Preston v. Bristol Hospital
Filing
69
ORDER granting 47 Motion for Summary Judgment. Please see attached Ruling and Order. Signed by Judge Robert N. Chatigny on 3/30/15. (Reardon, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
DUSTI PRESTON,
:
:
Plaintiff,
:
:
v.
:
No. 3:12-cv-1252(RNC)
:
BRISTOL HOSPITAL,
:
:
Defendant.
:
RULING AND ORDER
Plaintiff Dusti Preston brings this action against her
former employer, Bristol Hospital, under Title VII, the Americans
with Disabilities Act, and the Connecticut Fair Employment
Practices Act, alleging that she was subjected to various adverse
actions, including termination, because of discrimination on the
basis of gender, disability and marital status, and retaliation
for complaints of discrimination.
summary judgment.
The defendant has moved for
For reasons that follow, the motion is
granted.
I. BACKGROUND
The parties’ Local Rule 56(a) statements show the following.
Plaintiff was employed by the defendant as a “second shift” CAT
Scan Technician (“CT Tech”) in the Radiology Department from 2002
until her termination in October 2011.
Morghan, was born in 2002.
Plaintiff’s daughter,
At that time, plaintiff was married;
a few years into her employment at the Hospital, she got a
divorce and remained unmarried for the remainder of her
employment.
As a “second shift” employee, plaintiff typically worked on
weekday evenings, plus an occasional weekend shift on a rotating
basis.
Two CT Techs were assigned to the second shift; at the
time of the relevant events, plaintiff generally worked with
Michelle Gore.
Plaintiff reported directly to the “Lead Tech”
for CAT Scan, Heidi McLam; McLam reported to Al Lamptey, the
Operations Manager for the Radiology Department, who started in
that position in May 2011.
Lamptey reported to Marie Marciano,
Director of Diagnostic Services.
Meditech, a software program used by Bristol Hospital to
store and transfer patient records, was purchased by the Hospital
in 2010, tested by employees on the “Meditech Team,” and rolled
out to all Hospital employees in June 2011.
Plaintiff
volunteered to represent her department on the Meditech Team but
was passed over in favor of Donna Santopietro, a married woman
with less seniority who worked in both CAT Scan and X-Ray.
Plaintiff claims that when she spoke with Marciano about why she
was not chosen, Marciano asked, “Well, isn’t it difficult for you
being the only one at home?”
Plaintiff responded, “So [Donna got
it] just because she has a husband at home?”
Marciano replied,
“Well, you have to admit it makes it a lot easier.”
2
The other
person responsible for choosing a team, Shana, allegedly told
plaintiff “I know you’re a single mom.
I thought that might make
it harder for you.”
Prior to the June 2011 launch of Meditech, each department
designated “Super Users” to help others learn to use the
software.
Plaintiff was asked by Lamptey to help train other CT
Techs on the software and considered herself to be an informal
“Super User.”
McLam sent an email in May 2011 formally inviting
plaintiff to be a Super User, but plaintiff denies having seen
the email.
See L.R. 56(a) Statements, ¶ 47.
She believes that
only those on the Meditech team were actually “Super Users,” and
because she was not on the Meditech team, she could not be a
Super User.
See L.R. 56(a) Statements, ¶¶ 48-49, 51.
Being part of the “Meditech Team” was not a promotion or a
separate position within the Hospital.
“Super Users” had more
access privileges and training on the Meditech system, but
received no additional pay or compensation.
Once everyone
learned to use the software, the Meditech Team and Super Users
were phased out.
In July 2011, plaintiff informed the Hospital that she had a
temporary stress fracture in her foot.
She had been “walking
around with a sore foot” since May and eventually got the injury
x-rayed.
A doctor told her to wear a “boot” cast for ten weeks,
3
until September 21, 2011, during which time she was given a
restriction of “no transporting patients” in wheelchairs or on
stretchers from the emergency room to the Radiology Department, a
distance of about 50 feet.
