Gaither v. Stop & Shop Supermarket Co LLC

Filing 42

ORDER; Defendant's Motion 30 for Summary Judgment is DENIED. Signed by Judge Janet Bond Arterton on 1/7/2015. (Morril, Gregory)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
HOLLIE GAITHER,
Plaintiff,
v.
STOP & SHOP SUPERMARKET CO LLC,
Defendant.

Civil No. 3:13cv658 (JBA)

January 7, 2015

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant Stop & Shop Supermarket Co LLC (“Stop & Shop”) moves [Doc. # 30]
for summary judgment on Plaintiff Hollie Gaither’s claims under the Connecticut Fair
Employment Practices Act (“CFEPA”) for failure to grant her a reasonable leave of
absence or to make a reasonable effort to transfer her to a suitable temporary position in
order to accommodate her disability resulting from pregnancy and wrongful termination
because of her pregnancy.1 For the reasons that follow, Defendant’s motion is denied.
I.

Facts
Plaintiff began working at a Stop & Shop supermarket in Glastonbury,

Connecticut in October 2011 as a part-time floral clerk, cashier, bagger, and self-scan
monitor, working approximately 15 to 25 hours per week. (Gaither Dep., Ex. 4 to Def.’s
Loc. R. 56(a)1 Stmt. [Doc. # 32] at 74–76.) As a part-time employee, Ms. Gaither was not
entitled to benefits, such as health insurance or paid leave. (Id. at 184–85.) In January
2012, Ms. Gaither became pregnant and immediately notified Jim Fusco and Lynn

1

The one-count Complaint [Doc. # 1] alleges pregnancy discrimination in
violation of Conn. Gen. Stat. § 46a-60(a)(7)(A), (B), and (E) and was originally filed in
state court and removed to federal court by Defendant on the basis of diversity of
citizenship.

Nelson, assistant store managers, who both responded by congratulating her. (Id. at 83–
87.) Plaintiff continued her normal duties while pregnant, however, in June 2012, she
started to suffer from extreme back pain as a result of her pregnancy and her doctor
restricted her from lifting objects greater than fifteen pounds. (Id. at 93, 109, 147–48.)
Ms. Gaither presented Ms. Nelson with a note from her obstetrician, dated June 4, 2012
(Ex. 11 to Def.’s 56(a)1), noting the weight restriction (Gaither Dep. at 112).
Prior to this date, Plaintiff had not had any problems with Ms. Nelson, but
afterwards Ms. Nelson would on an almost daily basis assign her tasks that required her
to exceed her lifting restriction. When Ms. Gaither would remind Ms. Nelson of the
lifting restriction, Ms. Nelson would respond by saying that “[w]e have a business to run”
or “you need to do it, this is the job, you have to do your job” or she would just ignore
Plaintiff, making a “huff noise” and storm away. (Id. at 32, 28, 119–20.)
In July 2012, the final month of Ms. Gaither’s pregnancy, her back pain became
even more severe and she had to call out sick for several days. (Id. at 151–52.) On July
28, 2012, Ms. Gaither presented Ms. Nelson with a doctor’s note from two days prior that
memorialized her appointment (Ex. A to Pl.’s Loc. R. 56(a)2 Stmt. [Doc. # 38]), but did
not contain any further medical restrictions or diagnosis. Ms. Nelson responded, “I don’t
care what you’re going through, what type of pain, we have a business to run, and you
have a job to do.” (Gaither Dep. at 156.) Ms. Nelson, Ms. Gaither, and the store
manager, Bill Haberern, then had a meeting in Mr. Haberern’s office in which Ms. Nelson
explained Ms. Gaither’s lifting restriction. Mr. Haberern had apparently been unaware of
the lifting restriction previously and upon learning of it, he said that Ms. Gaither should
have been terminated as soon as she submitted the doctor’s note with the restriction and
2

