Fiorillo v. United Technologies Corporation/Silorsky Aircraft Corporation/UTC/SAC et al
Filing
144
ORDER granting Defendants' 117 Motion for Summary Judgment for the reasons stated in the attached Memorandum of Decision and denying, as moot, Plaintiff's 139 143 Motions for Extension of Time. The Clerk is directed to enter judgment and close this file. Signed by Judge Vanessa L. Bryant on 3/21/2016. (Nadler, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DEBORAH ANN FIORILLO
Plaintiff,
v.
UNITED TECHNOLOGIES CORP.,
SIKORSKY AIRCRAFT CORP.,
ARIEL R. DAVID, LISA LAFFERTY,
NATALIE MORRIS, CHRISTIAN
MEISNER, AND LIBERTY LIFE
ASSURANCE OF BOSTON,
Defendants.
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CIVIL ACTION NO.
3:13-cv-1287 (VLB)
March 21, 2016
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [Dkt. #117]
Plaintiff Deborah Ann Fiorillo (“Fiorillo”) brings federal disability
discrimination, hostile work environment, and equal protection claims under,
respectively, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §
12101, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,
and 28 U.S.C. § 1983, and related state law claims against Defendants United
Technologies Corp. (“UTC”), Sikorsky Aircraft Corp. (“Sikorsky”), Ariel R. David
(“David”), Lisa Lafferty (“Lafferty”), Natalie Morris (“Morris”), and Christian
Meisner (“Meisner”) (collectively the “Employer Defendants”) and Defendant
Liberty Life Assurance of Boston (“Liberty”).1 The Employer Defendants have
1
The Court previously dismissed all claims against Defendant Liberty. See [Dkt.
#130, Memo. on Defs.’ Mots. to Dismiss, at 25]. It also dismissed Counts III (§
1983 claim) and IV (wrongful termination claim) against the Employer
Defendants as a matter of law. [Id. at 29-30]. Thus, the remaining claims
against the Employer Defendants are Counts I (ADA discrimination claim), II
(hostile work environment claim arising from disability discrimination), and VI
(intentional infliction of emotional distress claim). [Id. at 26-29, 30-32].
1
moved for summary judgment. For the reasons that follow, the motion is
GRANTED.
I.
Factual Background
A. Fiorillo’s Employment at Sikorsky
On or about June 21, 1993, Plaintiff Fiorillo was hired by Defendant
Sikorsky, a subsidiary of Defendant UTC. [Dkt. #119, Defs.’ Rule 56(a)(1)
Statement at ¶ 1; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 1].2 Prior to her
employment at Sikorsky, Fiorillo served honorably for twelve years in the United
States Air Force. [Dkt. #123-1, Pl.’s Statement of Disputed Facts at ¶ 2; Dkt. #1233, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 22:14-20, 25:24-25].
During her tenure at Sikorsky, Fiorillo’s job responsibilities increased, and
in or around 1997, Fiorillo transitioned to Defendant Sikorsky’s Research &
Development department. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 2; Dkt.
#123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 2]. In this department, Fiorillo served as
a contract administrator and was generally responsible for conducting due
diligence, researching contract clauses, and handling aspects of contract
negotiations. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 3-4; Dkt. #123-1, Pl.’s
Rule 56(a)(2) Statement at ¶¶ 3-4]. Fiorillo was a contract administrator until she
2
The parties disagree over the relationship between parent entity UTC and
subsidiary Sikorsky. While the Employer Defendants have presented an
affidavit attesting to their distinct business units and personnel, see [Dkt. #11820, Ex. 20 to Defs.’ Mot., Conant Aff.], Fiorillo offers portions of Defendant
Lafferty’s deposition, where she testified that she considered herself an
employee of UTC and worked in its human resources department. See [Dkt.
