Mendillo v. Prudential Insurance Company of America
Filing
92
ORDER granting in part and denying in part 59 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 1/12/2016. (Shin, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LISA MENDILLO,
Plaintiff,
No. 12-cv-1383 (VAB)
v.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
Defendant.
RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff, Lisa Mendillo, brought this action against her former employer, The Prudential
Insurance Company of America (“Prudential” or “Defendant”), asserting claims for violation of
the Age Discrimination in Employment Act (the “ADEA”), the Americans with Disabilities Act
(the “ADA”), the Family Medical Leave Act (the “FMLA”), and the Connecticut Fair
Employment Practices Act (“CFEPA”). Defendant has moved for summary judgment on all of
Plaintiff’s claims. See Doc. No. 59. For the reasons stated below, the motion is GRANTED IN
PART and DENIED IN PART.
The Court GRANTS summary judgment as to the First, Fourth, Fifth, and Sixth Counts
of the Amended Complaint and as to the age discrimination claim of the Third Count. The Court
DENIES summary judgment as to the disability discrimination claim of the Third Count and as
to the Seventh Count. The Court DENIES summary judgment on the Second Count to the extent
it is based on a failure to accommodate under the ADA, but GRANTS summary judgment to the
extent it is based on retaliation under the ADA.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND1
Born in 1962, Ms. Mendillo began working at American Skandia Life Assurance
Corporation (“Skandia”) in or about April 1996. Plaintiff’s Local Rule 56(a)(2) Statement [Doc.
No. 69-24] ¶¶ 1-2. She was hired as part of a Technical Team that ultimately became part of
Customer Service. Mendillo Dep. [Doc. No. 69-1] 47:20-49:2. This “eService Team” “worked
with the technology and value-added tools that [Skandia] offered to [its] financial professionals”
and also functioned like an “external help desk” for those who required technology help and web
support. Id. 49:18-50:25, 53:20-23. There also were employees independent of the eService
Team responsible for handling the Call Center function, which entailed responding to “producttype calls and general inquiries.” Id. 60:22-61:13.
Prudential acquired Skandia in May 2003. 56(a)(2) Stmt. ¶ 3. At the time, Ms. Mendillo
worked on a team of Customer Service Representatives (or “CSRs”) dedicated to eService
functions, located in Shelton, Connecticut. Id. ¶¶ 3-4. In 2005, Prudential hired Gary Hogard to
oversee its two annuity call centers. Id. ¶ 5. The larger Call Center is located in Fort
Washington, Pennsylvania, which had approximately four times the number of personnel as
Shelton. Gabriel Dep. [Doc. No. 69-2] 19:19-20:7. At all times relevant to this action, Paula
Gabriel was the manager or director of the Shelton Call Center. Id. 17:6-20, 109:21-111:9. Ms.
Gabriel reported to Mr. Hogard. Id. 20:8-14, 21:7-25.
A.
Overview of Shelton Call Center
At the time Mr. Hogard was hired, Ms. Mendillo and other eService Team members
provided “support for the online activities of Prudential’s annuity customers,” while “[o]ther
1
On a motion for summary judgment, the Court must accept nonmovant’s evidence as true and view the record in
the light most favorable to her. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Emonds v.
Newman Chrysler, Inc., No. 3:03-cv-1114, 2005 WL 293493, at *2, 2005 U.S. Dist. LEXIS 1692, at *5 (D. Conn.
Feb. 4, 2005).
2
CSRs in the Shelton [Call Center] handled traditional customer service inquiries via telephone.”
56(a)2 Stmt. ¶ 4. “The nature of the whole eService function, what we did independently as a
team was to be able to support all the technology and the wholesalers and anything that came up.
And it was a constant . . . testing, changing, learning. And the Call Center was just a different
function than that.” Mendillo Dep. 61:4-10.
Mr. Hogard “revamped the customer service operations.” 56(a)2 Stmt. ¶ 6. “As part of
this revamping, in or around 2006, [Mr. Hogard] decided that the services exclusively performed
by the e-service team should be integrated into the services provided by the rest of the CSRs.”
Hogard Aff. [Doc. No. 63] ¶ 5. “[T]he idea was that we would no longer have people only doing
technology all the time in an individually-staffed group.” Mendillo Dep. 62:6-8. This “required
that all CSRs be cross-trained on both traditional telephone and e-service inquiries.” Hogard
Aff. ¶ 5. Ms. Mendillo was asked to attend product training for this purpose in 2007. Mendillo
Dep. 62:12-25, 63:6-9. She attended formal classroom training for approximately six weeks,
followed by two weeks of on-the-job training, and then approximately one month of call review
and quality scoring that did not count for performance management purposes. 56(a)(2) Stmt.
¶ 10.
Mr. Hogard also added a new program for evaluating the performance of Customer
Service Representatives using criteria established by Dalbar, Inc., which is a company that sets
performance standards for call centers in the financial service industry and ranks companies on
the quality of their customer service. 56(a)(2) Stmt. ¶ 6. The annuities business is highly
competitive, and Prudential has been continuously working to improve customer service in order
to help differentiate itself from other companies, with the new call quality program an important
component of that effort. 56(a)(2) Stmt. ¶ 7.
3
The Call Center personnel worked on teams of about twelve to fifteen employees.
Gabriel Dep. 29:16-24; Brand Dep. [Doc. No. 69-6] 26:13-16. An associate manager (or
“STM”) ran each team and Jennifer Brand served as Ms. Mendillo’s associate manager for most
of the period relevant to this litigation. See Doc. No. 69-3; Gabriel Dep. 27:7-9, 34:3-8. Each
team also had a service team specialist (or “STS”) or “Call Coach,” who was responsible, with
the associate manager, for monitoring call performance of Customer Service Representatives on
their team. Gabriel Dep. 41:15-42:20; Brand Dep. 37:1-39:12; Litvinchuk Aff. ¶ 4.
In appraising an employee’s performance, Prudential considered call monitoring
information as one of a number of factors. Gabriel Dep. 41:16-23. Prudential measured the
quality of a Customer Service Representative’s performance in part by reviewing and scoring a
sample of the recordings of telephone calls handled by that Customer Service Representative.
Typically, the Call Coach would evaluate two randomly-selected calls per week for each
Customer Service Representative on her team. Gabriel Dep. 42:1-20; Litvinchuk Aff. ¶ 4.
The evaluation criteria categories are: Professionalism (10 points); Client Experience (10
points); Service Excellence (20 points); Company Initiatives (15 points); Product Knowledge (25
points); and Workflow (20 points). Litvinchuk Aff. ¶ 6. Each of these categories were
comprised of sub-categories, and, if a Customer Service Representative missed a component of a
sub-category, “that associate would lose points for the entire category,” Brand Dep. 41:1-4,
“even if all other elements under [that category] were covered,” Litvinchuk Aff. ¶ 7. See also
Doc. No. 69-19, at 33. A Customer Service Representative may challenge the scoring she
receives within five days of receiving it, at which point a manager would review and either
uphold or overturn the score. Litvinchuk Aff. ¶ 8. Call scoring involved subjective
4
determinations, and discrepancies in scoring would occur as a result. Gabriel Dep. 48:3-25;
Cahill Dep. 79:16-22; Thomas Dep. 38:21-40:19; Brand Dep. 41:5-43:24.
Repeatedly failing to meet call quality expectations could result in a Customer Service
Representative being placed in Prudential’s Performance Improvement Process (or “PIP”), which
can have up to three phases: Performance Building Plan (or “PBP”); Performance Counseling (or
“PC”); and Decision Making (or “DM”). 56(a)(2) Stmt. ¶¶ 18-20. The first phase, performance
building, “is more of the informal process where the business works with the associate to get
wherever they’re lacking corrected.” Wells Dep. 77:20-23. A Customer Service Representative
could be put onto a Performance Building Plan for “inconsistent” call quality scores. Wells Dep.
79:22-80:22; Hogard Dep. 43:7-44:9; Cahill Dep. 63:12-24. The determination that a Customer
Service Representative’s call quality scores were sufficiently inconsistent to place her on
performance building was made by her manager or assistant manager, and was a somewhat
subjective determination that was made on a case by case basis, rather than according to any set
formula or pattern. Wells Dep. 80:8-22; Doc. No. 69-14, at 19; Brand Dep. 146:10-14; Cahill
Dep. 63:25-64:3.
Once on a Performance Building Plan, a Customer Service Representative can be
removed after meeting the call quality goal for three consecutive months. Gabriel Dep. 76:1317; Wells Dep. 96:6-8. While in the Performance Improvement Process, the number of calls
scored per month increased from eight to ten. Litvinchuk Aff. ¶ 4. However, if a Customer
Service Representative failed or demonstrated inconsistency in meeting the quality standards
after being placed on a Performance Building Plan, the Customer Service Representative could
be moved to the next phase of the Performance Improvement Process, Performance Counseling.
Gabriel Dep. 89:6-10. There are no formal procedures in place for being moved to or off
5
Performance Counseling; rather, such determinations are made on a case-by-case basis based on
informal guidelines. Doc. 69-14, at 21; Gabriel Dep. 113:6-115:6. If the Customer Service
Representative continues to fail to meet quality standards while on Performance Counseling,
Prudential may choose to place them on Decision Making, at which point the Customer Service
Representative has twenty-one days to choose to either “commit to the role and meeting their
requirements,” Brand Dep. 194:9-14, or to resign from the company voluntarily with a reduced
severance package, Wells Dep. 175:2-6. If the Customer Service Representative chose to stay
with the company, she would have a number of additional days, which varied on a case-by-case
basis, to demonstrate success—the typical length of the Decision Making period was thirty days.
Wells Dep. 62:5-63:22.