Other than the “no transporting”
limitation and having to wear a boot, she had no limitations, and
never missed work due to her injury.
On weekdays, other staff was available to transport
patients, so no special accommodation was needed.
When it was
plaintiff’s turn to work her rotating weekend shift, she emailed
Lamptey, who provided a transporter to assist her.
Plaintiff
claims that he did so “with a lot of hesitation” and “at times
failed to arrange a transport.”
She also claims that Lamptey was
irritated every time her need for a transporter came up,
complaining, “This is becoming a bad habit.”
He is alleged to
have stated, “Why did you have to go and get [your foot] X-Rayed
for anyway,” and told plaintiff she could be laid off because
hiring extra transporters was too expensive.
See L.R. 56(a)
Statements, ¶¶ 77-81.
In September 2011, a CT Tech left the Radiology Department,
causing the department to need additional weekend coverage.
On
September 15, McLam emailed the plaintiff and other CT Techs
informing them about the procedure for filling these weekend
shifts: if the shifts were not filled “within three days of the
4
scheduled shift” by staff volunteers, including part-time and per
diem employees, the shift would be assigned using the seniority
list of full-time CT Techs.
If the assigned CT Tech could not
work the required shift, she was responsible for finding her own
coverage.
The full-time CT Techs knew some time in advance that
their assigned shift was approaching.
The record is not entirely
clear with regard to how much notice was given to CT Techs.
At a
minimum, however, the written schedule for the weekend of October
15 and 16, 2011, was posted on September 30, about two weeks
before the shift.
In accordance with the procedure just described, plaintiff
was scheduled to cover the Saturday shift of October 15, 2011.
Michelle Gore was scheduled for Sunday, October 16.
Gore had a
weekend trip planned and did not want to work the shift so she
crossed her name off the posted schedule.
Plaintiff wrote on the
posted schedule, “I have Morghan,” and informed McLam that she
could not work the Saturday shift because her usual baby sitter
was unavailable.
At some point, plaintiff was told that Donna Santopietro had
volunteered to cover her shift.
Thursday, October 13, 2011.
However, Donna “backed out” on
That day, Lamptey told plaintiff
that she was responsible for finding someone to cover the shift.
In response, plaintiff and Gore visited Jeanine Reckdenwald,
5
Vice President of Human Resources, because neither of them had
coverage for the upcoming weekend shift.
They characterized the
shift as a “last minute mandatory overtime,” though they had
known about the schedule for a while.
Reckdenwald asked
plaintiff if she could find someone to watch her daughter or
arrange a playdate for “part of the shift,” and encouraged
plaintiff and Gore to work out the scheduling issue with Lamptey.
L.R. 56(a) Statements ¶¶ 109-11.
After leaving the meeting,
plaintiff made no additional efforts to find coverage.
When plaintiff arrived for work the next day, she was
directed to go to the Human Resources office.
Lamptey and
Reckdenwald told her she had to work the Saturday October 15
shift.
Plaintiff was offered the use of Reckdenwald’s office to
arrange childcare.
Plaintiff responded that she had no one to
watch her daughter, and declined the use of Reckdenwald’s office.
According to Lamptey, plaintiff told Reckdenwald that Reckdenwald
could fire her because she was not going to work the shift;
plaintiff claims that she has “no knowledge” of this statement.
See L.R. 56(a) Statements ¶ 132.
The parties dispute whether Lamptey found coverage for part
of the plaintiff’s shift and whether plaintiff was informed of
this.
Plaintiff claims she volunteered to work part of the shift
but was told by McLam that wasn’t “good enough.”
6
L.R. 56(a)
Statements ¶¶ 122, 128.
This conversation with McLam took place
prior to the meeting at which plaintiff was terminated;
apparently plaintiff did not reiterate her offer to work a
partial shift to Reckdenwald or Lamptey.