#123-4, Ex. B to Pl.’s Opp., Lafferty Dep. Tr. at 5:21-6:6]. This dispute of fact is
not material because, for the reasons discussed below, Fiorillo has not set forth
sufficient facts to support any of her remaining claims against any of the
Employer Defendants.
2
was terminated in November 2011. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶
4; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 4].
For several years before her termination, Fiorillo reported to James
Robinson (“Robinson”), who, in turn, reported to Defendant David. [Dkt. #119,
Defs.’ Rule 56(a)(1) Statement at ¶¶ 5, 7; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement
at ¶¶ 5, 7]. For approximately one year, 2005 through 2006, Fiorillo reported
directly to David. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 10; Dkt. #123-1,
Pl.’s Rule 56(a)(2) Statement at ¶ 10]. During that time, she found working for
David to be “[s]tressful, hectic, [and] chaotic” due to the many staff meetings and
work demands. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 35:21-36:2].
However, until July 2011, when Fiorillo went on medical leave, she had a good
professional relationship with David. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at
¶ 11; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 11]. Fiorillo voluntarily and
comfortably discussed her personal life with David, including her son’s
disabilities and disorders. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 12-13;
Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 12-13]. These personal
interactions lightened the mood of the workplace and helped her establish
rapport with David. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 15; Dkt. #123-1,
Pl.’s Rule 56(a)(2) Statement at ¶ 15]. Fiorillo also discussed with David several
sources of personal stress, including workload stress, work environment stress,
and stress caused by events at home. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo
Dep. Tr. at 45:10-20].
3
With regard to work stress, Fiorillo told David that her group was
overworked, and that she and her colleagues were working more than eight-anda-half to ten hours a day, sometimes up to sixteen hours. [Id. at 46:23-47:2].3 She
noted that several colleagues approached David about hiring additional
employees, but David did not grant any of their requests. [Id. at 192:19-193:8].
Fiorillo also believed that she received the bulk of the contract workload relative
to her two colleagues in the Research and Development group. [Id. at 178:23179:3, 180:18-181:11].4 However, when asked at her deposition, she was unable
to recall her colleagues’ workloads, or provide other support for her belief. [Id. at
182:17-23]. In addition, while Fiorillo did complain to David about the workload,
she never told anyone at Sikorsky that she was on the verge of a panic attack, nor
did she present him or anyone else at Sikorsky with a note from her doctor
advising a reduced workload. [Id. at 196:3-13]. She also never told anyone at
Sikorsky that she believed she received more work than her colleagues in her
group.5
3
At her deposition, Fiorillo estimated that in 2011, she worked “[m]ore than 60”
hours per week. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 198:10-12].
However, she acknowledged that this number was an estimate based on her
present-day recollection, and she did not have any documents memorializing
her hours at the time. [Id. at 199:3-9].
4
Fiorillo explained that there were three contractors, including her, in the
Research and Development Group, and that one of the positions experienced
significant turnover during the period in which she claimed she was receiving
the bulk of the work. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 180:18181:2]. Sometimes during this period, a male colleague was in the position,
whereas at other times, the position was held by a female colleague. [Id. at
180:25-181:11].
5
At most, in October 2011, months after she took her leave, Fiorillo mentioned to
Sikorsky employee, Kagdis, that she sought “an evenly distributed workload.”
4
Fiorillo further alleges that, when she complained about being overworked,
David made facial gestures and tones. [Id. at 91:6-92:14]. He also informed
Fiorillo that “everybody’s working” as long hours as she was, and that there was
“no place else” for the work to go. [Id. at 94:20-23; 193:12-21]. Fiorillo recalled
one incident where she spoke with David about her workload by the company’s
vending machine, and David replied, “we should be thankful that we’re busy.”
[Id. at 47:8-10]. After this incident, Fiorillo was apparently cautioned by her direct
supervisor, Robinson, not to complain about work levels to David, because
Robinson got “chewed out” by David in subsequent meetings. [Id. at 95:2-9].