These specific Performance Improvement Process practices were not embodied in written
rules or policies, but instead were merely considered discretionary guidelines that reflected
Prudential’s typical practices. Wells Dep. 95:21-96:4; Brand Dep. 134:22-135:3; Scott Dep.
45:8-46:9, 51:8-14. Rather than applying hard and fast rules, Brand Dep. 135:1-3, Prudential
would “review each individual situation to see what type of action was warranted,” Scott Dep.
46:4-6.
B.
Plaintiff’s Employment History at Defendant
During the time relevant to this litigation, Ms. Mendillo served as a Senior Customer
Service Representative, a distinct job title from the entry-level Customer Service Representative
position. A Senior Customer Service Representative demonstrated more expertise, skill,
technical proficiency, and consistency than other Customer Service Representatives, and had
gone “above and beyond in their role.” Thomas Dep. [Doc. No. 69-5] 19:4-12; see also Cahill
Dep. [Doc. No. 69-4] 32:1-7; Scott Dep. [Doc. No. 69-7] 16:8-17:6, 17:24-18:7; Brand Dep.
6
28:3-9; Doc. No. 75, at 53 (“Prudential admits that a CSR was an entry level position.”). Ms.
Brand could not recall any other members of her team who were Senior Customer Service
Representatives. Brand Dep. 35:3-6, 50:3-9. Ms. Mendillo also was one of the oldest employees
at the Call Center. Mendillo Dep. 75:18-76:2. Nearly all the other members of her team were in
their twenties, and the majority of all employees at the Call Center were in their twenties or early
thirties. See, e.g., Gabriel Dep. 32:5-12; Brand Dep. 34:10-14.
Prudential recognized Ms. Mendillo as an excellent and valuable employee during much
of her time there, and rated her at the highest level of “exceptional contributor” in 2009, a rare
accomplishment and the top accolade a Customer Service Representative could receive. Brand
Dep. 44:17-45:3; Gabriel Dep. 57:7-9. “In many ways,” Ms. Mendillo was more skilled than the
other Customer Service Representatives. Brand Dep. 28:7-9. She possessed “technical ability . .
. that other associates did not possess.” Brand Dep. 28:12-14. She was the individual who led
the eService training sessions for other Customer Service Representatives. Brand Dep. 97:2298:5; Thomas Dep. 24:25-25:3. She “served as a mentor for [the Call Center’s] new hire class
for the eService role,” Thomas Dep. 19:24-25, and because she “had the most experience in
eService . . . people would come to her with questions,” Brand Dep. 97:19-21.
She was considered the technical lead for customer service, meaning “anything that came
as to being a project lead or subject matter expert, [she] was always given the task” by her
manager. Mendillo Dep. 70:5-71:22. Even after the revamping of the Call Center eliminated the
eService team as a separate group, Ms. Mendillo remained “the team lead for the EService
function.” Doc. No. 69-8, at 21. Ms. Mendillo was praised for “her enthusiasm for her role and
flexibility daily as she adjusts to the ever-changing needs of the Contact Center,” and was
viewed as “a role model for others in the organization.” Doc. No. 69-8, at 12. In June 2009,
7
Prudential awarded her an “ACHIEVE Award,” Doc. No. 62-8, at 8, which “recognizes
outstanding performance for employees of Prudential Annuity,” Pelletier Dep. 14:16-17.
During the time relevant to this litigation, there were about six or seven different
categories of calls that would come in to the Call Center; each type of call would go into a
separate queue, and different Customer Service Representatives would take calls from different
queues, depending on their areas of specialization. Gabriel Dep. 79:20-80:9. Ms. Mendillo’s
focus was on the eService, Independent Broker/Dealer, and Advanced Service Group queues.
Mendillo Dep. 69:3-25. In addition to handling calls, Ms. Mendillo had numerous other job
responsibilities; for example, she did “all the training, develop the manuals, [and] do the
technical work with the wholesalers.” Mendillo Dep. 74:14-15. These “offline” duties
constituted about 50 to 70 percent of Ms. Mendillo’s work. Mendillo Dep. 96:18-19; Gabriel
Dep. 70:4-10; Brand Dep. 28:24-31:4.
C.
Plaintiff’s Accident and Resulting Disability
On May 16, 2010, Ms. Mendillo had an automobile accident and sustained injuries
necessitating that she take leave under the Family and Medical Leave Act. Mendillo Dep. 21:2225, 111:9-113:24; Doc. 69-10, at 5-13. Specifically, she suffered disabling injuries to the lumbar
spine, right hip, right knee, right shoulder, and right elbow. Mendillo Dep. 18:13-17. “[T]hose
injuries made it very difficult to sit and work in the capacity at a desk and a computer all day.”
Mendillo Dep. 20:5-7. As a result of the accident, she is “functional with limitations.” Mendillo
Dep. 20:12.
Prior to the accident, Ms. Mendillo typically arrived at the Call Center before and left
after everyone else, “working ten plus hour days on a lot of project work and technical work.”
Mendillo Dep. 26:6-9, 235:14-16. She would work overtime. Cahill Dep. 60:6-10. After the
8
accident, however, she could no longer physically work a ten-hour day. Mendillo Dep. 26:1011. Initially, she missed about six days of work, and then attempted to return to work, but “was
in excruciating pain” and was re-evaluated the next day by her doctor, who limited her to half
days. Doc. No. 69-10, at 8; Mendillo Dep. 111:18-112:1. After about two weeks, in or about
late June, she was able to increase her workdays from four to five hours. Mendillo Dep. 118:24119:20. About a month after that, around late July, she was able to raise it to six hours a day.
Mendillo Dep. 119:25-120:8. After about another three weeks, around mid-August, she was
cleared to work seven-hour workdays. Mendillo Dep. 120:3-7. Around mid-September 2010,
Ms. Mendillo’s doctor ordered her to cut back to six-and-a-half hours because she “was having a
lot more back issues” and “having trouble sustaining the seven hours.” Mendillo Dep. 120:16121:1. Around November 2010, she was able to go back to seven hours and continued at that
level until her termination in August 2011. Mendillo Dep. 121:7-11. After her termination, Ms.
Mendillo reached the point where she would have been able to work full eight-hour days.
Mendillo Dep. 21:18-22:8.
Prudential knew about Ms. Mendillo’s accident, her resulting physical condition and
limitations, and her use of FMLA leave. See, e.g., Gabriel Dep. 93:22-25; Brand Dep. 62:1664:4, 66:22-67:5, 137:21-138:4; Wells Dep. 30:21-31:13; Cahill Dep. 59:6-14, 120:24-121:13;
Thomas Dep. 42:9-43:7; Doc. No. 69-12, at 1-10. Her supervisors also knew that Ms. Mendillo
required accommodations after suffering her accident. Brand Dep. 64:7-66:16; Gabriel Dep.
95:23-97:17. Ms. Mendillo brought the challenges and limitations imposed by her physical
condition directly to Prudential’s attention repeatedly during the remainder of her employment
there. See, e.g., Doc. No. 69-14, at 29; Gabriel Dep. 132:10-11. Prudential has an
accommodations unit to address such issues, and while Ms. Mendillo’s supervisors discussed
9
whether the unit might be able to assist them with what they described as Ms. Mendillo’s
scheduling-related problems caused by her FMLA leave, the unit never appears to have
suggested any accommodations for Ms. Mendillo nor to have contacted her to discuss her
disability. See Doc. No. 69-13, at 32; Wells Dep. 91:16-92:22; Gabriel Dep. 96:20-97:12; Brand
Dep. 64:7-68:15, 136:15-138:4; Scott Dep. 46:14-49:25.
D.
Plaintiff’s Performance Evaluations and Discharge
Ms. Mendillo’s 2007 annual performance appraisal shows that Ms. Mendillo met or
exceeded expectations in every category of her competency evaluation. Doc. No. 69-8, at 30-33;
Brand Dep. 70:15-23. Her overall performance rating was 4 out of 5, or “Exceeds
Expectations.” Doc. No. 69-8, at 35. Her appraisal noted that she “is an exceptional employee
who is highly respected by her peers as a leader in the Call Center.” Doc. No. 69-8, at 34. That
year, the goals for both “overall call quality” and “service excellence” were 92%; Ms. Mendillo
scored 93% on call quality and 91% on service excellence. As noted supra, the job
responsibilities at the Call Center shifted drastically that year, with all Customer Service
Representatives expected to handle both traditional telephone and e-service inquiries.
Ms. Mendillo’s performance appraisal noted that she “was recognized by her Call Center
trainer . . . for her perserverance [sic] throughout training and a positive attitude during this
period of transition,” who stated that she was “truly a role model to me and to others here in the
Annunities Call Center” and “a treasure who captures the essence of Customer Service and the
true Client Experience.” Doc. No. 69-8, at 34. Her call quality performance results for the year
were “solid,” and she was “recognized throughout 2007 by both internal employees as well as
external callers for her outstanding service.” Id. Her job performance earned her multiple
awards in 2007. Id.
10
In 2008, Ms. Mendillo once again received an Overall Performance Rating of 4, now
retitled as “High Contributor.” Doc. No. 69-8, at 24; Brand Dep. 74:6-8. She once again met or
exceeded expectations in every category of her competency evaluation. Doc. No. 69-8, at 20-22.
The goal for overall call quality was again 92%, but in this year, Ms. Mendillo only scored 91%.
Because of her inconsistent call quality scores in the first half of 2008, Ms. Mendillo had been
placed on a Performance Building Plan, effective June 27, 2008, with a target date to achieve the
call quality goal of October 31, 2008. Doc. No. 65-15. Ms. Mendillo received call quality
scores of 94% in June, 85% in July, 93.5% in August, 93.5% in September, and 93.3% as of
October 17, 2008. Doc. No. 65-15.