Plaintiff claims she was effectively terminated when she
declined to work the Saturday shift.
Earlier that day (Friday,
October 14), Gore had been fired for refusing to work the Sunday
shift.
Donna Santopiero, who had “backed out” of voluntarily
covering plaintiff’s shift, was not disciplined.
Following the termination, the Hospital denied plaintiff’s
application for unemployment benefits.
Its decision was appealed
and ultimately overturned based on a finding that plaintiff had
committed no willful misconduct.
After exhausting administrative remedies, plaintiff brought
this action.
She claims that the Hospital’s stated reason for
her termination — her refusal to work an assigned shift — was a
pretext for unlawful discrimination on the basis of disability,
gender (“sex-plus”) and marital status, and was also motivated by
retaliation for prior complaints of discrimination.
She also
claims that she was passed over for the Meditech Team because of
her status as a single mother.
Finally, she claims that Lamptey
failed to accommodate her foot injury and subjected her to
harassment in violation of the ADA.
7
II. DISCUSSION
Summary judgment may be granted if the undisputed facts
establish that the defendant is entitled to judgment as a matter
of law.
If a reasonable jury could return a verdict for the
plaintiff, a genuine dispute of material fact exists and summary
judgment must be denied.
Conclusory allegations and
unsubstantiated speculation, however, do not give rise to a
genuine dispute of fact.
Salahuddin v. Goord , 467 F. 3d 263,
273 (2d Cir. 2006).
Discrimination claims under Title VII, the ADA and CFEPA are
analyzed under the McDonnell-Douglas burden-shifting framework.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Raytheon
Co. v. Hernandez, 540 U.S. 44 (2003) (applied to the ADA); Zubrow
v. Solvay Pharms, Inc., 207 Fed. Appx. 37, 38 (2d Cir.2006)
(applied to CFEPA).
First, the plaintiff must establish a prima
facie case by showing that (1) she is a member of a protected
class; (2) she was qualified for the position in question (for
disability claims, a person is “qualified” if she can perform the
essential functions of the job, with or without reasonable
accommodation.
Giordano v. City of New York, 274 F.3d 740, 747
(2d Cir. 2001)); (3) she suffered an adverse employment action;
and (4) the adverse action occurred under circumstances giving
rise to an inference of discrimination.
8
Shlafer v. Wackenhut
Corp., 837 F. Supp. 2d 20, 25 (D. Conn. 2011).
“Discriminatory
motivation may be established by allegations of preferential
treatment given to similarly situated individuals, or remarks
conveying discriminatory animus.”
this initial step is de minimis.
Id.
Plaintiff’s burden at
Zann Kwan v. Andalex Grp. LLC,
737 F.3d 834, 844 (2d Cir. 2013).
If the plaintiff establishes a prima facie case, the burden
shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse action.
Vivenzio v. City
of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).
Then, the burden
shifts back to the plaintiff to show by a preponderance of the
evidence that the proffered reason is a pretext for
discrimination.
Howley v. Town of Stratford, 217 F.3d 141, 150
(2d Cir. 2000).
The plaintiff must adduce admissible evidence
sufficient to permit a rational trier of fact to infer “that the
challenged employment decision was more likely than not
motivated, in whole or in part, by unlawful discrimination.”
Id.
Retaliation claims are subject to a similar burden-shifting
analysis.
To establish a prima facie case, the plaintiff must
show that she engaged in protected activity, her employer knew
about it, and she suffered an adverse employment action as a
result.
Under Title VII, if the employer points to evidence of a
non-retaliatory reason for the decision, the plaintiff must show
9
that retaliation was the “but for” cause of the adverse action,
not just a motivating factor.
Univ. of Tex. Southwestern Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2533-34 (2013).
The Connecticut
Supreme Court has not yet addressed whether Nassar applies under
the CFEPA, but “in matters involving the interpretation of the
scope of [Connecticut's] antidiscrimination statutes,
[Connecticut] courts consistently have looked to federal
precedent for guidance.”