Fiorillo also contended that David directed certain employees to contact her while
she was on vacation. [Id. at 92:14-93:3]. Finally, Fiorillo identified a job
opportunity within Sikorsky to which she sought to apply, but which David
“squashed” as a result of her disabilities. [Id. at 220:16-25]. Fiorillo claimed that
in 2010, she spoke with members of another Sikorsky group, the 53K program,
regarding an open position. [Id. at 225:21-25]. The employees said they thought
she would fit in well, and would speak with David about the possibility of her
joining the program. [Id. at 229:21-230:10]. Sometime thereafter, the posting was
removed from Sikorsky’s job system, and a few months later, five contract
employees were hired to fill the position. [Id. at 230:23-231:1]. One of the
employees in the 53K program told Fiorillo that “they took the job down. And
[Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo, Dep. Tr. at 178:11-17]. While Fiorillo
went on to explain what she meant by an evenly distributed workload, she does
not indicate anywhere that she conveyed this understanding to Kagdis. [Id. at
178:21-182:23].
5
they’re going to hire contractor employees, Deb.” [Id. at 231:10-18].6 While
Fiorillo appears to claim that David removed the job position specifically to
prevent her from applying, she offers two distinct reasons. First, she claims he
did so because her work hours and schedule did not conform to the job
requirements. [Id. at 220:25-221:3]. She elsewhere attributed the decision to her
belief that David generally disapproved of her modified work hours
accommodation, which she gleaned exclusively from her “years of working at
Sikorsky.” [Id. at 239:9-25]. Fiorillo never spoke to David about the position. [Id.
at 240:14-16]. Fiorillo does not offer any direct evidence tending to show why the
position was removed. She does not allege that she was told by any Defendant
or employee of any Defendant why the position was removed. The only evidence
she offers are the facts that the position was taken down before she applied, and
months later, it was filled by contract, rather than regular employees.7
Relatedly, Fiorillo asserts that David encouraged her to meet with members
of the Black Hawk and Naval Hawk groups to discuss a possible transfer to an
aircraft sales position, despite knowing that she was not interested in the
6
Fiorillo’s testimony regarding her conversation with the 53K employee was
inconsistent. She originally testified that the 53K employee told her that “Ari
[David] took the job down,” but immediately revised her statement, and testified
that he said, “they took the job down. And they’re going to hire contractor
employees, Deb.” [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 231:15-18].
Fiorillo repeated both versions of this conversation later in her deposition. [Id.
at 238:7-19].
7
Elsewhere, Fiorillo contends that she spoke with Robinson, and offered a third
theory for why she did not obtain the 53k position, that she “was denied the
position because [she] was female.” [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo
Dep. Tr. at 283:8-9, 284:6-15]. Nowhere does Fiorillo offer any basis for her
belief.
6
position. [Id. at 226:5-13, 17-25, 227:7-16]. When David approached her about
this opportunity, Fiorillo did not tell David she was not interested in the position,
nor did she explain how David knew she was not interested, stating only that,
“[e]arlier on he knew I loved [Research and Development] . . . . Everything was
different all the time. It was the thrill.” [Id. at 227:14-22]. Instead, she told David
that she would go talk with members of the other groups, and together, she and
they concluded that she would not be a good fit. [Id. at 228:1-12, 229:4-9]. It was
only after meeting with the members of the other groups that she informed David
she was not interested in joining either one, and she could not recall David’s
response, if any. [Id. at 229:13-18].8
In addition to workload concerns, Fiorillo contends that David and others
discriminated against her on the basis of her gender. [Id. at 273:7-11].