Ms. Mendillo’s 2008 performance appraisal noted that she “should continue to focus on
consistency with the [call] quality program to ensure the new goals of 93% for 2009 are met,”
but that she “has delivered significant results in her job performance in 2008” and “continues to
make contributions with a focus on the organization as a whole.” Doc. No. 69-8, at 23. It also
noted that as “the team lead for the Eservice function,” Ms. Mendillo worked on many projects
with employees in other departments, and that she “partners with many throughout the
organization for the benefit of our callers.” Doc. No. 69-8, at 21. In addition, she provided
“continual training to our Eservice call takers.” Id.
In 2009, Prudential raised the overall call quality goal from 92% to 93%. Doc. No. 69-8,
at 7, 23 Ms. Mendillo received a score of 94%, and even received a perfect 100% score in
January of that year. Doc. No. 69-8, at 7. Once again, she met or exceeded expectations in
every category of her competency evaluation. Doc. No. 69-8, at 9-11. Ms. Mendillo’s overall
performance rating this year was “Exceptional Contributor,” the equivalent of previous years’
“5” rating.
11
Ms. Mendillo’s 2009 performance appraisal noted that she “continued her strong
relationships not only within the Contact Center, but also with our . . . partners” in numerous
other departments, and that she was “sought out by these groups and also peers across both
Contact Centers for her outstanding website expertise.” Doc. No. 69-8, at 10. It also noted that
she was “extremely diligent when it comes to escalated cases and will ensure timely resolution to
exceed our caller’s expectations.” Id. She also “worked additional hours to support our eService
offline activities as we realigned resources to assist our Client Acquisitions Team.” Id.
Her appraisal recognized that she demonstrated “enthusiasm for her role and flexibility
daily as she adjusts to the ever-changing needs of the Contact Center-often switching from the
role of call taker, to one of processor, to one of project analyst,” and that “[t]hrough each twist
and turn, [she] constantly displays a positive attitude and shares her energy constantly with her
team members.” Doc. No. 69-8, at 12. Her supervisor encouraged her “to continue her drive for
excellence by consistently maintaining her [call] quality and handle time metrics.” Id.
Like 2008, 2010 began with inconsistent call quality scores for Ms. Mendillo, and she
was placed on a Performance Building Plan, effective May 6, 2010. Doc. No. 65-16. Ten days
later, Ms. Mendillo’s car accident occurred and she could not return to work until nearly the end
of the month and gradually increased her workdays over the next six months from half-days to
seven-hour days. Because of Ms. Mendillo’s reduced hours, Prudential initially reduced the
number of her calls that were being scored to four. Cahill Dep. 94:9-24; Brand Dep. 113:4-18.
Ms. Mendillo achieved the call quality score goals in June and July. Gabriel Dep. 80:10-15.
However, she would not have made the goal in one of those months if she had not challenged the
scoring of one of her calls. Mendillo Dep. 136:4-16.
12
During this time, Ms. Mendillo challenged her call scoring regularly. Mendillo Dep.
136:17-19. She filed more challenges than most Customer Service Representatives. Thomas
Dep. 57:4-6, 58:5-14. In August 2010, the number of her calls being scored was doubled to
eight, possibly without any advance notice to Ms. Mendillo. Brand Dep. 117:11-119:1; Doc. No.
69-12, at18-19, 22; Doc. No. 69-13, at 2. Ms. Mendillo failed to meet the call quality goal in
August by one percentage point, scoring 92%. Doc. No. 62-10.
Ms. Mendillo’s August score fell below the goal because of a deduction she received on
one call for not stating the hours of operation when closing the call. Gabriel Dep. 80:19-81:25;
Cahill Dep. 127:16-128:12; Brand Dep. 153:12-24. If this deduction had not been made, Ms.
Mendillo’s August score would have met the call quality goal and she would have been removed
from the Performance Building Plan. Gabriel Dep. 86:12-17; Brand 119:11-121:2. While she
did not follow the formal challenge process with respect to this call score, Ms. Mendillo did ask
for her score to be corrected, and Prudential denied this request. Cahill Dep. 98:13-99:13; Scott
Dep. 57:10-22; Gabriel Dep. 82:1-9; Brand Dep. 120:25-121:7, 154:3-14.
In early September, Prudential asked Ms. Mendillo to train other employees on the
eService function. Gabriel Dep. 87:3-5; Brand Dep. 143:15-20; Mendillo Dep. 96:6-7. Shortly
thereafter, Prudential removed all of her offline eService work responsibilities and made her job
exclusively telephone work.2 Gabriel Dep. 82:18-22, 84:7-16; Brand Dep. 56:17-21; Mendillo
Dep. 91:14-18, 96:13-14 . Ms. Mendillo protested the removal of her offline work. Gabriel Dep.
6-13. At the same time her offline work was taken away, Ms. Mendillo’s call volume increased
drastically. In the four months before her injury in 2010, Ms. Mendillo was averaging about 390
calls per month. In the two months following her injury, Ms. Mendillo handled 129 and 184
2
These responsibilities were then redistributed to a few of Ms. Mendillo’s colleagues, all of whom were younger
than Ms. Mendillo. See, e.g., Brand Dep. 143:21-144:8.
13
calls. She worked her way back up to 265 calls in August, but when her offline work was taken
away in September, her call volume spiked to 665 for the month. Doc. No. 69-13, at 23. Her
monthly call volume remained above six hundred for the rest of 2010. Doc. No. 69-13, at 23.
Ms. Mendillo warned her manager that being put full time on telephone work would
cause exacerbation of her back pain. Mendillo Dep. 152:15-25 (“[W]hen she said we’re going to
put you on a hundred percent phone work; I said, it’s hard when you can’t get up and stretch.
My back is spasming. At least when I do the project work, I can stand up, I can stretch my back,
try to lean back and move.”). Ms. Mendillo’s physical condition did worsen after her offline
work was removed, and resulted in her physician ordering her to cut back her workday hours.
Mendillo Dep. 150:5-151:2. Initially, Ms. Mendillo’s call quality score took a precipitous drop,
only scoring 79% for September. Doc. No. 69-13, at 23; see also Mendillo Dep. 96:17-24 (“You
can see a dramatic difference in scores when they removed me from my project work. I was
doing 70 percent offline work and 30 percent call work. So you’re taking maybe seven to ten
calls a day. And then they flipped a switch and said, start taking calls all day in September, after
they had me finish training a class. And when they did that, my call scores dramatically
dropped.”). In addition to a greater volume of calls, Ms. Mendillo also began receiving different
types of calls than the ones she had been accustomed to handling. Doc. No. 69-14, at 16; Brand
Dep. 145:6-11.
Ms. Mendillo raised her call quality scores back up in the subsequent months, scoring
91.5% in October and then surpassing the call quality goal in November and December by
scoring 94.5% and 95% in those months, respectively. Doc. No. 69-13, at 23. Ms. Mendillo’s
regular Call Coach was on leave in November and December 2010, and her calls were scored by
another person during those months. Mendillo Dep. 90:21-25; 164:13-19. Purdential informed
14
Ms. Mendillo in mid-November that she would be placed on Performance Counseling. Doc. No.
69-13, at 32-34. She protested, however, that placing her on Performance Counseling was
contrary to the conditions she had been told she had to meet in order to avoid being placed on
Performance Counseling, and so Prudential gave Ms. Mendillo “the benefit of the doubt” and
“did not proceed with performance counseling” at that time. Gabriel Dep. 99:9-100:2; see also
Brand Dep. 141:4-16.
The goal for overall call quality in 2010 was 93%, but Ms. Mendillo only scored 91% for
the year. Doc. No. 69-15, at 8. Ms. Mendillo’s 2010 performance appraisal, however, noted that
she “[u]nderstands the ‘big pictures’ and works to support those strategies,” and that, throughout
the year, she “worked to support the company and there were many ownership stories to support
her dedication to the strategy of the business.” Doc. No. 69-15, at 12. For example, she led the
development of a program that “result[ed] in over $20,000 saved for the organization.” Doc. No.
69-15, at 16.
Her performance appraisal also noted that she “struggled to meet her core performance
metrics, specifically call quality,” and that “[h]er results were below expectations for her role.”
The appraisal recognized that she “strives to exceed [our callers’] expectations and as a result has
received numerous complimentary calls” and “was recognized publicly by one of our Top
Financial Professionals . . . for her outstanding service support.” Doc. No. 69-15, at 14. Her
supervisor noted that she “is focused on providing an outstanding client experience each time, all
the time,” and that “[t]his is evidenced in . . . complimentary calls received.” Doc. No. 69-15, at
20. Still, her appraisal concluded that her overall call performance in 2010 “was not consistent
and she did not meet all expectations.” Id.
15
As Ms. Mendillo remained on a Performance Building Plan in January 2011, she
requested to listen to some calls with perfect scores to determine how she could improve, but
upon listening to them, she discovered that on some of these calls the Customer Service
Representatives had made errors that should have resulted in deductions but did not. Doc. No.
69-14, at 31; Brand Dep. 158:6-159:15. Ms. Mendillo brought this issue up with Prudential, and
her conclusions were confirmed by the resulting audit. Brand Dep. 159:16-20; Scott Dep. 28:2529:4; Gabriel Dep. 48:23-25.
Prudential raised the overall call quality goal again in 2011, from 93% to 94%. Doc. No.
69-14, at 28. In early February 2011, Prudential met with Ms. Mendillo to discuss extending the
Performance Building Plan because it appeared that she had missed the 94% goal for the month
of January; however, Ms. Mendillo had in fact met the call quality goal for January 2011.