Ware v. State, 118 Conn. App. 65,
81–82, 983 A.2d 853 (Conn. App. 2009).
“[A] trial court should exercise caution when granting
summary judgment to an employer where, as here, its intent is a
genuine factual issue.”
Carlton v. Mystic Transp., Inc., 202
F.3d 129, 134 (2d Cir. 2000).
But “an employer [is] entitled to
judgment as a matter of law if the record conclusively reveal[s]
[a] nondiscriminatory reason for the employer’s decision, or if
the plaintiff create[s] only a weak issue of fact as to whether
the employer’s reason was untrue and there [i]s abundant and
uncontroverted independent evidence that no discrimination . . .
occurred.”
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 148 (2000).
Adverse Employment Action
The defendant submits that the only adverse action
sufficient to establish the third prong of the prima facie case
10
is the termination of the plaintiff’s employment.
The plaintiff
responds that, in addition to the termination, the denial of the
position on the Meditech Team qualifies as an adverse employment
action.
[Opp. at *25.]
She also argues that Al Lamptey’s
comments in reference to her foot injury constituted unlawful
harassment, and that the Hospital failed to accommodate her
injury by failing “at times” over the ten week period of “light
duty” to provide transportation help.
[Opp. at *18-19.]
An adverse employment action is a “materially adverse
change” in the terms and conditions of employment.
Sanders v.
New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.
2004).
“To be materially adverse, a change in working conditions
must be ‘more disruptive than a mere inconvenience or an
alteration of job responsibilities.’”
Id. (quoting Terry v.
Ashcroft, 336 F.3d 128, 138, 141 (2d Cir. 2003)).
Examples
include failure to hire, termination, failure to promote,
demotion, “a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or
other indices . . . unique to a particular situation.”
Terry,
336 F.3d at 138; Burlington Indus. v. Ellerth, 524 U.S. 742, 761
(1998).
A transfer from a prestigious position with opportunity
for advancement to a less desirable position with “little
opportunity for professional growth” can be an adverse action,
11
even if the positions offer the same pay and benefits.
de la
Cruz v. New York City Human Res. Admin. Dep't of Soc. Servs., 82
F.3d 16, 21 (2d Cir. 1996).
But see Flynn v. New York State Div.
of Parole, 620 F. Supp. 2d 463, 486 (S.D.N.Y. 2009) (granting
summary judgment when detriment to plaintiff’s career was
supported only by plaintiff’s opinion that her desired position
was “more prestigious” and “often a road to promotion”).
Here, a jury could not reasonably conclude that the denial
of a position on the Meditech Team constituted an adverse action.
It is undisputed that being part of the “Meditech Team” was not a
promotion or a separate position within the Hospital.
“Super
Users” had more access privileges and training on the Meditech
system but received no additional pay or compensation.
Plaintiff
argues in her opposition papers that being on the Meditech Team
was “a plus for her position status,” and would allow her to be a
“Super User,” which in turn would “allow her to be promoted in
the future; have more skills; allow her to advance.”
*26.
Opp. at
Plaintiff’s argument is not supported by citation to
evidence in the record.
Bare allegations that Meditech Team
members enjoyed prestige and career opportunities do not give
rise to a genuine dispute of fact precluding summary judgment.
Even assuming that being chosen as a Super User was akin to a
promotion, the record shows that McLam invited the plaintiff to
12
be a Super User in May 2011.
The plaintiff does not remember
seeing that email, but her inability to recall it does not raise
a genuine issue as to its authenticity.
To the extent
plaintiff’s discrimination claims rely on denial of the Meditech
or Super User positions, therefore, the motion for summary
judgment must be granted.
Failure to Accommodate
Plaintiff claims that she was denied a reasonable
accommodation for her injured foot, stating that a transporter
was “at times” not provided.