Specifically, Fiorillo cites Sikorsky’s failure to hire her as a supervisor. [Id. at
244:1-12]. However, Fiorillo never applied for any supervisory positions. [Id. at
244:24-25]. She claims, instead, that in 2006, David talked her out of applying for
a supervisory position by stating that the position was not for her, and asking her
if she really wanted to attend all of the necessary meetings and would be willing
8
Fiorillo testified about another job to which she unsuccessfully applied, in
UTC’s Research Center (the “UTRC”). [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo
Dep. Tr. at 234:7-10]. Fiorillo interviewed with the individual she was replacing,
but ultimately was not selected for the position. [Id. at 235:11-14]. She did not
know who else applied or whether anyone was hired for the position, but
believes that David became aware of her application through her direct
supervisor, Robinson, whom she told about it. [Id. at 235:2-7, 20-25]. However,
Fiorillo never told David about the application. [Id. at 235:18-22]. In addition,
she did not believe that David prevented her from obtaining the position, nor did
she believe that she lost out on it due to her disabilities. [Id. at 236:21-237:9].
Indeed, while she believed that her failure to obtain the 53K position was
“because of my disabilities[,] . . . [t]he UTRC, I don’t know what happened
there.” [Id. at 237:7-9].
7
to be on call throughout nights when necessary. [Id. at 245:25-246:9]. Fiorillo
claims that David’s statement was motivated by her gender, because at that time,
there were no female managers in her group. [Id. at 268:7-14]. However, she
equivocated on this point when she was asked about two female employees, one
of whom she “believed” was an executive, and another whom she described as
vice-president of her group, stating that she “owned all of us.” [Id. at 268:17269:7].
Fiorillo also contended that David talked down to her and other women in
meetings, by displaying an attitude that he did not take them seriously, and that
their opinions did not matter. [Id. at 274:12-21, 276:9-19]. As evidence, she cited
David’s reliance on the opinions of other male employees as a means of verifying
her conclusions. [Id. at 278:13-18]. Finally, Fiorillo asserted that she had not
been promoted since 1997 because of her gender. [Id. at 284:17-285:1]. However,
Fiorillo did not identify any basis for this belief.
Fiorillo claims that several Sikorsky employees, in addition to David,
through the conduct described above, created a hostile work environment. First,
she maintains that Defendant Lafferty harassed her by allegedly disclosing
private information Fiorillo transmitted to her. [Id. at 279:20-280:5]. Fiorillo
claims she sent Lafferty documents containing personal information, and the
documents were somehow returned to her with a fax line which stated, “new
engineering building third floor.” [Id. at 279:20-280:1]. Fiorillo could not recall
any other details regarding this alleged harassment, nor does she allege that the
8
fax showed that an unintended recipient saw the confidential information. [Id. at
280:15-19].9
As for Defendants Morris and Meisner, Fiorillo could not recall anything
they did to create a hostile work environment. [Id. at 280:20-281:15]. Indeed,
Fiorillo could not recall any communications she had with either Morris or
Meisner, aside from exchanging pleasantries. [Id. at 286:16-288:3]. Instead,
Fiorillo cites generally to Sikorsky’s job post system and her experience as a
female in its contracts and counsel group, which together, fostered a hostile work
environment. [Id. at 280:23-281:2].
B. Fiorillo’s Prior Accommodations from Sikorsky
During her time at Sikorsky, Fiorillo sought and received multiple
accommodations and leaves of absence in light of a series of medical problems.
[Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 16; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶ 16]. First, in 1995, Fiorillo took approximately 90 to 120 days off to
recover from depression, anxiety, and a panic disorder. [Dkt. #119, Defs.’ Rule
56(a)(1) Statement at ¶¶ 17-18; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 1718]. According to Fiorillo, Defendant Sikorsky had “no problem” with her taking
that time. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 19; Dkt. #123-1, Pl.’s Rule
56(a)(2) Statement at ¶ 19]. Then, in 2001, Fiorillo took a brief leave of absence to
treat chest pains and anxiety. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 20;
Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 20]. Several years later, in 2008,
9
Fiorillo’s testimony appears to imply that Lafferty gave the documents to some
other Sikorsky employee, who faxed them back to Fiorillo, thereby disclosing
the information she intended for Lafferty’s eyes only. However, Fiorillo offers
no facts to support her theory, in particular, she provides no evidence that
anyone other than Lafferty saw or sent her the documents.