explained to Ms. Gaither that she would now have to be “terminated.” (Gaither Dep. at
164–65.) Ms. Gaither asked if she could instead take medical leave, but Mr. Haberern
explained that she was not eligible under company policy because she had not worked for
the company for a year. Mr. Haberern said that she was welcome to return to the
company when she was ready, but Ms. Gaither contends that she was told that she would
need to apply for her position again and there was no guarantee that there would be an
open position or that she would be rehired. (Nelson Dep., Ex. 7 to Def.’s 56(a)1 at 60–62;
Gaither Dep. at 174.)
Ms. Gaither asked Mr. Haberern to draft a letter memorializing her termination.
(Gaither Dep. at 174.) In a letter dated July 30, 2012, Mr. Haberern wrote:
Hollie Gaither has been employed by Stop and Shop Supermarkets since
October 21, 2011. Her employment has been terminated as of this past
Sunday, July 29th, 2012, as she is presently unable to fulfill the
requirements of her job description relative to lifting. We are looking
forward to having Hollie back, when she is back to 100%.
(Haberern Ltr., July 30, 2012, Ex. 17 to Def.’s 56(a)1.)
Two weeks later, on August 12, 2012, Ms. Gaither gave birth and was medically
able to resume work thereafter. However, she never reapplied to work at Stop & Shop
explaining that she did not feel that she was welcome to return given that Mr. Haberern
had fired her rather than providing her with a leave of absence as she requested. (Pl.’s
Resps. to Def.’s Interrogs., Ex. 18 to Def.’s 56(a)1 at 7–8; Gaither Dep. at 176, 182–84.)
After losing her job, Plaintiff was unable to afford her rent and was evicted from
her apartment shortly after she gave birth. (Gaither Dep. at 43–44.) Although Ms.
Gaither would have been without income even if she had been granted the unpaid leave

3

of absence that she requested, she contends that her termination caused her eviction,
because an employee of her landlord said that because the landlord did not know how
long it would take Ms. Gaither to find another job, the landlord would have to evict her
for nonpayment of the rent whereas if she was just on leave he could have “worked with”
her. (Id. at 202–03, 205.) After being evicted, Ms. Gaither and her husband became
homeless and moved to South Carolina to stay with his family for a time. However, in
January 2013, the family told Ms. Gaither and her husband that they had to leave and they
wound up living in a homeless shelter. (Id. at 208–09.)
II.

Discussion2
Although pregnancy discrimination claims are generally analyzed under the

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) framework, “the McDonnell
Douglas framework does not apply where, for example, a plaintiff is able to produce direct
evidence of discrimination.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002).
Here, there is no factual dispute that Plaintiff was terminated because of her pregnancy2

Summary judgment is appropriate where, “resolv[ing] all ambiguities and
draw[ing] all permissible factual inferences in favor of the party against whom summary
judgment is sought,” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008), “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law,” Fed. R. Civ. P. 56(a). “A dispute regarding a material fact
is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.
2006) (quotation marks omitted). “The substantive law governing the case will identify
those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary
judgment.’” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a
motion for summary judgment, the Court may consider depositions, documents,
affidavits, interrogatory answers, and other exhibits in the record. Fed. R. Civ. P. 56(c).
4

related medical restrictions and the primary question is a legal one:

whether this

termination was prohibited under CFEPA. Cf. Craine v. Trinity Coll., 259 Conn. 625, 637
(2002) (“[The McDonnell Douglas] methodology is intended to provide guidance to fact
finders who are faced with the difficult task of determining intent in complicated
discrimination cases. It must not, however, cloud the fact that it is the plaintiff’s ultimate
burden to prove that the defendant intentionally discriminated against her because of her
sex.”).
Defendant contends that this termination was not discriminatory under CFEPA
because Plaintiff’s “lifting restriction rendered her unable to perform the essential
functions of her job” and “terminating a woman’s employment because she is unable to
perform essential job functions as a result of pregnancy complications does not constitute
pregnancy discrimination”3 and “[t]here is no evidence suggesting that Stop & Shop
treated Plaintiff differently from any non-pregnant employees with similar physical
limitations.” (Def.’s Mem. Supp. [Doc. # 31] at 9–12.)
Defendant’s exclusive reference to Title VII cases in support of its arguments is
misplaced here because, while the Connecticut Supreme Court has “often looked to
federal employment discrimination law for guidance in enforcing our own
antidiscrimination statute,” it has “also recognized that, under certain circumstances,

