufficient administrative tasks to require a full-time position. This thoughtful,
careful, and analytical process shows anything but clear anti-pregnancy animus.

27

Instead, it appears that the defendants genuinely attempted to find a reasonable
solution to the plaintiff’s pregnancy restrictions.
The timeline in this case also shows weighs against the argument that the
defendants were not acting out of an anti-pregnancy animus when they forced the
plaintiff to take FMLA leave. In Pellegrino v. County of Orange, the court held that
“a four month temporal gap between knowledge of pregnancy and adverse
employment action is considered quite weak temporal correction in this Circuit.”
313 F. Supp. 2d 303, 317 (S.D.N.Y. 2004) (citing Clark County School District v.
Breeden, 532 U.S. 268, 273 (2001); Gorman-Bakos v. Cornell Cooperative
Extension of Schenectady Co., 252 F.3d 545, 554 (2d Cir. 2001) (dismissing
employment discrimination claim where time between protected activity and
adverse employment action exceeded five months)). Here, the plaintiff admits
that defendants knew about her pregnancy in April, but did not take any adverse
employment action until, at the earliest, September. This five month gap weighs
heavily in favor of a finding that the defendants were not motivated by pregnancy
hostility.
The plaintiff next argues that the defendants have not met their burden
because they have not proved that there were no other available positions at
EASTCONN that could serve as a reasonable accommodation. [Dkt. #30, p. 20].
On the contrary, the plaintiff has the burden of proof on this issue, and she has
failed to show that there were open suitable positions. Regardless, as discussed
when analyzing the ADA claims, this Court views that sufficient evidence has

28

been produced showing that the plaintiff’s condition could not be reasonably
accommodated.
The plaintiff also argues that Dyer’s negative comments when she became
aware of the plaintiff’s pregnancy and her subsequent behavior prove that she
acted out of hostility. The court in Reilly v. Revlon, Inc., held that negative
comments prior to the “birth of a child do not form the basis of a PDA claim,”
especially when the plaintiff admitted that the defendant “would have reinstated
her at the end of her FMLA leave has she been medically capable of returning to
work.” Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 546 (S.D.N.Y. 2009). Just as in
Reilly, Dyer’s comments are alone insufficient to prove that the adverse
employment actions were because of the plaintiff’s pregnancy. Moreover, as
discussed above, even though Dyer made these comments, the plaintiff received
positive feedback from Dyer shortly thereafter, accommodations for her
pregnancy, and continued support of the EASTCONN staff until it became
impossible to accommodate her enhanced restrictions. Balancing these facts,
Dyer’s three minor comments and alleged suspect behavior is insufficient to
show that Turner suffered adverse employment action due to her pregnancy.
The plaintiff next argues that the defendants could still have discriminated
against her due to her pregnancy by taking action even after her children were
born. [Dkt. #30, p. 20]. We agree with the plaintiff that an employer can violate
Title VII by taking adverse employment action against a plaintiff even after
delivery if the plaintiff shows that the adverse action was taken due to her
pregnancy. See Quaratino, 71 F.3d at 62 (holding that termination even after
29

delivery can still violate title VII if the employee proves that the termination was
the result of discrimination). However, the plaintiff has not proved that it was
indeed the pregnancy that was the cause for her termination. In Quaratino, the
court highlighted several facts that could give rise to indicia of discrimination,
including that the plaintiff alleged she was terminated without even being told of
the termination and only found out when she called human resources telling them
she planned on returning. Id. at 62. Moreover, when she tried to get clarity as to
the reason for her termination, the employer never returned her calls. Id.
Unlike the plaintiff in Quaratino, Wapen called the plaintiff in December asking
her if she would be returning to work at the expiration of her FMLA leave. Even
though it is not explained, and indeed shows a lack of compassion, why the
defendants denied her alleged request for additional leave, the defendants were
under no obligation to permit the plaintiff to extend her leave. The plaintiff’s
contention that the defendants determined to fire her in December, before her
leave expired, is not supported by the evidence. The evidence shows that the
defendants only determined that the plaintiff would be terminated if she did not
return from her FMLA leave. Wapen stated in his deposition that in December
2010 it was determined that “Rebecca Turner may not be coming back at the
conclusion of the FMLA leave, and that based on past practice, agency past
practice, that we would be taking her off payroll at the conclusion of the leave,
which would have been January 4th.” [Dkt. #30-10, 49:19-25]. He later confirmed
this when the plaintiff’s lawyer asked him “when did you make the decision that
she was going to be denied any extended leave?” He responded “[t]hat the