9
Fiorillo underwent shoulder surgery and took medical leave. [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶ 21; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 21].
According to Fiorillo, Defendant David had no problem with her leave of absence
or additional time she took to undergo physical therapy. [Dkt. #119, Defs.’ Rule
56(a)(1) Statement at ¶ 22; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 22]. In
addition, Fiorillo requested, and Sikorsky provided, a special parking spot to
accommodate some of her physical issues. [Dkt. #119, Defs.’ Rule 56(a)(1)
Statement at ¶ 23; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 23]. Also, in
2010, Fiorillo sought and received a work-at-home accommodation, allowing her
to work remotely from home two days a week in order to care for her son. [Dkt.
#119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 24-27; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶¶ 24-27]. Both of Fiorillo’s supervisors, Robinson and David,
understood the reason for the accommodation, had no problem with it, and
approved it. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 24, 28-29; Dkt. #123-1,
Pl.’s Rule 56(a)(2) Statement at ¶¶ 24, 28-29]. Finally, at some point, Fiorillo
received a work hours accommodation, permitting her to work from 6:30 AM to
3:00 PM. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 240:1-5]. At the time
of her departure, Sikorsky was providing Fiorillo with the special parking spot
closer to her work area, the work-at-home accommodation permitting her to work
remotely from her home twice a week, and the work hours accommodation,
which, collectively, enabled her to perform her job duties through mid-July 2011,
when she suffered a nervous breakdown. See [Dkt. #119, Defs.’ Rule 56(a)(1)
10
Statement at ¶¶ 23-27; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 23-27; Dkt.
#123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 240:1-5].
C. Fiorillo’s Departure From Sikorsky and Termination
During the first half of 2011, Fiorillo felt that the amount of work in her
department had increased, causing her to feel overworked. [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶¶ 31-32; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶
31-32]. In early 2011, Fiorillo’s supervisor, Robinson, approached Defendant
David to request an additional employee, after receiving encouragement to do so
from a consensus of his direct reports. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement
at ¶¶ 33-34; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 33-34]. David took up
the request with his supervisor, but the supervisor did not approve it. [Dkt. #119,
Defs.’ Rule 56(a)(1) Statement at ¶¶ 35-36; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶¶ 35-36]. The reason his supervisor gave was that the company’s
budgets and resources were “tight” and the company “did not have the
resources to add an additional person to the research and development group.”
[Dkt. #123-1, Pl.’s Statement of Disputed Facts at ¶ 77; Dkt. #123-4, Ex. C to Pl.’s
Opp., David Dep. Tr. at 53:6-7, 14-19].
In mid-July 2011, Fiorillo took time off work. [Dkt. #119, Defs.’ Rule 56(a)(1)
Statement at ¶ 38; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 38]. During this
time away, Fiorillo claims she suffered a nervous breakdown. [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶ 39; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 39].
On July 25, 2011, Fiorillo obtained a note from her physician, Dr. Antonio
Scappaticci, which stated that “[r]estrictions should apply from [July 25, 2011]
11
until [August 1, 2011],” but that she “may return to work” on August 1, 2011.
[Dkt. #118-5, Ex. 5 to Defs.’ Mot. at 2]. Fiorillo contends that she later received
and sent to Defendant Sikorsky a second note from Dr. Scappaticci extending the
recommended leave of absence. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶
41; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 41]. This note was not included
in the record before the Court, and there is no indication that it contained a new
return to work date.
In August 2011, Fiorillo called Defendant Lafferty, a human resources client
manager at Defendant Sikorsky, to inform her that she was out sick. [Dkt. #119,
Defs.’ Rule 56(a)(1) Statement at ¶ 42; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at
¶ 42]. Lafferty told Fiorillo that she needed to file for short-term disability benefits
and that her benefits provider, Liberty, had not received the required paperwork
from her doctors. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 44-45; Dkt. #1231, Pl.’s Rule 56(a)(2) Statement at ¶¶ 44-45].