3

Although Defendant maintains that Plaintiff was unable to perform the written
job description of her job, which required lifting up to 60 pounds as a floral clerk and 25
pounds as a cashier (Exs. 9–10 to Def.’s 56(a)1), both Ms. Nelson and Mr. Haberern
testified that Ms. Gaither’s restriction could be accommodated despite the written job
descriptions for her positions and she worked in such positions with this restriction in
place for over a month and a half prior to her termination (Nelson Dep. at 55–56;
Haberern Dep. at 99).
5

federal law defines the beginning and not the end of our approach to the subject.” State v.
Comm’n On Human Rights & Opportunities, 211 Conn. 464, 470 (1989) (internal
quotation marks omitted)). Thus, while in many instances there are “similarities between
Title VII and the Connecticut law, . . . the state statute contemplates broader relief than its
federal counterpart.” Graham v. State of N.Y., Dep’t of Civil Serv., 907 F.2d 324, 327 (2d
Cir. 1990) (interpreting Title VII and distinguishing Connecticut law); see also Murphy v.
Robert Burgess & Norwalk Econ. Opportunity Now, Inc., No. 3:96CV01987 (AHN), 1997
WL 529610, at *4 (D. Conn. July 16, 1997) (“CFEPA is, in many respects, stronger than
the federal act, and . . . the difference between the state and federal acts was purposeful
and is meaningful.”).
Under Title VII, pregnancy discrimination is defined as a form of gender-based
discrimination and prohibited on this basis. See O’Bar v. Borough of Naugatuck, No.
CIV.3:01CV867(PCD), 2002 WL 32769183, at *4 n.6 (D. Conn. Dec. 3, 2002) (“The
Pregnancy Discrimination Act, codified at 42 U.S.C. § 2000e(k), is not a basis for [a]
claim independent of Title VII’s prohibition against gender discrimination.”). Title VII
provides:
It shall be an unlawful employment practice for an employer . . . to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1). Originally, there was no provision in Title VII specifically
protecting pregnant employees, but with the Pregnancy Discrimination Act of 1978

6

(“PDA”), 42 U.S.C. § 2000e(k), Congress amended the definition of gender-based
discrimination under Title VII to include pregnancy:
The terms “because of sex” or “on the basis of sex” include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same for all employmentrelated purposes . . . as other persons not so affected but similar in their
ability or inability to work . . . .
42 U.S.C. § 2000e(k).
It is “well established” that the PDA was passed in reaction to the Supreme
Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which held that it
was not discrimination “because of sex” for a company’s disability plan to provide
coverage during a period of disability resulting from nonoccupational causes but to
exclude from coverage disability arising from pregnancy. Newport News Shipbuilding &
Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 678 (1983). The Gilbert dissenters argued that the
company’s plan, which was intended to provide employees with protection against the
risk of uncompensated unemployment caused by physical disability, discriminated on the
basis of sex by giving men protection for all categories of risk but giving women only
partial protection. Thus, the dissenters asserted that the statute had been violated because
conditions of employment for females were less favorable than for similarly situated
males. See Gilbert, 429 U.S. at 155 (Brennan, J., dissenting).
When Congress passed the PDA, “it unambiguously expressed its disapproval of
both the holding and the reasoning of the Court in the Gilbert decision,” and many of the
bill’s proponents “expressly agreed with the views of the dissenting Justices” from Gilbert.
Id. at 678–79. The second clause of § 2000e(k) providing that pregnant women must be
7