30

decision would have been made in late December, as we were nearing the
expiration of the actual FMLA leave itself.” [Id. at 94:1-6]. Contrary to the
plaintiff’s assertions, this does not prove that the determination to fire the
plaintiff was made before her leave expired; it only proves that the defendants
had discussed what action would be taken if the plaintiff failed to return at the
end of her leave. This is a perfectly appropriate action for an employer to take
because nothing in the FMLA requires an employer to ignore its legitimate
business interests or operational needs by waiting until an employee on leave
affirmatively declares that they will not return before discussing contingency
plans. Furthermore, the plaintiff has failed to present any evidence tending to
show that her employer acted in bad faith. Unlike in Quaratino, the plaintiff was
told prior to her termination by her supervisor of her termination and was given a
frank explanation for that decision on the call. Had these facts been different, the
plaintiff might have raised sufficient evidence making the Court suspicious of the
defendants’ motives. Yet, the evidence before the Court raises no issues of
material fact that could lead a reasonable trier of fact to find for the plaintiff.
Finally, the plaintiff has not demonstrated that she was treated differently than
any other employee who failed to return to work following the expiration of FMLA
leave. The defendants alleged that other EASTCONN employees have been
terminated after their failure to return to work after expiration of their leave,
including Ms. Easton, a driver, who took “FMLA leave for reasons other than
pregnancy.” [Dkt. #29-3, ¶ 21]. In response, the plaintiff stated that “[a]lthough
EASTCONN also claims to have terminated others in similar situations, there is

31

no evidence provided nor does it show that no discrimination occurred here or in
those unknown situations.” [Dkt. #30, p. 20]. While it is true that we cannot
discern whether discrimination occurred in those other instances, it is the
plaintiff’s burden on summary judgment to raise a material issue of fact that
would permit a reasonable jury to find in its favor. The plaintiff has not raised any
facts contradicting the defendants’ allegations that other employees were fired
for not returning from leave.
Given the totality of the evidence, the plaintiff has failed to sufficiently prove
that the reasons defendants offered as to the cause of the adverse employment
actions were pretextual.1
For the foregoing reasons, defendants’ summary judgment motion on the
plaintiff’s Title VII claims is GRANTED.
C. FMLA Claims
The plaintiff argues that the defendants violated the FMLA by: (i) interfering
with her statutory rights in forcing her to take FMLA leave prior to her due date;

1

The plaintiff also made in the complaint a somewhat nebulous claim that
Dyer created a hostile work environment in violation of the PDA. To establish a
hostile work environment in violation of Title VII, the workplace must be
“permeated with discriminatory intimidation, ridicule, and insult” that is
“sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993). The plaintiff’s allegations that Dyer created a hostile
work environment by asking if the plaintiff “could even work,” by stating that the
plaintiff didn’t even “look pregnant,” and by peeking into the plaintiff’s classroom
windows while the plaintiff was on her lunch break making personal phone calls,
does not come close to conduct sufficiently severe to meet the standard for an
abusive and hostile work environment.
32

and (ii) retaliating against her for taking FMLA leave. The defendants argue that
forcing an employee to take FMLA leave is not interference with the rights
bestowed by the statute, and they did not retaliate against the plaintiff for taking
FMLA leave in terminating her when she was unable to return to work.
“The FMLA gives eligible employees an entitlement to twelve workweeks per
year of unpaid leave because of a serious health condition that makes the
employee unable to perform the functions of the position of such employee.”
Spano v. Gengras Motor Cars, Inc., 663 F. Supp. 2d 75, 82 (D. Conn. 2009)
(internal quotation marks and citations omitted). The regulations make clear, and
the parties here do not dispute, that a “serious health condition” entitling “an
employee to FMLA leave means an illness, injury, impairment, or physical or
mental condition that involves . . . [a]ny period of incapacity due to pregnancy, or
for prenatal care.” 29 C.F.R. § 825.114; see also Harvender v. Norton Co., No. 96cv-653(LEK/RWS), 1997 WL 793085, at *7 (N.D.N.Y. Dec. 15, 1997) (“In the instant
case, Norton was informed that Harvender was pregnant, patently a ‘serious
health condition’ under the Act . . . .”). After the twelve week leave period is
taken, “the employee has the right to return to the position he held before the
leave or its equivalent.” Wanamaker, 899 F. Supp. 2d at 204 (internal quotation
marks and citations omitted). “However, if [an employee] is unable to perform an
‘essential function of the position because of a physical or mental condition,
including the continuation of a serious health condition,’ you have no right to
reinstatement.” Id. citing 29 C.F.R. § 825.216(c). The “Second Circuit has
recognized two distinct causes of action under the FMLA: ‘interference’ and