Gabriel Dep. 129:5-14. Because she had achieved the call quality goal in three consecutive
months, Prudential removed Ms. Mendillo from the Performance Building Plan. Doc. No. 6915, at 2. “However, it was made clear that should she miss another month in the future she could
go directly to Performance Counseling.” Doc. No. 69-15, at 2. Further, Prudential expected that
going forward, Ms. Mendillo “needs to be the leader for not just the team but for the Contact
Center” in terms of her call quality performance. Doc. No. 69-15, at 2; Gabriel Dep. 136:5137:1; Brand Dep. 172:11-16.
Shortly thereafter, Ms. Mendillo received her annual performance appraisal for 2010, in
which she received an overall performance rating of “Greater Contributions Are Needed,” which
is the second lowest rating on a five-point scale. Doc. No. 69-15, at 21. Ms. Mendillo refused to
sign the appraisal because, as she protested to her managers, she believed it was unfair. Doc. No.
69-15, at 21; Brand Dep. 179:17-21; Gabriel Dep. 148:25-150:13. Ms. Mendillo wrote a detailed
16
description of the elements of her 2010 appraisal that she felt were unfair. Doc. No. 69-15, at
25-26.
At her request, Ms. Mendillo was given a meeting with Mr. Hogard and Lisa Wells, the
Call Center human resources professional, to discuss her concerns with her appraisal. Gabriel
Dep. 153:4-8. Mr. Hogard indicated to her that her manager “would be beefing up” her
appraisal, and Ms. Wells directed Ms. Gabriel “to change some of the wording on the appraisal.”
Mendillo Dep. 90:11-12; Gabriel Dep. 153:13-25. However, even after some revisions were
made, Ms. Mendillo’s overall performance rating remained unchanged. Mendillo Dep. 90:5-16;
Brand Dep. 181:18-23. Ms. Mendillo continued to object to the revised appraisal, requesting
further revisions, but her managers do not appear to have addressed the issues she raised. Doc.
No. 69-15, at 30-31; Gabriel Dep. 155:1-156:18; Brand Dep. 186:18-187:9.
At the end of February 2011, Ms. Mendillo’s call quality score was 91.25%, short of
2011’s 94% goal. Even after she successfully challenged the scoring, which resulted in raising
her monthly score to 93.13%, she remained still shy of the goal, and Prudential placed her on
Performance Counseling around March 15, 2011. Gabriel Dep. 158:12-160:8; Doc. No. 69-15,
at 34-37; Brand Dep. 183:15-184:11; Mendillo Dep. 199:5-20; Doc. No. 69-15, at 40; Doc. No.
62-13. Ms. Mendillo immediately protested in writing being placed on Performance Counseling
and requested a meeting with human resources. Doc. No. 69-15, at 43-44. She pointed out that
it was the first time in her fifteen-year career at the company that she had ever been presented
with any type of Performance Counseling document, and that she had consistently met or
exceeded the call quality goal over the prior four months, even though there had been numerous
scoring errors made with her calls. Doc. No. 69-15, at 43. Around this time, Ms. Mendillo also
17
asked Prudential if she could transfer to another role, but Ms. Gabriel did not allow her to apply
for other positions. Mendillo Dep. 198:11-13.
In response to Ms. Mendillo’s request for a meeting and her objections to being placed on
Performance Counseling, Ms. Wells met with her on March 31, 2011, but Prudential did not
accept her arguments. Gabriel Dep. 177:13-180:15. Consequently, Ms. Mendillo continued to
refuse to sign the Performance Counseling memorandum. Cahill Dep. 119:2-8. Furthermore, in
early April, Ms. Mendillo reached out to her managers to present ideas on ensuring that the call
quality guidelines were clearer and more fairly applied. Prudential developed a “plan” to deal
with her issues because Ms. Mendillo’s managers wanted to make sure that there would be no
further complaints from her, particularly regarding allegedly differential treatment she was
receiving. Gabriel Dep. 181:4-22, 182:23-183:12; Doc. No. 69-16, at 2-4. Mr. Hogard met with
Ms. Gabriel and Sarah Litvinchuk, Prudential’s Division Manager for Call Quality and Dalbar
Relationship, to discuss this plan, but Ms. Gabriel does not remember, nor is there record
evidence reflecting, what specifically was discussed. Gabriel Dep. 181:23-183:15.
At this time, Ms. Mendillo’s scoring challenges were not being independently reviewed,
but were being closely monitored by Ms. Gabriel, who was consulted on the review
determinations. See Wells Dep. 55:12-56:12; Thomas Dep. 66:20-67:3, 67:24-68:9 Doc. No. 6916, at 6; Doc. No. 69-19, at 13-16. Ms. Mendillo’s immediate supervisor, Ms. Brand, was also
required to check with Ms. Gabriel regarding how to respond whenever she received a
communication from Ms. Mendillo expressing concern with the way her performance was being
evaluated, and was required to document meetings she had with Ms. Mendillo. Doc. No. 69-14,
at 26; Gabriel Dep. 185:1-186:16.
18
Prudential removed Ms. Mendillo from Performance Counseling on May 26, 2011; she
had scored 96% on call quality during her Performance Counseling period. Doc. No. 69-16, at
25. However, the company also told her that if she missed the call quality score in any given
month going forward, she would move to Decision Making. Doc. No. 69-16, at 22-23. At this
time, Mr. Hogard questioned Ms. Gabriel regarding why Ms. Mendillo had not already been
moved to Decision Making, considering that Ms. Mendillo had scored 92% for the month of
May, thereby missing the 94% goal, and was informed that it was because Ms. Mendillo’s score
during the Performance Counseling period superseded the monthly score, and to move her to
Decision Making at that point “essentially would be double dipping.” Doc. No. 69-16, at 25;
Gabriel Dep. 189:1-190:20.
In June 2011, Ms. Brand left the Call Center and Melissa Thomas3 took over her position
as Ms. Mendillo’s manager. Thomas Dep. 25:16-24. Ms. Thomas had a meeting with Ms.
Mendillo on June 15, 2011 and Ms. Mendillo again expressed concern with getting clarification
on specific call standards and requirements and with inconsistencies with scoring. Doc. No. 6916, at 31; Thomas Dep.70:2-71:16. In late June or early July, Ms. Thomas advised Ms. Mendillo
that she would have to achieve the call quality goal for July, or Prudential may consider moving
forward with Decision Making. Thomas Dep. 81:15-18; Mendillo Dep. 211:3-4. The two had
another meeting on July 6, 2011 and Ms. Mendillo again disputed the scoring of several of her
June calls, and again expressed concern about inconsistent scoring, stating that it seemed calls
may be scored according to personal feelings towards a Customer Service Representative. Doc.
No. 69-16, at 33-34; Thomas Dep. 87:8-88:16.
For the month of June, Ms. Mendillo scored 91.25%, short of the call quality goal of
94%. She had eight calls scored during the month: she received 100% scores on the first four,
3
After this time, then-Melissa Hanson married and legally changed her name to Melissa Thomas.
19
then scores of 85%, 65%, and 80% on the next three, and finally 100% on her last scored call for
the month. Doc. No. 69-17, at 3. Ms. Mendillo challenged the scoring of the three sub-100%
calls, but while her challenges to the scoring of those three calls were still pending, Ms. Gabriel
presented Ms. Mendillo with Decision Making around July 14, 2011. Doc. No. 69-17, at 3; Doc.
No. 69-16, at 41-43; Mendillo Dep. 211:4-10; Thomas Dep. 94:5-20; Wells Dep. 160:21-22. In
addition, Prudential’s written call quality monitoring policies specified that two calls should be
reviewed per week and that no two calls should be pulled from the same day. Doc. No. 69-12, at
30, 53. In June 2011, Ms. Mendillo had calls scored on three consecutive days during the course
of one week, and also arguably had two calls pulled on the same day. Doc. No. 69-17, at 3, 2123; Mendillo Dep. 213:9-19; Gabriel Dep. 193:19-25, 196:9-18; Wells Dep. 159:5-25. Ms.
Gabriel knew of the challenged call scores, as well as of Ms. Mendillo’s objection to how her
calls were selected for scoring during the month of June. Gabriel Dep. 192:7-12, 198:14-25;
Doc. No. 69-17, at 21-23. Ms. Gabriel denied Ms. Mendillo’s three June score challenges.
Gabriel Dep. 192:20-25.
Ms. Mendillo also met with Stephen Pelletier, then the president of Prudential’s
annunities division, on or about July 20, 2011. She met with him for about 15 to 30 minutes.
She complained about how she was being treated, and he advised her that she should speak with
Ms. Wells and Mr. Hogard so that they were aware of her interest in staying with Prudential and
possibly looking into other opportunities there. Mendillo Dep. 263:9-265:23; Pelletier Dep.
27:17-19. Ms. Mendillo once again discussed the possibility of transferring to a different role at
Prudential, this time with Ms. Wells, but because she was on Decision Making just as when she
was on Performance Counseling, she was not allowed to post for other positions. Wells Dep.
147:9-25. However, this time, Ms. Gabriel did give Ms. Mendillo permission to apply for other
20
positions, but she was only able to apply for a “couple” of positions during the limited time
provided. Mendillo Dep. 229:8-230:7.
Ms. Mendillo also met with Timothy Cronin, a senior vice president working under Mr.
Pelletier, on July 25. Doc. No. 69-19, at 2; Mendillo Dep. 266:1-3. Mr. Cronin had discussed
Ms. Mendillo’s situation with Mr. Pelletier, and they were both surprised at the difficulties she
was having with her management because they knew her to be an excellent employee. Cronin
Dep. 18:6-13, 20:20-21:2, 25:11-13. Ms. Mendillo met with Mr. Cronin several times to discuss
her predicament. Doc. No. 69-19, at 2-4; Cronin Dep. 30:3-16, 31:10-13. Mr. Cronin called Mr.