treated the same as non-pregnant workers who are “similar in their ability or inability to
work,” “explains the application of the general principle to women employees,” Newport
News Shipbuilding, 462 U.S. at 679 n.14. Read in this context, the PDA “makes clear that
it is discriminatory to treat pregnancy-related conditions less favorably than other
medical conditions” “because only women can become pregnant.” Id. at 684.
The “PDA does not require employers to extend any benefits to pregnant women
that they do not already provide to other disabled employees,” California Fed. Sav. &
Loan Ass’n v. Guerra, 479 U.S. 272, 286 (1987), but rather provides that “women as
capable of doing their jobs as their male counterparts may not be forced to choose
between having a child and having a job,” UAW v. Johnson Controls, Inc., 499 U.S. 187,
204 (1991). Thus, a Title VII plaintiff must prove that “she was treated less favorably than
a nonpregnant employee under identical circumstances and that her pregnancy was the

8

reason she was treated less favorably.”4 Piraino v. Int’l Orientation Res., Inc., 137 F.3d
987, 990 (7th Cir. 1998) (internal quotation marks and alterations omitted).
By contrast, under CFEPA, pregnancy discrimination is not defined as a form of
gender discrimination, which is separately addressed in Conn. Gen. Stat. § 46a-60(a)(1),
but rather CFEPA has specific provisions requiring accommodation of pregnant
employees:

4

The Supreme Court recently heard oral argument in Young v. United Parcel
Serv., Inc., where the Fourth Circuit had held that a “UPS policy limiting light duty work
to some employees—those injured on-the-job, disabled within the meaning of the ADA,
or who have lost their DOT certification—but not to pregnant workers” did not violate
the PDA. Young v. United Parcel Serv., Inc., 707 F.3d 437, 445 (4th Cir. 2013) cert.
granted, 134 S. Ct. 2898 (2014). Young’s job description required her to be able to lift up
to 70 pounds, but she was medically restricted to 20 pounds while pregnant. Id. at 448.
Young claimed that the fact that UPS offered light-duty assignments to some employees,
but not pregnant workers “constitutes direct evidence of discrimination.” Id. at 446. The
Fourth Circuit rejected this argument, holding that “UPS has crafted a pregnancy-blind
policy” and that Young’s interpretation of the PDA “would require employers to provide,
for example, accommodation or light duty work to a pregnant worker whose restrictions
arise from her (off-the-job) pregnancy while denying any such accommodation to an
employee unable to lift as a result of an off-the-job injury or illness” and “would thus
imbue the PDA with a preferential treatment mandate that Congress neither intended
nor enacted.” Id. at 446–48. The Supreme Court is faced with the question under Title
VII of “[w]hether, and in what circumstances, an employer that provides work
accommodations to nonpregnant employees with work limitations must provide work
accommodations to pregnant employees who are ‘similar in their ability or inability to
work’”? but Young does not dispute that “[s]o far as the PDA is concerned, an employer
is free to accommodate none of its workers,” as long as pregnant employees are treated
equally. Young v. UPS, 12-1226, Pet.’r’s Br. at i, 29. Because, as discussed above, Plaintiff
here does not challenge the disparate treatment of pregnant and non-pregnant employees
but rather challenges only the failure to provide specific accommodations to her required
by state law, the disposition of Young will not affect this case, but it is illustrative of the
differing scope of Title VII and CFEPA.
9