The defendant submits that the
plaintiff was not entitled to reasonable accommodation because
her foot injury was not a “disability” as defined by the ADA or
CFEPA.
I agree.
The ADA defines a disability as “a physical or mental
impairment that substantially limits one or more of the major
life activities of [an] individual.”
42 U.S.C. § 12102(2)(A).
Under the ADA Amendments Act (ADAAA), Pub. L. No. 110–325, 122
Stat. 3553 (Sept. 25, 2008), the terms “major life activity” and
“substantially limits” are to be “construed broadly in favor of
expansive coverage.”
29 C.F.R. §§ 1630.2(i)(2), (j)(1)(i).
Even
temporary impairments lasting fewer than six months can be
substantially limiting.
Id. § 1630.2(j)(1)(ix); see Summers v.
Altarum, 740 F.3d 325,332 (4th Cir. 2014) (temporary inability to
13
walk caused by injury, not long-term or permanent condition, is
nonetheless a disability under the ADAAA).
CFEPA forbids discrimination against individuals who have
“any chronic physical handicap, infirmity or impairment, whether
congential or resulting from bodily injury, organic processes or
changes or from illness.”
Conn. Gen.Stat. § 46a-51(15).
CFEPA’s
definition of “physical disability” is thus broader than that of
the ADA in that it does not require that the chronic impairment
limit a major life activity.
See Beason v. United Techs. Corp.,
337 F.3d 271, 277-78 (2d Cir. 2003).
The statute does not define
“chronic,” but courts have defined it as “marked by long duration
or frequent recurrence” or “always present or encountered.”
See
Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81, 88 (D. Conn.
2006).
Plaintiff points to the temporary stress fracture in her
foot as the relevant impairment, explaining that it substantially
limited the major life activity of “performing manual tasks,” see
id., specifically, pushing wheelchairs and stretchers.
Her need
for assistance in transporting patients was the only job-related
restriction caused by her injury.
L.R. 56(a) Statements ¶ 63.
Plaintiff has not identified any other task or life activity
limited by the injury; indeed, she “had been walking around with
a sore foot for a couple of months” before having the injury
14
examined by a doctor.
L.R. 56(a) Statements ¶ 60.
Pushing wheelchairs and stretchers is not a major life
activity, even under the relaxed standard of the ADA as amended.
Nor was plaintiff’s foot injury “chronic.”
Plaintiff had a “sore
foot” for about two months, which healed entirely after ten weeks
in a boot.
There is no evidence, medical or otherwise, that the
injury is still present or likely to recur.
Even assuming plaintiff was disabled as a result of the
stress fracture, the record establishes that reasonable
accommodations were provided.
Transporters were already
available on weekdays, and a transporter was provided to assist
her on the occasional weekend when she was on call.
56(a)(2) Statement ¶ 70.
L.R.
She claims that a transporter was not
provided “at times,” but does not identify any “times” when no
transporter was available, and admits that Lamptey provided a
transporter upon request, albeit grudgingly.
Statement ¶ 70.
L.R. 56(a)(2)
Accordingly, summary judgment will enter on the
claim for failure to accommodate.
Harassment
Plaintiff argues that Lamptey’s actions and comments with
regard to her foot injury constituted unlawful harassment.
Defendant moves for summary judgment on this claim arguing that
his behavior does not support a cognizable claim.
15
I agree with
this argument as well.
To prove a hostile work environment claim, a plaintiff must
show that the workplace is “permeated with discriminatory
intimidation, ridicule, and insult . . .
sufficiently severe or
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.”
Lewis v. Erie Cnty. Med.
Ctr. Corp., 907 F. Supp. 2d 336, 348 (W.D.N.Y. 2012); Rivera v.
Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir.
2012).
In considering whether a plaintiff has met this burden,
courts employ a totality of the circumstances test, evaluating
“the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
the victim’s [job] performance.”