Hogard to inquire about the situation, and Mr. Hogard, in a brief conversation, made clear that he
has a structure, guidelines, policies, procedures, expectations, and goals for his department.
Cronin Dep. 19:22-25.
As discussed supra, when a Customer Service Representative is placed on Decision
Making, she has twenty-one days to either commit to the role and meet the requirements or
resign from the company voluntarily with a reduced severance package. Gabriel Dep. 200:25201:5; Brand Dep. 194:9-14; Wells Dep. 62:5-63:22, 175:2-6. If a Customer Service
Representative on Decision Making chooses to stay with the company, typically, she would have
nine additional days to demonstrate success. After the twenty-first day of her thirty-day
Decision Making, Ms. Mendillo was meeting the call quality goal, and she elected to recommit
rather than accept a severance package. Gabriel Dep. 200:19-201:8; Doc. No. 69-16, at 43.
However, in the last nine days of Decision Making, Ms. Mendillo’s score dropped below the
goal for the Decision Making period, and Ms. Gabriel, Ms. Wells, and Mr. Hogard fired her.
Gabriel Dep. 65:2-23; Wells Dep. 173:17-19. This score drop was based on a review of three
calls during the final nine-day period of Decision Making, two of which Ms. Mendillo had
21
lodged challenges to before she was discharged.4 Doc. No. 69-16, at 13-16; Gabriel Dep.
203:15-206:3; Wells Dep. 63:24-64:20.
For example, Ms. Mendillo challenged a deduction she received on one of the two calls
because the then-current Prudential guidance document she was following in conducting her
calls did not indicate that the element she was penalized for not including was applicable to that
call. See Doc. No. 69-16, at 14. Ms. Litvinchuk was responsible for reviewing call score
challenges. Litvinchuk Aff. ¶ 9; Wells Dep. 55:12-56:12; Thomas Dep. 66:20-67:3, 67:24-68:9.
After reviewing this challenge, Ms. Litvinchuk wrote an e-mail to Ms. Gabriel, stating:
“UGGGG. It is not on this document. Thoughts? Still presents risk to the company.
Exceptions have still been made based on it.” Doc. No. 69-16, at 13. Ms. Gabriel responded,
“Don’t do anything...Let it go. Just keep me updated on anything she sends you.” Doc. No. 6916, at 16.
Prudential terminated Ms. Mendillo’s employment on August 18, 2011. Am. Compl.
[Doc. No. 23] ¶ 24. She immediately began applying for a number of other positions at
Prudential, but was never considered. Doc. No. 69-10, at 15-23; Am. Compl. ¶ 28. On or about
February 14, 2012, Ms. Mendillo timely filed administrative charges of discrimination and
retaliation with the Connecticut Commission on Human Rights and Opportunities (“CHRO”) and
the Equal Employment Opportunity Commission (“EEOC”). Am. Compl. ¶ 5. She received a
release of jurisdiction from both the CHRO and EEOC and then filed this lawsuit.
4
In addition, as part of the Decision Making, Ms. Mendillo received an Interim Performance Review, which
reflected that, as of August 17, 2011, she was exceeding the overall call quality goal for the year with a 94.53%
score, and included a great deal of praise for her job performance in general. Doc. No. 69-17, at 12-14; Gabriel Dep.
212:23-214:18.
22
II.
STANDARD OF REVIEW
A motion for summary judgment may not be granted unless the court determines that
there is no genuine issue of material fact to be tried and the undisputed facts warrant judgment
for the moving party as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 172 (2d Cir. 2005). When ruling on a
motion for summary judgment, the court may not try issues of fact, but must leave those issues to
the jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, the trial court’s
task is “carefully limited to discerning whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined . . . to issue-finding; it does not extend
to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d
Cir. 1994).
“[T]he moving party bears the burden of showing that he or she is entitled to summary
judgment.” United Transp. Union v. Nat’l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.
2009). Once the moving party has satisfied that burden, in order to defeat the motion, “the party
opposing summary judgment . . . must set forth ‘specific facts’ demonstrating that there is ‘a
genuine issue for trial.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R.
Civ. P. 56(e)). Summary judgment is inappropriate only if the issue to be resolved is both
genuine and related to a material fact. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment. An issue is “genuine . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248 (internal quotation marks
omitted). A material fact is one that would “affect the outcome of the suit under the governing
law.” Id. Only those facts that must be decided in order to resolve a claim or defense will
23
prevent summary judgment from being granted. Immaterial or minor facts will not prevent
summary judgment. See Howard v. Gleason Corp., 901 F. 2d 1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary judgment, the court must “assess
the record in the light most favorable to the non-movant and . . . draw all reasonable inferences
in its favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). Furthermore, the
Second Circuit has “repeatedly expressed the need for caution about granting summary judgment
to an employer in a discrimination case where . . . the merits turn on a dispute as to the
employer’s intent.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). However, the
inferences drawn in favor of the nonmovant must be supported by evidence. “[M]ere speculation
and conjecture” is insufficient to defeat a motion for summary judgment, Stern v. Trustees of
Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997), as is the “mere existence of a scintilla of
evidence in support of the [nonmovant’s] position,” Liberty Lobby, 477 U.S. at 252.
III.
DISCUSSION
Plaintiff’s Amended Complaint [Doc. No. 23] brings claims under seven counts. In the
First Count, Ms. Mendillo alleges that Prudential discriminated against her on the basis of her
age in violation of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §
623(a). The Second Count alleges that Prudential failed to accommodate her disability in
violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12111 et seq., that the
lack of accommodation led to her unlawful termination, and that she also was retaliated against
under the ADA. The Third Count alleges that, in discriminating against Ms. Mendillo on the
basis of her age and disability, Prudential also violated the Connecticut Fair Employment
Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60(a). The Fourth Count alleges retaliation in
violation of the ADEA, while the Fifth Count alleges retaliation in violation of the CFEPA. The
24
Sixth Count alleges interference with Ms. Mendillo’s rights in violation of the Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2615(a). Finally, the Seventh Count alleges retaliation under
the FMLA. For the following reasons, the Court GRANTS summary judgment as to the First,
Fourth, Fifth, and Sixth Counts of the Amended Complaint and as to the age discrimination
claim of the Third Count. The Court DENIES summary judgment as to the disability
discrimination claim of the Third Count and as to the Seventh Count. The Court DENIES
summary judgment on the Second Count to the extent it is based on a failure to accommodate
under the ADA, but GRANTS summary judgment to the extent it is based on retaliation under
the ADA.
A.
Statute of Limitations
Defendant argues that most of Ms. Mendillo’s claims of alleged discriminatory conduct
are time barred, and thus cannot form the basis for claims under the ADEA, the ADA, or the
CFEPA. The ADA and ADEA “require claimants to file a charge of discrimination or retaliation
with the [EEOC] within 300 days of the discriminatory or retaliatory act.” Valtchev v. City of
New York, 400 F. App’x 586, 588 (2d Cir. 2010) (citations omitted). A CHRO complaint under
CFEPA “must be filed within one hundred and eighty days after the alleged act of
discrimination.” Conn. Gen. Stat. § 46a-82(f). Ms. Mendillo filed her claims with the EEOC
and CHRO on February 12, 2012. Def. Br. [Doc. No. 60], at 18; Pl. Br. [Doc. No. 69], at30.
Therefore, she may only bring suit for discriminatory or retaliatory acts under the ADA or
ADEA occurring on or after April 18, 2011, and for violations of the CFEPA occurring on after
August 16, 2011.
All of the alleged acts from which damages are purported to arise in this action, however,
occurred within the statutes of limitations for filing claims with the EEOC and nearly all
25
occurred within the statute of limitations for filing claims with the CHRO. Moreover, Ms.
Mendillo is not barred “from using the prior acts as background evidence in support of a timely
claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Therefore, the
statutes of limitations do not bar any of Mendillo’s claims.
B.
First and Fourth Counts: ADEA Claims
The ADEA’s purpose is to “promote employment of older persons based on their ability
rather than age [and] to prohibit arbitrary age discrimination in employment[.]” 29 U.S.C.
§ 621(b). The ADEA’s prohibitions protect employees who are at least forty years of age. 29
U.S.C. § 631(a). Plaintiff brings claims against Defendant under the ADEA for age
discrimination and retaliation, and Defendant has moved for summary judgment on those causes
of action.
1.
First Count: Age Discrimination Under the ADEA
Under the ADEA, it is “unlawful for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age [or] to limit, segregate,
or classify his employees in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an employee, because of
such individual’s age[.]” 29 U.S.C. § 623(a).
In the Second Circuit, ADEA discrimination claims are analyzed using the burdenshifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as
modified by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). See Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). Under this framework,
the plaintiff bears the initial burden of establishing a prima facie case of
discrimination. If the plaintiff does so, the burden shifts to the defendant to
26
articulate ‘some legitimate, nondiscriminatory reason’ for its action. Once such a
reason is provided, the plaintiff can no longer rely on the prima facie case, but
may still prevail if she can show that the employer’s determination was in fact the
result of discrimination.
Id. At the final stage, the plaintiff can satisfy its burden either by establishing that “the
employer’s proffered reason was a pretext for discrimination” or “by presenting facts, which
taken in his favor, suffice to show that a triable issue exists as to whether his age was a ‘but for’
cause of his termination.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014)
(internal quotation marks and citations omitted). A district court must take “a case-by-case
approach” to this determination, “examining the entire record to determine whether the plaintiff
could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff.” Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000). For
example, “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the
falsity of the employer’s explanation. . . . Proof that the defendant’s explanation is unworthy of
credence is simply one form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 147 (2000). In terms of establishing age as the but for cause of the employer’s
action, age must be “an antecedent but for which the result in question would not have occurred,”
even if it “combines with other factors to produce the result, so long as the other factors alone
would not have done so—if, so to speak, it was the straw that broke the camel’s back.” Burrage
v. United States, 134 S. Ct. 881, 888 (2014).
a.