It shall be a discriminatory practice in violation of this section . . . . For an
employer, by the employer or the employer’s agent: (A) To terminate a
woman’s employment because of her pregnancy; (B) to refuse to grant to
that employee a reasonable leave of absence for disability resulting from
her pregnancy; . . . (D) to fail or refuse to reinstate the employee to her
original job or to an equivalent position . . . upon her signifying her intent
to return . . .; [or] (E) to fail or refuse to make a reasonable effort to
transfer a pregnant employee to any suitable temporary position which
may be available in any case in which an employee gives written notice of
her pregnancy to her employer and the employer or pregnant employee
reasonably believes that continued employment in the position held by the
pregnant employee may cause injury to the employee or fetus.
Conn. Gen. Stat. § 46a-60(a)(7).5
In California Fed. Sav. & Loan Ass’n, the Supreme Court upheld a California law,
similar to CFEPA, which provided greater protection to pregnant women than Title VII
by “establish[ing] benefits that employers must, at a minimum, provide to pregnant
workers,” including maternity leave and guaranteed reinstatement. 479 U.S. at 291; cf.
Piraino, 84 F.3d at 274 (“The PDA . . . . does not impose an affirmative obligation on
employers to offer maternity leave or to take other steps to assist pregnant workers, but it
does require the employer to treat the employee as well as it would have if she were not
pregnant.”).
The Supreme Court noted that when Congress was debating the PDA, it “was
aware of [preexisting] state laws” including CFEPA, but did not consider them to be a
form of “reverse discrimination” against men that would themselves violate Title VII.
California Fed. Sav. & Loan Ass’n, 479 U.S. at 287 & n.24 (citing Conn. Gen. Stat. § 46a-

5

As Plaintiff was not granted pregnancy leave, she does not assert a claim for
failure to reinstate under Conn. Gen. Stat. § 46a-60(a)(7)(D).
10

60(a)(7)). Rather, “Congress intended the PDA to be a floor beneath which pregnancy
disability benefits may not drop—not a ceiling above which they may not rise.” Id. at 285;
see also 42 U.S.C. § 2000e–7.
CFEPA “on its face indicates that Connecticut has exercised this prerogative” to
provide pregnant employees with greater protection than Title VII does. Zamore v. Dyer,
597 F. Supp. 923, 928 (D. Conn. 1984). Thus, even if Defendant is correct that “[t]here is
no evidence suggesting that Stop & Shop treated Plaintiff differently from any nonpregnant employees with similar physical limitations” (Def.’s Mem. Supp. at 10), this
argument is beside the point because CFEPA requires employers to provide certain
benefits and protections for pregnant employees, such as “a reasonable leave of absence
for disability resulting from her pregnancy,” § 46a-60(a)(7)(B), and “a reasonable effort to
transfer a pregnant employee to any suitable temporary position,” § 46a-60(7)(E). Cf.
Fenn Mfg. v. Comm’n on Human Rights & Opportunities, No. CIV. CV 92-509435, 1994
WL 51143, at *15 (Conn. Super. Ct. Feb. 8, 1994) (“The statute thus empowers workers
who wish both to work during pregnancy and to avoid maternal and fetal hazards in the
workplace to do so by having reasonable options to continue working elsewhere to avoid
those hazards.”).
Defendant acknowledges that it “did not formally grant Plaintiff a leave of
absence” but contends that “the result was indistinguishable” because as a result of her
termination, she did not work the last two weeks of her pregnancy, and with Mr.
Haberern’s July 30, 2012 letter stating that he “was looking forward to having [Plaintiff]
back, when she is back to 100%,” “Plaintiff’s situation would have been no different if
Stop & Shop had called the period between July 28 and August 12 a leave of absence
11

instead of a termination with an invitation to return.”6 (Def.’s Mem. Supp. at 13.)
Plaintiff counters that her “termination was not indistinguishable from a leave of
absence” because she was told only that “she might be rehired in the future if there was a
position available.”

(Pl.’s Opp’n [Doc. # 37] at 17–18.)

Contrary to Defendant’s

assertions, termination with only a non-binding vague statement that the employer “was
looking forward to having [Plaintiff] back” is not the equivalent of granting a leave of
absence. Defendant’s argument is belied by the text of CFEPA which prohibits an
employer from refusing “to grant to that employee a reasonable leave of absence,” § 46a60(a)(7)(B), and explicitly prohibits termination “because of” an employee’s pregnancy,
§ 46a-60(a)(7)(A).
Additionally, under CFEPA an employee on maternity leave is generally entitled
to reinstatement “to her original job or to an equivalent position with equivalent pay and”
benefits, Conn. Gen. Stat. § 46a-60(a)(7)(D), which is a protection that would not be
afforded to an employee who is denied such leave and thus there is plainly a significant
difference between being granted leave under CFEPA and being terminated. See Zamore,
597 F. Supp. at 927 (“Unlike Title VII, [§ 46a-60(a)(7)(D)] explicitly provides that a[n] . . .