33

‘retaliation.’” Potenza v. City of New York, 365 F.3d 165, 167-68 (2d Cir. 2004);
Voltaire v. Home Services Systems, Inc., 823 F. Supp. 2d 77, 90 (E.D.N.Y. 2011)
(“The Second Circuit recognizes a distinction between claims which allege a
violation of § 2615(a)(1) – so-called ‘interference’ claims – and claims which
allege violations of § 2615(a)(2) and (b), which are called ‘retaliation’ claims.”).
The plaintiff brings claims for both interference and retaliation.
i. Interference Claims
in order to assert a prima facie claim for FMLA interference, the plaintiff must
show that: “(1) she is an eligible employee under the FMLA; (2) that the employer
is an employer as defined in the FMLA; (3) that she was entitled to leave under
the FMLA; (4) that she gave notice to the employer of her intention to leave; and
(5) that she was denied benefits to which he was entitled under the FMLA.”
Wanamaker, 899 F. Supp. 2d at 205 (internal quotation marks, brackets, and
citations omitted). The defendants do not contest that the first four elements
have been met. However, they argue that the plaintiff has failed to prove that she
was denied any benefits to which she was entitled because she was given the full
twelve weeks of leave, as required under the statute. [Dkt. #29-1, p. 29-31]. The
plaintiff concedes that she was given twelve weeks of leave, but argues that the
defendants interfered with her FMLA rights by forcing her to take leave before
she intended to, thus resulting in its premature exhaustion.
The undisputed facts make clear that the plaintiff received twelve weeks of
FMLA leave. [Dkt. #29-11, 137:15-24]. At the end of this period, Wapen called the
plaintiff and asked her if she was going to return to work. At that time, the
34

plaintiff said that she could not return and could not provide a date by when she
would be ready to return. Even though her reason for not returning to work is
understandable and admirable, the FMLA unfortunately only provides for twelve
weeks of leave, and an employee has no absolute right to reinstatement after the
leave has expired. See Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 534 (S.D.N.Y.
2009) (“Once the twelve weeks of guaranteed leave are exhausted, if the
employee does not return to work-for whatever reason, the employer can replace
the employee, as long as the employer is not doing so to punish the employee for
exercising her FMLA right.”). Here, the plaintiff stated that she was not prepared
to return to work at the end of her leave, absent some other interference or claim
for retaliation, the defendants did not violate the FMLA by then terminating her.
The plaintiff argues that the interference came when the defendants forced her
to take leave involuntarily. The law is clear in this Circuit that “forced leave, by
itself, does not violate any right provided by the FMLA” because “[t]he FMLA
says nothing about an employer’s ability to ‘force’ an employee to take such
leave.” See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir. 2006). In
Sista, the defendant was suffering from a serious medical condition that impaired
his ability to perform essential functions of his job, and the Court found that
involuntarily forcing an employee to take FMLA leave when a serious medical
condition impairs an employee’s ability to perform employment functions does
not interfere with the FMLA. Id. This Court has already held that the plaintiff’s
pregnancy made it impossible for her to perform an essential function of her

35

position: direct instruction. Accordingly, the involuntariness of the leave is not
actionable.2
In Harvender v. Norton Co., a pregnant staff technician whose position
exposed her to chemicals on a daily basis presented a note from her doctor
stating that she “should not be working [with] or exposed to chemicals.”
Harvender v. Norton Co., 2007 WL 793085 at *1. The employer subsequently
placed the employee on FMLA leave because it found that the employee was
unable to perform an essential function of her employment, and it was unable to