Prima Facie Case
“In order to establish a prima facie case of age discrimination, [plaintiff] must show
(1) that she was within the protected age group, (2) that she was qualified for the position,
(3) that she experienced adverse employment action, and (4) that such action occurred under
27
circumstances giving rise to an inference of discrimination.” Gorzynski, 596 F.3d at 107. The
plaintiff bears a “de minimis burden” at this stage. Timbie v. Eli Lilly & Co., 429 F. App’x 20,
22 (2d Cir. 2011). Ms. Mendillo has satisfied this burden.
Prudential does not contest the first or third elements of the prima facie case. Therefore,
the only issues are whether she was qualified for the position and whether the alleged adverse
employment actions occurred under circumstances giving rise to an inference of discrimination
based on Plaintiff’s age. In this case, Ms. Mendillo was one of the oldest employees at the Call
Center. Virtually all the other members of her team were younger, and Ms. Mendillo has
presented evidence that, while she was employed, many of her duties were re-distributed among
several of these significantly younger employees. See, e.g., Mendillo Dep. 91:14-18 (“They
changed my job and my career and my functions in September of 2010 . . . and dramatically
changed my career.”); Gabriel Dep. 82:14-84:12 (“[W]e removed her from the eService offline
activity[.]”); Brand Dep. 143:21-144:8 (“There would have been other associates given those
tasks. . . . AJ would have gotten some of it.”). The transfer of a plaintiff’s job responsibilities to
a substantially younger employee suffices to establish an inference of age discrimination at the
prima facie stage of analysis. See, e.g., Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d
Cir. 2000); Collins v. Connecticut Job Corps, 684 F. Supp. 2d 232, 249 (D. Conn. 2010).
Prudential also argues that Ms. Mendillo was not qualified for the position because she
was not performing her job satisfactorily at the time of termination. The Court disagrees.
Under the qualification prong of the prima facie case, the Court will only examine
whether or not [a plaintiff] had the basic skills for the position.
To show qualification, the plaintiff does not need to show perfect
performance or even average performance, but only needs to show that he
‘possesses the basic skills necessary for performance of the job.’
28
Vernon v. Port Auth. of New York & New Jersey, 154 F. Supp. 2d 844, 856 (S.D.N.Y. 2001)
(quoting Gregory v. Daly, 243 F.3d 687, 696 (2d Cir.2001)). The record contains ample
evidence demonstrating that she possessed the basic skills necessary for performance of her job.
After all, she had been performing these job responsibilities for Prudential for over fifteen years
at the time of her termination.
The Court finds that Ms. Mendillo has satisfied her minimal burden of establishing a
prima facie case of age discrimination under the ADEA.
b.
Legitimate, Nondiscriminatory Reason
Prudential likewise has satisfied its burden and provided a legitimate, nondiscriminatory
reason for terminating Ms. Mendillo: poor performance, specifically her failure to maintain the
required call quality scores. There is record evidence indicating that: (1) Ms. Mendillo failed to
achieve the required call quality goals in certain months; (2) Prudential initiated the Performance
Improvement Process as a result; (3) that she moved progressively through the three phases of
the Performance Improvement Process—the Performance Building Plan, Performance
Counseling and Decision Making—for continuing inconsistent call quality scores; (4) once on
Decision Making, Prudential warned Ms. Mendillo that, if she failed to meet performance
requirements while on Decision Making, she would be discharged; and (5) she failed to meet
certain performance requirements while on Decision Making.
c.
Pretext
In this case, a reasonable juror could not infer from the record evidence that Prudential’s
proffered nondiscriminatory reason for Ms. Mendillo’s termination is pretextual and that her age
was the real reason. A plaintiff alleging employment discrimination “may prevail only if an
employer’s proffered reasons are shown to be a pretext for discrimination, either because the
29
pretext finding itself points to discrimination or because other evidence in the record points in
that direction—or both.” Fisher v. Vassar Coll., 114 F.3d 1332, 1339 (2d Cir. 1997); see also
Hollander v. Am. Cyanamid Co., 172 F.3d 192, 201 (2d Cir. 1999) (finding that “the pretext in
and of itself does not suggest age discrimination”). In this case, even if a jury were to determine
that Prudential’s articulated reason is false, it could not find based on the record that age was the
real reason.
Plaintiff argues that younger employees similarly situated to Plaintiff were treated more
favorably, a fact which, if established, could satisfy both the prima facie and pretext prongs. See
Julian v. Securitas Sec. Servs. USA, Inc., No. 3:08-cv-1715, 2010 WL 1553778, at *9-10, 2010
U.S. Dist. LEXIS 38129, at *23-29 (D. Conn. Apr. 19, 2010) (evidence that six younger
coworkers engaged in proscribed conduct similar to plaintiff and were not penalized as severely
held sufficient for age discrimination claim to survive summary judgment). “An employee is
similarly situated to co-employees if they were (1) ‘subject to the same performance evaluation
and discipline standards’ and (2) ‘engaged in comparable conduct.’” Trachtenberg v. Dep’t of
Educ., 937 F.Supp.2d 460, 471 (S.D.N.Y. 2013) (quoting Ruiz v. Cnty. of Rockland, 609 F.3d
486, 493-94 (2d Cir. 2010)); see also Aiello v. Stamford Hosp., No. 3:09-cv-1161, 2011 WL
3439459, at *15, 2011 U.S. Dist. LEXIS 87121, at *41 (D. Conn. Aug. 8, 2011) (“to satisfy the
all material respects standard for being similarly situated, a plaintiff must show that his coemployees were subject to the same performance evaluation and discipline standards”). Here, it
is undisputed that all Customer Service Representatives were subject to the same performance
evaluation and discipline standards; in fact, Prudential explicitly argues that “Plaintiff was held
to the same standards as all other CSRs.” Def. Br., at 25. Thus, a reasonable juror could find
30
that Ms. Mendillo was similarly situated to the other Customer Service Representativesin her
office.
The record evidence, however, does not demonstrate that younger employees were
treated more favorably than older ones. To the contrary, at least one younger Customer Service
Representative was treated just as Ms. Mendillo was for comparable conduct: he failed to meet
call quality goals consistently, Prudential initiated the Performance Improvement Process in
December 2010, and Prudential discharged him shortly after Ms. Mendillo for continuing to fall
short of the goals. See Doc. Nos. 64-2; 65 ¶ 19; 56(a)(2) Stmt. ¶ 54; Doc. No. 65-11. Thus, a
reasonable juror could not infer from the evidence in the record that younger employees were
treated more favorably, and without such a finding, there is nothing in the record upon which a
reasonable juror could conclude that the real reason for Ms. Mendillo’s discharge was age.
“Without a nexus between her age and termination, [a plaintiff’s] evidence cannot surmount the
requisite ‘but for’ hurdle.” Rubinow v. Boehringer Ingelheim Pharm., Inc., 496 F. App’x 117,
119 (2d Cir. 2012) (affirming grant of summary judgment on age discrimination claims). As a
result, summary judgment as to Ms. Mendillo’s ADEA claim for age discrimination is granted.
2.
Fourth Count: Retaliation under the ADEA
Retaliation claims under the ADEA are also analyzed using the McDonnell Douglas
burden-shifting formula. See Kessler v. Westchester Cnty. Dep’t of Social Servs., 461 F.3d 199,
205 (2d Cir. 2006). To establish a prima facie case of retaliation under the ADEA, “a plaintiff
must show (1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the protected
activity and the adverse employment action.” Bucalo v. Shelter Island Union Free Sch. Dist.,
691 F.3d 119, 129 (2d Cir. 2012) (internal quotation marks and citations omitted). “[P]roof of
31
causation can be shown either: (1) indirectly, by showing that the protected activity was followed
closely by discriminatory treatment, or through other circumstantial evidence such as disparate
treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence
of retaliatory animus directed against the plaintiff by the defendant.” Hicks v. Baines, 593 F.3d
159, 170 (2d Cir.2010) (internal quotation marks and citation omitted).
“If a plaintiff sustains the initial burden, a presumption of retaliation arises. In turn,
under the second step of the burden-shifting analysis, the onus falls on the employer to articulate
a legitimate, non-retaliatory reason for the adverse employment action.” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005). “[O]nce an employer offers such proof, the
presumption of retaliation dissipates and the employee must show that retaliation was a
substantial reason for the adverse employment action.” Id. .
Ms. Mendillo’s claim of retaliation in violation of the ADEA must fail because she has
not shown that she participated in any protected activity under that statute. While it is
undisputed that she did register many complaints with Prudential about her treatment, there is no
evidence in the record that any of her complaints alleged discrimination based upon her age.
Therefore, summary judgment is granted on the Fourth Count of the Amended Complaint.
C.
Second Count: Violation of ADA
Title I of the ADA makes it unlawful for an employer to “discriminate against a qualified
individual on the basis of disability in regard to” any employment decision. 42 U.S.C.
§ 12112(a). The ADA defines discrimination to include both adverse employment actions based
on the employee’s disability, see id., and “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability . . . unless
32
[the employer] can demonstrate that the accommodation would impose an undue hardship on the
operation of the business,” 42 U.S.C. § 12112(b)(5)(A).
1.
Failure to Provide Reasonable Accommodation
To establish a prima facie case on a reasonable accommodation claim, a plaintiff must
prove that “(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3) with reasonable accommodation,
plaintiff could perform the essential functions of the job at issue; and (4) the employer has
refused to make such accommodations.” Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 184
(2d Cir. 2006) (internal quotation marks and citations omitted). In analyzing failure to
accommodate claims, the plaintiff first must prove that “an accommodation exists that permits
her to perform the job’s essential functions.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131,
138 (2d Cir. 1995). “If the plaintiff meets that burden, the analysis shifts to the question whether
the proposed accommodation is reasonable; on this question the burden of persuasion lies with
the defendant.” Jackan v. New York State Dep’t. of Labor, 205 F.3d 562, 566 (2d Cir. 2000).