Hayut v. State Univ. of N.Y.,
352 F.3d 733, 745 (2d Cir. 2003) (quotation marks omitted).
test has both objective and subjective components.
The
See Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“Conduct that is not
severe or pervasive enough to create an objectively hostile or
abusive work environment—an environment that a reasonable person
would find hostile or abusive—is beyond Title VII’s purview.”).
Here, plaintiff states that Lamptey “would hesitate and give
[her] grief about needing transport help to the point [she] was
afraid to fill ou[t] an incident report or use her earned time
16
off for her injury because she thought it would affect her job
negatively.”
L.R. 56(a)(2) Statement of Disputed Facts ¶ 7.
Lamptey’s allegedly harassing statements are as follows: When
plaintiff came to work wearing the boot cast, Lamptey stated,
“Why did you have to go and get it X-rayed for anyway.”
56(a)(2) Statement ¶ 77.
L.R.
When she asked for transport help, he
stated, “Don’t make a habit out of this,” and “This is becoming a
habit.”
In response to her requests for help, he suggested she
could be laid off because “we can’t afford it.”
Id. ¶¶ 78, 80.
Finally, when plaintiff slipped on an IV cap and fell (without
any injury resulting), he stated, “Can’t you stay off the floor?”
Id. ¶ 79.
Lamptey’s comments do not satisfy the objective component of
the hostile environment test.
Though the comments are unkind,
they are not sufficiently threatening, humiliating or
intimidating to support a claim.
Accordingly, the motion for
summary judgment is granted as to the harassment claim.
Termination
Plaintiff’s remaining claims concern her termination.
In
moving for summary judgment on this part of the case, the
defendant argues that plaintiff cannot carry her ultimate burden
of showing that its proffered reason for the termination — that
she refused to work a required weekend shift and failed to find
17
coverage — was a pretext for unlawful discrimination or
retaliation.
I agree.
Plaintiff’s claims of discrimination and retaliation are
rendered implausible by the undisputed fact that another fulltime CAT Scan Technician, Michele Gore, was terminated the same
day, by the same people, for failing to find coverage for the
same weekend shift.
In all relevant respects, Gore was similarly
situated to the plaintiff.
She and Gore were both full-time CT
Techs; both were scheduled to work a required overtime shift the
weekend of October 15; both complained to Human Resources about
the schedule at the same time; both failed to find coverage.
Plaintiff attempts to distinguish herself from Gore in a number
of ways: plaintiff could not find childcare, while Gore was
taking a weekend trip; plaintiff offered to work a partial shift,
while Gore simply refused to work; plaintiff had someone to cover
for her who had backed out just days before the shift, while Gore
never had coverage.
Even so, both women refused to work a
required shift for a legally unprotected personal reason.
Gore was not part of the alleged protected class of single
mothers, nor does plaintiff claim that Gore was disabled at any
point.
To the extent the retaliation claim relies on
plaintiff’s complaint to Reckdenwald on October 13, 2011, the
record indicates that Gore was also present and complained about
18
the schedule for a reason unrelated to childcare — her plans to
leave town for the weekend — undermining any reasonable inference
that the termination was in retaliation for complaints of
discrimination against the plaintiff based on her status as a
single mother.
In light of Gore’s termination, a reasonable jury could not
find that the plaintiff’s termination was motivated by her status
as a single mother, her foot injury, or retaliation.
Plaintiff
contends that Gore’s termination should be regarded as
“irrelevant,” and suggests that the Hospital was so determined to
terminate the plaintiff on the basis of her protected status that
Gore’s termination was merely “collateral damage.”
But without
some evidence that a person outside plaintiff’s protected group
was permitted to miss a required shift, a jury could not
reasonably find in her favor.
III.
CONCLUSION
Accordingly, the motion for summary judgment is hereby
granted.
The Clerk may enter judgment and close the file.
So ordered this 30th day of March 2015.
/s/
Robert N. Chatigny
United States District Judge
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