2

The Second Circuit did leave open the issue as to whether a claim would be
ripe under the FMLA if an employee claimed FMLA interference when the
involuntary leave led its premature expiration. Sista, 445 F.3d at 175 (“If Sista
were able to demonstrate that such a forced leave interfered with, restrained, or
denied the exercise or attempted exercise of a right provided under the FMLA, a
cause of action might lie.”). The Sixth Circuit has “recognize[d] that an employer
who forces an employee to take leave may create a claim under the FMLA” and
that claim ripens only when the employee wishes to take more FMLA leave, but
the leave has expired. Wysong v. Dow Chem. Co., 50 F.3d 441, 449 (6th Cir. 2007).
Conversely, the Eighth Circuit has held that the only claim for interference under
the FMLA occurs when an employer prevents an employee from taking twelve
weeks of leave; so, as long as the employee is provided twelve weeks of leave,
there is no claim for interference even if the employee was required to take those
twelve weeks at a time not of his choosing. See Walker v. Trinity Marine
Products, Inc., 721 F.3d 542, 545 (8th Cir. 2013); see also Colpoys v. Cnty. Of Erie,
12-cv-908S, 2013 WL 5437635 (W.D.N.Y. Sept. 27, 2013).
This Court does not need to address this circuit split because even where a
claim for interference based on involuntariness is permitted, a claim is actionable
only if “the employee, when placed on involuntary leave, did not have a serious
health condition that precluded her from working.” Kleinser v. Bay Park Cmty.
Hosp., 793 F. Supp. 2d 1039, 1045 (N.D. Ohio 2011) (citing Harris v. Metro Gov’t of
Nashville & Davidson Cnty., 594 F.3d 476, 484 (6th Cir. 2010)). Here, this Court
has found that the plaintiff did have a serious health condition, pregnancy, and
this condition precluded her from performing an essential employment function.
Therefore, the employer was permitted under the FMLA to force her to take FMLA
designated leave.
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accommodate the conditions of her pregnancy. Id. It also told the employee that
“if she were unable to return to her job as of May 15, 1996, the end of her twelve
week unpaid leave, [the employer] would consider her as having terminated her
employment.” Id. at *1. The Court granted summary judgment in favor of the
defendant because the FMLA does not require that the exercise of its benefits be
voluntary. Id. at *7. The facts of this case are nearly identical to those here, and
this Court approves the analysis in Harvender. Turner was unable to work
closely with aggressive children; given that her teaching position for the
academic year risked continually exposing her to aggressive children, the
defendants forced her to take FMLA leave with the express condition that she
may be terminated if she was unable to return when the leave expired. This was
permissible under the statute, and since the plaintiff does not contest that she
was permitted to take the entire twelve week leave period, there are no material
facts in dispute that could permit a finding of interference under the FMLA.
ii. Retaliation
“The Second Circuit has stated that, ‘[i]n order to make out a prima facie case
[of FMLA retaliation], [the plaintiff] must establish 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 circumstances giving rise to an inference of retaliatory intent.’”
Wanamaker, 899 F. Supp. 2d at 206-07, quoting Potenza, 365 F.3d at 167-68.
Accordingly, “[t]he plaintiff must demonstrate that her taking FMLA leave
constituted ‘a negative factor in Defendant’s] decision to terminate him or her.”
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Wanamaker, at *11. Retaliation claims under the FMLA are analyzed pursuant to
the burden shifting framework established in McDonnel Douglas v. Green, 411
U.S. 792 (1973). Wanamaker, 899 F. Supp. 2d at 207. Under this test, “the
plaintiff must first establish a prima facie case of discrimination. If the plaintiff
establishes a prima facie case, a presumption that the employer unlawfully
discriminated against the plaintiff is raised and the burden of production then
shifts to the employer to articulate a clear, specific and non-discriminatory
reason for its actions.” Id. (internal quotation marks and citations omitted). “The
employer’s burden is merely one of production, not persuasion; it can involve no
credibility assessment. If the employer satisfies that burden, the plaintiff has the
burden to establish by a preponderance of the evidence that the employer’s
stated reason was merely a pretext for discrimination.” Id. “In addition, the
plaintiff must submit evidence that would permit a rational fact-finder to infer that
the discharge was actually motivated, in whole or in part, by discrimination.” Id.
The defendants argue that the plaintiff cannot meet the prima facie threshold
because she was unqualified when she was terminated as she refused to return
to work. [Dkt. #29-1, p. 35; Dkt. #29-11, 132:16-25]. In response, the plaintiff
argues that she was qualified because the defendants have admitted that the
plaintiff was qualified for her position at the time leave was taken. [Dkt. #30, p.
26-27].
“The relevant time for determining whether a plaintiff is ‘qualified’ is the date
of the allegedly adverse employment action.” McFarlane v. Chao, No.
04cv4871(GBD)(HBP), 2007 WL 1017604, at *22 (S.D.N.Y. March 30, 2007) (citing
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Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1999); Karn v. Williams
Advanced Materials, 02-cv-0852E(F), 2006 WL 361973, at *2 (W.D.N.Y. Feb. 15,
2006); Henzel v. Delaware Otsego Corp., 285 F. Supp.2d 271, 277, n.8 (N.D.N.Y.
2003); Meling v. St. Francis Coll., 95-cv-3739(JG), 1997 WL 106868, at *4 (E.D.N.Y.
April 1, 1997); Gallo, 22 F.3d at 1224 (2d Cir. 1994)). As stated earlier, once FMLA
leave is exhausted, “if the employee is unable to perform an essential function of
the position, . . . she is not entitled to restoration of her position.” Negal v.
County of Orange, No. 09-cv-9960(CS), 2013 WL 1285465, at *4 (S.D.N.Y. March 28,
2013) (internal quotation marks and citations omitted). “Thus, an employee is not
qualified for her position if she cannot return for work when the FMLA leave is
exhausted.” Id. Here, the plaintiff admitted that she would not return to work at
the expiration of her FMLA leave. Therefore, she has failed to present a prima
facie case for FMLA retaliation because she was unqualified for the position at
the time of her termination.
Even if the plaintiff had sufficiently alleged a prima facie case of FMLA
retaliation, she has failed to refute the defendants’ neutral and non-discriminatory
explanation for her termination. Under the burden shifting framework, the
plaintiff is required to refute the defendants’ claim that the reason for her adverse
treatment was that she was unable to return to work at the expiration of her FMLA
leave. The plaintiff has failed to respond to this claim, arguing summarily that
“there are at least genuine issues of material fact that preclude judgment for the
Defendants if not outright grounds for judgment in Plaintiff’s favor” on the FMLA
claim. [Dkt. #30, p. 27]. Even drawing all reasonable inferences in favor of the