“Whether or not something constitutes a reasonable accommodation is necessarily fact-specific,”
and “determinations on this issue must be made on a case-by-case basis.” Wernick v. Fed.
Reserve Bank of New York, 91 F.3d 379, 385 (2d Cir. 1996).
The Second Circuit has held that held that “an employee’s request for an accommodation
triggers a duty on the part of the employer to investigate that request and determine its
feasibility.” Graves v. Finch Pruyn & Co., 457 F.3d 181, 185 (2d Cir. 2006) (internal quotation
marks and citation omitted).
Under the ADA, employers and employees share responsibility for determining
an appropriate accommodation, through a flexible, interactive process. The
employee possesses the initial responsibility to inform the employer that she
needs an accommodation, and to identify the limitation that needs
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accommodating. An employer has no duty to provide an accommodation for a
disability of which it has no knowledge. However, the ADA does not require
employees to suggest a specific type of accommodation in order to trigger the
employer’s obligation to investigate which reasonable accommodations, if any,
might be appropriate.
Once an individual with a disability requests
accommodations, the responsibility for fashioning a reasonable accommodation is
shared between the employer and the employee. At this point, the employer must
make a reasonable effort to determine an appropriate accommodation based on
the particular job involved and consultation with the employee.
Worthington v. City of New Haven, No. 3:94-cv-00609, 1999 WL 958627, at *13, 1999 U.S.
Dist. LEXIS 16104, at *38-40 (D. Conn. Oct. 5, 1999) (citations omitted). An employee “ ‘need
not mention the ADA or even the term “accommodation” ’ so long as the employer has
knowledge of the disability.” Id. (quoting Schmidt v. Safeway Inc., 864 F. Supp. 991, 997 (D.
Or. 1994)); see also Medlin v. Rome Strip Steel Co., 294 F. Supp. 2d 279, 292 (N.D.N.Y. 2003)
(noting that “so long as the employee makes the employer aware of his condition and that some
accommodation is requested, the employer has at least some responsibility to reasonably engage
in the interactive process and determine the appropriate accommodation”).
Here, Ms. Mendillo informed her employer of her physical constraints resulting from her
accident, emphasizing that she could not sit for prolonged periods, and requested that she be
allowed to continue doing offline projects in conjunction with her telephone work, so that she
could have breaks during the day from the uninterrupted sitting required by the telephone work.
Prudential admits that there were reasonable options available to accommodate her disability.
See Defendant’s Local Rule 56(a)(1) Statement [Doc. No. 61] ¶ 51 (noting that accommodations
available at Prudential to someone with Plaintiff’s disability included “walking breaks, a
different chair, or a standing desk”). Prudential argues that it did not have notice of Ms.
Mendillo’s need for accommodation because her doctor’s notes did not specify that she could not
sit for prolonged periods, and that it had no obligation to offer her any reasonable
34
accommodations because she did not specifically request any of the ones that it could have
offered.
The law in the Second Circuit, however, recognizes that “an employer has a duty
reasonably to accommodate an employee’s disability if the disability is obvious—which is to
say, if the employer knew or reasonably should have known that the employee was disabled,”
whether or not the employee has requested an accommodation or even acknowledges that she has
a disability. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). As a result, this
claim should proceed to trial where, as here, Ms. Mendillo disclosed her condition and physical
limitations directly to her supervisor and Prudential failed to determine whether a reasonable
accommodation could have been offered for her inability to sit for prolonged periods. Summary
judgment therefore is denied on Ms. Mendillo’s ADA claim based on a failure to accommodate
her disability.
2.
Unlawful Discharge
The ADA prohibits “discriminat[ion] against a qualified individual on the basis of
disability in regard to . . . discharge of employees.” 42 U.S.C. § 12112(a). To analyze a claim
for unlawful discharge under the ADA, the Court must follow the familiar McDonnell Douglas
burden-shifting framework: the “plaintiff must establish a prima facie case; the employer must
offer through the introduction of admissible evidence a legitimate non-discriminatory reason for
the discharge; and the plaintiff must then produce evidence and carry the burden of persuasion
that the proffered reason is a pretext.” McBride v. BIC Consumer Products Mfg. Co., Inc., 583
F.3d 92, 96 (2d Cir.2009) (internal quotation marks omitted).
35
a.
Prima Facie Case
“In order to establish a prima facie case of discriminatory discharge, a plaintiff must
show that: (1) her employer is subject to the ADA; (2) she suffers from a disability within the
meaning of the ADA; (3) she could perform the essential functions of her job with or without
reasonable accommodation; and (4) she was fired because of her disability.” Ryan v. Grae &
Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998). The Second Circuit has instructed that “[t]o
make out a prima facie case is not a demanding burden.” Greenway v. Buffalo Hilton Hotel, 143
F.3d 47, 52 (2d Cir. 1998).
Defendant does not contest that it is subject to the ADA, nor that Plaintiff was disabled
within the meaning of the ADA. As discussed supra, Plaintiff was qualified for her position.
Finally, “‘[f]ailure to consider the possibility of reasonable accommodation for . . . disabilities, if
it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a
discharge solely because of the disabilities.’” Parker v. Columbia Pictures Indus., 204 F.3d 326,
338 (2d Cir. 2000) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d
Cir.1995)) (alteration in original). Since there is a genuine issue of material fact concerning
whether Prudential failed to accommodate Ms. Mendillo’s disability, as discussed supra, this
disputed fact may support an inference that she was fired because of her disability, satisfying her
prima facie case and shifting the burden to Defendant.
b.
Pretext
As also discussed supra, Prudential has provided a legitimate, nondiscriminatory reason
for Ms. Mendillo’s discharge—her failure to maintain the required call quality scores
consistently. Therefore, the ultimate burden of persuasion falls to Ms. Mendillo to establish that
Prudential’s articulated reason is pretextual. The Court finds, when the record is reviewed as a
36
whole, that there is sufficient evidence to create a genuine issue of fact as to whether
Defendant’s reason was a pretext for discrimination.
The evidence indicates that Prudential’s accommodations unit could have contacted Ms.
Mendillo to discuss possible accommodations that may have helped address her disability-related
limitations. Thus, a reasonable juror could infer that the articulated reason for her discharge may
not have been the true reason; it instead might have been a desire to avoid accommodating her
disability.
Accordingly, the Court concludes that there are genuine issues of material fact as to
Plaintiff’s disability discrimination claim for unlawful discharge set forth in Count Two and
denies Defendant’s motion for summary judgment as to this claim.
3.
Retaliation
The ADA makes it unlawful for an employer to “discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). “Claims for
retaliation are analyzed under the same burden-shifting framework established for Title VII
cases.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
a.
Prima Facie Case
“To establish a prima facie case of retaliation under the ADA, a plaintiff must establish
that (1) the employee was engaged in an activity protected by the ADA, (2) the employer was
aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there
existed a causal connection between the protected activity and the adverse employment action.”
37
Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). “A plaintiff's
burden at this prima facie stage is de minimis.” Treglia, 313 F.3d 713, 719 (2d Cir. 2002).
Viewing the record in the light most favorable to Plaintiff, she still fails to establish a
prima facie case. First, “protected activity” refers to formal or informal complaints protesting or
opposing statutorily prohibited discrimination and must put the employer on notice that the
plaintiff believed that discrimination was occurring. Hernandez v. Int’l Shoppes, LLC, 100 F.
Supp. 3d 232, 267 (E.D.N.Y. 2015). Even if Ms. Mendillo’s conversation with her supervisor
regarding her physical impairments qualifies as participating in a protected activity, thereby
satisfying the first prong, see id. at 268, there is nothing in the record from which to infer that
Prudential understood that she was engaging in protected activity. Instead, Prudential claims not
to have been aware that Ms. Mendillo was protesting or opposing disability discrimination and
Ms. Mendillo offers no evidence to the contrary. While Prudential’s failure to engage with Ms.
Mendillo is enough to support her failure to accommodate claim under the ADA going forward
to a jury, it does not support an ADA retaliation claim, even though Ms. Mendillo’s discharge
qualifies as an adverse employment action. In any event, nothing in the record establishes a
causal connection between the protected activity, i.e., her conversation with her supervisor about
her physical condition, and the adverse employment action. The two were not even temporally
proximate, having occurred nearly eleven months apart.
Based on the failure to satisfy prongs two and four of the prima facie case, summary
judgment must be granted as to Plaintiff’s ADA retaliation claim.
38
D.
Third and Fifth Counts: CFEPA Claims
1.
Third Count: Discrimination Under the CFEPA
The CFEPA is generally “coextensive” with federal anti-discrimination statutes, see
Brittell v. Dep’t of Correction, 247 Conn. 148, 164 (1998), and similarly prohibits employers
from discriminating or retaliating against individuals because of their age or disability, Conn.
Gen. Stat. Ann. § 46a-60(a)(1). Plaintiff has brought CFEPA claims based on being
“discriminatorily denied . . . equal treatment on the basis of her age and disability in violation of
C.G.S. Section 46a-60(a).” Amended Complaint at ¶¶ 44-50. Without reaching the issue of
whether a combined age and disability discrimination claim exists under Connecticut law, the
Court analyzes these two claims under CFEPA as two distinct ones, dismissing the former, while
retaining for trial the latter.
a.