6

Although Mr. Haberern testified that he would not have made Ms. Gaither
reapply for her position and would have definitely rehired her if she called him once she
was medically cleared to work and that he told Plaintiff as much (Haberern Dep., Ex. 8 to
Def.’s 56(a)1 at 80–81, 46), there is a dispute of fact on this point with Plaintiff claiming
that Mr. Haberern explicitly stated that she would have to reapply for her position and
her rehiring was not guaranteed, which she said was “kind of devastating at the time”
because she “believed that they were going to give me a leave” of absence and “did not
expect him to fire me.” (Gaither Dep. at 174, 208–09).
12

employer must reinstate an employee to her original or an equivalent position following
maternity leave, if one is granted.”).
In Zamore, the court held that an employer did not comply with the statutory
requirement of reinstatement under § 46a-60(a)(7)(D), when the plaintiff was terminated
while on maternity leave and the employer later “invited” her to apply for another
position because “an invitation to apply for a possible job is not the same as the statutorily
mandated placement in an equivalent position.” 597 F. Supp. at 925 n.1.
Defendant does not discuss any § 46a-60(a)(7)(B) case law and simply maintains
that there was no effective difference between offering Plaintiff leave and terminating her
with the understanding that she could be rehired.7 (Reply [Doc. # 39] at 4.) Given that
Defendant’s argument is not supported by the clear text or statutory framework of the
relevant CFEPA provisions, and because a factfinder could credit Plaintiff’s statement
that she was denied leave and never told that she was guaranteed to be rehired after
termination, Defendant is not entitled to summary judgment on the denial of leave claim.

7

Plaintiff, for her part, cited only two cases analyzing CFEPA’s pregnancy leave
provision, both of which she acknowledges are not directly applicable here. (Pl’s Opp’n at
8 n.2.) In Comm’n of Human Rights & Opportunities v. Truelove & MacLean, Inc., No.
115306, 1995 WL 415808, at *8 (Conn. Super. Ct. June 28, 1995) aff’d sub nom. Comm’n
on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337 (1996), the
court affirmed a Commission on Human Rights and Opportunities (“CHRO”) hearing
officer determination that an employer violated CFEPA by failing to grant leave, but this
finding was not addressed on appeal which instead primarily concerned the remedies
available for such violations. In Kenney v. Dep’t of Mental Health & Addiction Servs.,
HHDCV020813589S, 2012 WL 3641824, at *8 (Conn. Super. Ct. July 26, 2012), the court
granted summary judgment to an employer on a failure-to-grant leave claim under
CFEPA and the FMLA because the plaintiff had been offered FMLA leave but failed to
complete the required documentation.
13

These same facts could also support a wrongful termination claim. For example,
in Davis v. Manchester Health Ctr., Inc., 88 Conn. App. 60, 64 (2005), a nurse informed
her supervisor that a physically-demanding assignment that she had been given presented
a risk to her health and that of her unborn child and requested another less physically
demanding assignment. The supervisor refused to reassign her, even though such an
assignment was available, and the plaintiff left her shift rather than accept the demanding
assignment and was later terminated. Id. Upholding a jury verdict for the plaintiff, the
court held that § 46a–60(a)(7)(A) could be violated when an employee was terminated
“for choosing to leave her shift rather than to remain in an assignment she reasonably
believed posed a risk to her health and that of her unborn child” and that the “jury
reasonably could have found, therefore, that a direct nexus existed between the plaintiff’s
pregnancy and the defendant’s termination of the plaintiff’s employment.” Id. Here, too
a jury could reasonably determine that Plaintiff’s termination was the result of
Defendant’s failure to provide her with pregnancy leave and thus Defendant is not
entitled to summary judgment on the wrongful termination claim.
Defendant contends that the failure to transfer claim fails because “there is no
evidence suggesting that either Stop & Shop or Plaintiff believed that her continued
employment in her existing positions—floral clerk and cashier—might cause injury to
Plaintiff or her fetus.” (Def.’s Mem. Supp. at 15.) However, this argument is contradicted
by the premise of Defendant’s defense to this case, which is that due to the 15-pound
lifting restriction Plaintiff “was not qualified for the floral clerk or cashier positions at that
time.” (Id. at 9.) Clearly, if Plaintiff’s job required her to exceed a medically-imposed
lifting restriction, then continuing in such a position could “cause injury to the employee
14