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plaintiff, this Court finds that the plaintiff has not rebutted defendants’
explanation that the real reason for her termination was her refusal to return to
work. Indeed, it would be strange if the defendants forced her to take FMLA leave
because of her pregnancy and then retaliated against her for taking such leave.
The plaintiff has not raised any facts or presented any arguments showing that
the real reason for her termination was her exercise of her FMLA rights.
Accordingly, since the plaintiff has not met her burden in arguing either FMLA
interference or retaliation, defendants’ motion for summary judgment is
GRANTED.
Since the defendants have been granted summary judgment on the FMLA
claims, the Court does not examine the defendants’ argument that they are
entitled to qualified immunity under the FMLA.
IV.

Remaining State Law Claims

Having granted summary judgment as to the federal law claims against the
defendants, the Court declines to exercise its supplemental jurisdiction over the
plaintiff’s remaining state law claims. “Supplemental or pendent jurisdiction is a
matter of discretion, not of right. Thus, the court need not exercise supplemental
jurisdiction in every case.” Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 165-66
(D. Conn. 2005) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 715-726
(1966)). “The federal court should exercise supplemental jurisdiction and hear a
state claim when doing so would promote judicial economy, convenience and
fairness to the litigants. . . . In addition, the court may decline to exercise
supplemental jurisdiction where the court has dismissed all claims over which it
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has original jurisdiction.” Id. (citing 28 U.S.C. § 1367(c)(3)); Carnegie Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and
comity—will point toward declining to exercise jurisdiction over the remaining
state-law claims.”). Since the remaining claims are purely dependent on state
law, some of which lack precedential authority, the Court declines to exercise
supplemental jurisdiction, and they are DISMISSED without prejudice to pursuing
the remaining claims in state court.
V.

Conclusion

For the foregoing reasons, Defendants’ [Dkt. #29] Motion for Summary
Judgment is GRANTED as to the plaintiff’s claims under the ADA, Title VII, and
the FMLA. Since all of the federal claims have been dismissed in this case, the
Court does not need to address the defendants’ claim that they should receive
qualified immunity under the FMLA, and the Court declines to exercise
supplemental jurisdiction over the remaining state law claims.
IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: December 2, 2013

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