Age Discrimination Under the CFEPA
CFEPA claims for age discrimination are analyzed generally according to corresponding
federal precedent: courts apply the traditional McDonnell Douglas burden-shifting framework
established for Title VII claims. See Hopkins v. New England Health Care Employees Welfare
Fund, 985 F. Supp. 2d 240, 259 (D. Conn. 2013). There is some uncertainty concerning whether
the motivating factor test still applies for CFEPA age discrimination claims post-Gross. See,
e.g., Dwyer v. Waterfront Enters., Inc., No. CV126032894S, 2013 WL 2947907, at *6-7, 2013
Conn. Super. LEXIS 1174, at *17-23 (Conn. Super. Ct. May 24, 2013); Weisenbach v. LQ
Mgmt., No. 3:13-cv-01663, 2015 WL 5680322, at *8-9, 2015 U.S. Dist. LEXIS 128839, at*3134 (D. Conn. Sept. 25, 2015). However, the question is irrelevant in this case. For the reasons
discussed supra with respect to her ADEA claim, Plaintiff likewise cannot establish that age was
a motivating factor in her discharge—there is no evidence connecting Ms. Mendillo’s age to any
39
of Prudential’s adverse employment actions. Therefore, summary judgment is granted with
respect to Plaintiff’s CFEPA age discrimination claim.
b.
Disability Discrimination Under the CFEPA
“Discriminatory claims brought under CFEPA, Conn. Gen. Stat. § 46a–60 et seq.
are construed similarly to ADA claims, with Connecticut courts reviewing federal
precedent concerning employment discrimination and retaliation for guidance in
enforcing the CFEPA,” except that “CFEPA’s definition of physical disability is broader
than the ADA’s.” Hopkins v. New England Health Care Employees Welfare Fund, 985
F. Supp. 2d 240, 255-56 (D. Conn. 2013) (internal quotation marks omitted). Because
Ms. Mendillo was disabled under the narrower ADA for purposes of summary judgment,
this difference does not affect the Court’s analysis of the CFEPA claims.
Therefore, for the reasons discussed supra in analyzing the ADA discrimination claim,
Defendant’s motion for summary judgment is denied with respect to Plaintiff’s CFEPA disability
discrimination claim.
2.
Fifth Count: Retaliation under the CFEPA
Plaintiff has asserted claims of retaliation in violation of the CFEPA. Courts approach
such claims in generally the same manner as they do retaliation claims brought under federal
anti-discrimination laws. See Weichman v. Chubb & Son, 552 F. Supp. 2d 271, 286 (D. Conn.
2008) (“ADEA and CFEPA retaliation claims both use the McDonnell Douglas burden-shifting
framework.”); Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81, 90 (D. Conn. 2006) (“CFEPA
retaliation claims are analyzed in the same manner as ADA retaliation claims.”). As discussed
supra, Plaintiff has failed to establish her prima facie case for retaliation under both the ADEA
40
and the ADA, and therefore summary judgment likewise must be granted on the Fifth Count of
the Amended Complaint.
E.
Sixth and Seventh Counts: FMLA Claims
The FMLA entitles eligible employees “to a total of 12 workweeks of leave during any
12-month period . . . [b]ecause of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1).
[T]he FMLA does not require a complete inability to work fulltime . . . but rather
permits leave to be taken ‘intermittently or on a reduced leave schedule when
medically necessary,’ 29 U.S.C. § 2612(b)(1). ‘A reduced leave schedule is a
leave schedule that reduces an employee’s usual number of working hours per
workweek, or hours per workday’ and intermittent leave is ‘taken in separate
blocks of time due to a single qualifying reason.’ 29 C.F.R. § 825.202(a).
Santiago v. Dep’t of Transp., 50 F. Supp. 3d 136, 145 (D. Conn. 2014). The Second Circuit has
recognized two theories of liability under the FMLA: interference and retaliation. See, e.g.,
Potenza v. City of New York, 365 F.3d 165, 167-68 (2d Cir. 2004). “A plaintiff may assert both
claims.” DeAngelo v. Yellowbook Inc., 105 F. Supp. 3d 166, 182 (D. Conn. Apr. 27, 2015).
1.
Sixth Count: Interference with Rights under FMLA
“While the Second Circuit has yet to set forth a standard to apply to FMLA interference
claims, the weight of authority in the Circuit holds that in order to establish a prima facie case of
interference in violation of the FMLA a 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 his
intention to take leave; (5) that [she] was denied benefits to which he was entitled under the
FMLA.” DeAngelo, 105 F. Supp. 3d at 182 (internal quotation marks and citations omitted).
Defendant does not contest the first four prongs of the prima face case, but argues that Ms.
Mendillo was never denied any benefits to which she was entitled under the FMLA.
41
“With interference claims, the issue is simply whether the employer provided the
employee with the entitlements set forth in the FMLA—for example, a twelve-week period of
leave or reinstatement following a medical leave. The employer’s subjective intent is not an
issue.” Wanamaker v. Town of Westport Bd. of Educ., 11 F. Supp. 3d 51, 69 (D. Conn. 2014).
Because intent is not a factor, Plaintiff need not establish that Defendant meant to deprive her of
her FMLA entitlements. Accordingly, Plaintiff concedes that Prudential gave her all of the
FMLA leave she requested, but argues that Prudential effectively deprived her of certain
entitlements under the FMLA.
“Substantive rights under the FMLA subject to interference claims include the right to
take leave, receive benefits during leave and be restored to the same or equivalent position
following leave.” DeAngelo, 105 F. Supp. 3d at 182 (D. Conn. 2015) (internal quotation marks
and citation omitted). For her interference claim, Ms. Mendillo
need only prove by a preponderance of the evidence that her taking of FMLAprotected leave constituted a negative factor in the decision to terminate her. She
can prove this claim, as one might any ordinary statutory claim, by using either
direct or circumstantial evidence, or both. . . . No scheme shifting the burden of
production back and forth is required.
Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175-76 (2d Cir. 2006). In addition, the FMLA
requires an employer to return an employee to the same position the employee held when leave
commenced, or to an equivalent position, upon the employee’s return from FMLA leave. 29
U.S.C. § 2614(a)(1); 29 C.F.R. § 825.214. Finally, when an employee is on intermittent leave or
leave on a reduced leave schedule, the FMLA allows an employer to transfer an employee
temporarily to an available alternative position offered by the employer for which the employee
is qualified, that has equivalent pay and benefits, and that better accommodates recurring periods
42
of leave than the regular employment position of the employee. 29 U.S.C. § 2612(b)(2); 29
C.F.R. § 825.204(a).
It is undisputed that, after Ms. Mendillo returned from her full-time FMLA leave and
while she was still on FMLA intermittent/reduced schedule leave, Prudential removed a
substantial portion of her job responsibilities. However, she was not transferred to an alternative
position. She was in the same position she held when her leave commenced. Further, the
evidence indicates that the duties that were taken away from her during her intermittent/reduced
schedule leave are typically taken away from Customer Service Representatives who are having
difficulty meeting the call quality goal. See Hogard Dep. 47:5-23 (Prudential removed non-call
duties from “anybody who was having trouble with quality”); Scott Dep. 15:12-20 (“It was
standard practice at the time to remove off-line activity when folks were struggling with their
quality results.”). “An employee has no greater right to reinstatement or to other benefits and
conditions of employment than if the employee had been continuously employed during the
FMLA leave period.” 29 C.F.R. § 825.216(a).
Because the record does not indicate that Prudential interfered with any of Ms.
Mendillo’s entitlements under the FMLA, the Court grants summary judgment on the Sixth
Count of the Amended Complaint.
2.
Seventh Count: Retaliation under FMLA
The McDonnell Douglas burden-shifting analysis applies to FMLA retaliation claims,
requiring that a plaintiff’s prima facie retaliation case show 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
43
rise to an inference of retaliatory intent.” Potenza, 365 F.3d at 168. Defendant does not contest
the first prong, and, as discussed supra, Plaintiff was qualified for the position.
With respect to the third and fourth prongs, the record reflects that Prudential subjected
Ms. Mendillo to increasingly severe stages of the Performance Improvement Process the longer
she was on FMLA leave, took away a significant portion of her job responsibilities while she
was on FMLA intermittent/ reduced schedule leave, and terminated her employment while she
was still exercising her right to FMLA leave. These facts are sufficient to satisfy the third and
fourth prongs of the prima facie case. See Wanamaker, 11 F. Supp. 3d at 78 (noting that “actions
that the Second Circuit has deemed sufficiently disadvantageous to constitute an adverse
employment action have included a less distinguished titled, significantly diminished
responsibilities, or other indices unique to a particular situation”).
As discussed at length supra, Prudential has articulated a legitimate, nondiscriminatory
reason for Ms. Mendillo’s discharge: her inconsistent call quality scores. The evidence,
however, reflects that Prudential appeared to be concerned with Ms. Mendillo’s “challenges
managing her schedule with FMLA.” Scott Dep. 47:2-3. “There was a concern . . . around the
doctor’s appointments and other obligations.” Brand Dep. 65:17-19. A reasonable juror could
infer from such evidence, as well from the evidence making up her prima facie case, that
Prudential’s articulated reason for discharge was pretext and that the real reason was retaliation
for Ms. Mendillo’s continuing use of FMLA intermittent/reduced schedule leave.
Viewing the record in the light most favorable to Plaintiff, the Court must deny summary
judgment as to the Seventh Count of the Amended Complaint.
44
III.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s motion for summary judgment [Doc. No. 59], as follows. The Court GRANTS
summary judgment as to the First, Fourth, Fifth, and Sixth Counts of the Amended Complaint
and as to the age discrimination claim of the Third Count. The Court DENIES summary
judgment as to Second and Seventh Counts and as to the disability discrimination claim of the
Third Count.
SO ORDERED at Bridgeport, Connecticut, this 12th day of January, 2016.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge
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