or fetus.” Conn. Gen. Stat. § 46a-60(a)(7)(E). Second, Defendant contends that, at the
time of her termination, there was not a suitable position to which Plaintiff could have
been transferred because she did not believe that she could have continued working.
However, at oral argument, Plaintiff clarified that she does not claim a failure to transfer
on the date of her termination when she instead sought pregnancy leave, but rather
claims a failure to transfer starting on June 5, 2012, when the weight restriction was
imposed.

Plaintiff acknowledges that she never specifically requested a transfer to

another position, but she contends that after she advised Ms. Nelson of her lifting
restriction, Ms. Nelson nevertheless demanded on an almost daily basis that Plaintiff
perform tasks requiring her to exceed this lifting restriction. (Gaither Dep. at 27.)
Therefore, a jury could reasonably conclude that by keeping Plaintiff in an assignment
with a written job description that required her to lift in excess of her medical restriction
and demanding that Plaintiff in fact exceed her lifting restriction, she was effectively
denied a transfer. Thus, Defendant’s Motion for Summary Judgment is denied as to the
failure to transfer claim.

15

A.

Summary Judgment as to Remedies

Finally, Defendant moves for summary judgment on Plaintiff’s claimed remedies.8
Defendant contends that its invitation to Plaintiff to reapply for her position and her
failure to do so precludes an award of damages for back or front pay.9 (Def.’s Mem. Supp.
at 16–17.) However, as discussed above, Defendant’s offer was not unconditional, and
Comm’n on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337,
349 (1996), cited by Defendant, was a failure to reinstate claim under § 46a-60(a)(7)(D),
which is not asserted by Plaintiff here, and in any event held only that the award of back
pay was “discretionary rather than mandatory,” not that the failure to reapply precluded

8

“Some courts have limited the availability of summary judgment motions to
foreclosure of specific claims, not remedies,” Hamblin v. British Airways PLC, 717 F.
Supp. 2d 303, 306 (E.D.N.Y. 2010), but a 2010 amendment to Rule 56 clarified that a
party could move for summary judgment on “part of each claim or defense,” Fed. R. Civ.
P. 56(a), which was intended “to make clear . . . that summary judgment may be
requested not only as to an entire case but also as to a claim, defense, or part of a claim or
defense,” Fed. R. Civ. P. 56 advisory committee note (2010), and even before the
amendment, “the Second Circuit has regularly reviewed grants of ‘partial summary
judgment,’ eliminating elements of damages before trial,” Hamblin, 717 F. Supp. 2d at
308 (collecting cases); see also 11-56 Moore’s Federal Practice - Civil § 56.122 (“The
freedom to use summary judgment procedure to address particular issues or elements of
a claim is an important feature of Rule 56, making it a much more useful case
management device.”).
9