On August 16, 2011, Fiorillo called Defendant David to discuss her
absence. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 45; Dkt. #123-1, Pl.’s Rule
56(a)(2) Statement at ¶ 45]. During this conversation, David asked her if she was
cleared to return to work and Fiorillo told him that she was not. [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶ 46; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 46].
After that, Fiorillo contends that David yelled, “what is going on” at her, and
stated that he was unsure what he was going to do with her job. [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶¶ 47-48; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶
47-48; Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 82:17-23]. Fiorillo does
12
not allege that David raised his voice at her again during this conversation, or at
any other time. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 48; Dkt. #123-1, Pl.’s
Rule 56(a)(2) Statement at ¶ 48]. David also told Fiorillo that the fact that her
doctors were submitting paperwork in support of her short-term disability claim
did not mean that the claim would be approved by the third-party independent
benefits administrator. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 49; Dkt.
#123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 49]. Following this call, Fiorillo contends
that she was afraid to return to work because she thought David would judge her
negatively as a result of her depression, and he did not believe that she was
actually ill. See [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 82:9-16, 84:1623]. Fiorillo further testified that David’s reaction reminded her of being
dismissed by her stepfather as whining, complaining. [Id. at 88:16-20].10
On September 13, 2011, Defendant Lafferty wrote Fiorillo a letter requesting
that Fiorillo “provide a return to work date as soon as possible or otherwise
advise as to the status of [her] absence.” [Dkt. #119, Defs.’ Rule 56(a)(1)
Statement at ¶ 51; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 51; Dkt. #118-6,
Ex. 6 to Defs.’ Mot. at 2]. The letter also stated that Fiorillo had “not reported to
work since July 23, 2011” and had “not provided any return to work date.” [Dkt.
#118-6, Ex. 6 to Defs.’ Mot. at 2]. By this point, Fiorillo had been away from work
for more than one-and-a-half months.
10
Sometime after this call, in September 2011, Fiorillo testified that she
exchanged emails with David, in which David inquired about her return date
and Fiorillo explained that her doctors had not yet cleared her to return. In
response, David asked her who approved the sick days she had taken, and
Fiorillo never responded to his question. [Dkt. #123-3, Ex. A to Pl.’s Opp.,
Fiorillo Dep. Tr. at 70:5-20, 202:20-203:3]. These emails are not in the record
before the Court.
13
On September 28, 2011, just over two weeks after she sent her first letter to
Fiorillo, Defendant Lafferty sent a second letter. [Dkt. #119, Defs.’ Rule 56(a)(1)
Statement at ¶ 53; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 53]. The letter
began by stating that the company’s disability carrier had denied her claim for
benefits. [Dkt. #118-7, Ex. 7 to Defs.’ Mot. at 2]. The letter further stated:
Please let us know when you intend to return to work. If you require
an accommodation to facilitate your return, or if you plan to apply for
FMLA leave, please let us know and provide supporting medical
documentation so we may evaluate your request. If you do not do so
and you fail to return to work by October 10, 2011 then you will be
removed from company payroll and we will consider you to have
resigned your employment.
[Id.].
After receiving this letter, Fiorillo again called Defendant Lafferty. [Dkt.
#119, Defs.’ Rule 56(a)(1) Statement at ¶ 55; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶ 55]. Fiorillo told Lafferty she was not cleared to return to work,
was appealing the disability insurance carrier’s denial of her short-term disability
benefits, and had not resigned her position. [Dkt. #119, Defs.’ Rule 56(a)(1)
Statement at ¶ 56; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 56; Dkt. #123-3,
Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 107:9-12].