At oral argument, Plaintiff stated that she is not pursuing damages for lost
benefits, which she did not earn as a part-time employee.
16

an award of back pay as a matter of law.10 Likewise, as to front pay, the case cited by
Defendant makes clear that “[a]n award of front pay is a form of equitable relief, which is
a matter for the trial judge’s equitable discretion,” Shaw v. Greenwich Anesthesiology
Assocs., P.C., 200 F. Supp. 2d 110, 114 (D. Conn. 2002) (citing Whittlesey v. Union
Carbide Corp., 742 F.2d 724, 728 (2d Cir. 1984)), and thus is not appropriately decided at
this juncture.
Defendant also asserts as an affirmative defense (see Def.’s Ans. & Aff. Defenses
[Doc. # 14] at 6) that Plaintiff failed to mitigate damages because she did not apply to
work at other supermarkets once she moved to South Carolina. Because failure to
mitigate is an affirmative defense, “an employer seeking to avoid a lost wages award bears
the burden of demonstrating that a plaintiff has failed to satisfy the duty to mitigate.”
Broadnax v. City of New Haven, 415 F.3d 265, 268 (2d Cir. 2005). While a “discharged
employee must ‘use reasonable diligence in finding other suitable employment,’” it “need
not be comparable to their previous positions.” Greenway v. Buffalo Hilton Hotel, 143
F.3d 47, 53 (2d Cir. 1998) (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231–32 & n. 15
(1982)). It is undisputed that Plaintiff applied to “ten to [fifteen] jobs every week”
(Gaither Dep. at 190) and it is not material that Plaintiff did not apply to work at other

10

Notably the Truelove plaintiff sought reinstatement to her former position yet
could not offer a “satisfactory explanation for her not reapplying.” 238 Conn. at 341.
Here, Plaintiff does not seek reinstatement and has offered a justification for not
reapplying, explaining that she did not feel that she was welcome to return given that Mr.
Haberern had fired her rather than providing her with a leave of absence as she requested.
(Pl.’s Resps. to Def.’s Interrogs., at 7–8; Gaither Dep. at 176, 182–84.)
17

supermarkets.

Therefore, Defendant has not established it is entitled to summary

judgment on this affirmative defense.
Finally, Defendant contends that Plaintiff should be precluded from recovering
for emotional distress because she has contended in her Damages Analysis (Ex. 23 to
Def.’s 56(a)1 at 2) that her emotional distress was “based on her homelessness in early
2003” and she cannot prove that Defendant proximately caused her homelessness beyond
terminating her and her income.11 (Def.’s Mem. Supp. at 18.) However, proximate cause
“is ordinarily a question of fact” and it is for a jury to decide whether Plaintiff’s
termination was “a substantial factor in the resulting harm.”12 Coburn v. Lenox Homes,
Inc., 186 Conn. 370, 383–84 (1982).
Plaintiff has adduced sufficient evidence from which a jury could do so. Asked at
her deposition to describe “the emotional distress you believe you suffered as a result of
your issues with Stop & Shop that you described in your complaint,” Plaintiff responded
that being terminated was “devastating at the time, because I believed that they were
going to give me a leave of absence” and did not anticipate being terminated. (Gaither
11

In her deposition, Plaintiff did testify that her termination caused her homeless,
because even though she would not have been paid during her maternity leave, she was
told that her landlord said that if she was on leave rather than terminated, he could have
“worked with” her. (Gaither Dep. at 205.) Because this statement is inadmissible hearsay
when offered to prove the truth of the matter asserted, see Fed. R. Evid. 801(c), the Court
does not rely on it in denying summary judgment.
12

Further, contrary to Defendant’s assertion, the Damages Analysis does not refer
to Plaintiff’s homelessness as a “cause” of emotional distress but rather refers to it as one
of three examples of “[e]vidence of ‘egregious’ emotional distress,” which also included
having to relocate to South Carolina and “[t]reatment with mental health professional.”
(Damages Analysis at 2 (quoting Holness v. Nat’l Mobile Television, Inc., No. 09 CV 2601
KAM RML, 2012 WL 1744847, at *4 (E.D.N.Y. Feb. 14, 2012)).
18

Dep. at 208–09.) Thus, a jury could reasonably conclude that Plaintiff’s emotional
distress was proximately caused by Defendant terminating her when she justifiably
believed that her employer would grant her leave as required by CFEPA.
III.

Conclusion
For the reasons set forth above, Defendant’s Motion [Doc. # 30] for Summary

Judgment is DENIED.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 7th day of January, 2015.

19