Later that month, Defendant Sikorsky received Fiorillo’s FMLA paperwork,
in which she requested a leave for “undetermined days, from [July 23, 2011]
through undetermined.” [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 57; Dkt.
#123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 57; Dkt. #118-10, Ex. 10 to Defs.’ Mot. at
2]. The accompanying health care provider form was prepared by Dr. Robert
Salinger, a licensed marriage and family therapist, on October 3, 2011. [Dkt. #118-
14
10, Ex. 10 to Defs.’ Mot. at SIK0227]. The form stated that Dr. Salinger had been
counseling Fiorillo since May 12, 2011, and since that time, he had been providing
Fiorillo individual therapy sessions twice a week, for 50 minutes. [Id. at SIK0225].
Dr. Salinger opined that Fiorillo was suffering from post-traumatic stress disorder
(“PTSD”), that increasing job pressures triggered the onset of severe symptoms,
and as a result, she was unable to perform simple tasks without being flooded by
anxiety. [Id.]. Dr. Salinger stated that Fiorillo was unable to work at all, and could
not offer any return date. [Id. at SIK0225-26]. He wrote that Fiorillo told him that
“over a period of time, she had asked her supervisor [at Sikorsky] for help
because she felt overwhelmed with the work load” but “[h]er requests were
dismissed as unimportant, and she was informed that everyone was under
stress.” [Id. at SIK0226-27]. Finally, according to Salinger, after leaving the
company on July 23, the “problems she [was] having with both work and the
disability insurance company” caused Fiorillo’s PTSD symptoms to worsen. [Id.
at SIK0227].
On October 28, 2011, Defendant Lafferty sent Fiorillo a third letter. [Dkt.
#119, Defs.’ Rule 56(a)(1) Statement at ¶ 58; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶ 58; Dkt. #118-11, Ex. 11 to Defs.’ Mot. at 2]. The letter informed
Fiorillo that her FMLA leave request had been approved, and would expire on
November 12, 2011. [Dkt. #118-11, Ex. 11 to Defs.’ Mot. at 2]. The letter then
asked Fiorillo if she “intend[ed] to return to work in advance of November 12” and
informed her that if she did not return to work by November 14, 2011, her
employment would be terminated. [Id.]. Fiorillo never provided Lafferty with an
15
approximate return to work date. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶
59; Dkt. #123-1, Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 59]. However,
Fiorillo did contact Lafferty and reiterated that her doctors had not cleared her to
return to work and she was not resigning her position. [Dkt. #123-3, Ex. A to Pl.’s
Opp., Fiorillo Dep. Tr. at 113:16-114:4].
In addition to Lafferty, in October 2011, Carol Kagdis (“Kagdis”), an
employee in Sikorsky’s medical department, contacted Fiorillo regarding her
return to work and need for a reasonable accommodation. [Dkt. #119, Defs.’ Rule
56(a)(1) Statement at ¶ 60; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 60].
Fiorillo informed her that she did not know when she would be returning. [Dkt.
#119, Defs.’ Rule 56(a)(1) Statement at ¶ 61; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶ 61].
During this conversation, Ms. Kagdis asked Fiorillo about any
accommodations she might need in order to return. [Dkt. #118-2. Ex. 2 to Defs.’
Mot., Fiorillo Dep. Tr. at 103:13-16]. With regard to completing her therapy and
adjusting her medications, Fiorillo informed Kagdis that she would need an
undetermined amount of time. See [id. at 105:1-3, 174:7-10].11 Specifically,
Fiorillo informed her that she “would need more people” and the time “to finish
[her] therapy, and . . . to adjust [her] medications.” [Id. at 103:16-18]. By “more
11
Fiorillo claims that she expected the Defendants to keep her job open for six
months, as they had back in 1995. See [Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶ 64 (citing Dkt. #118-2. Ex. 2 to Defs.’ Mot., Fiorillo Dep. Tr. at
207:9-13)]. However, Fiorillo testified that in 1995, she was out of work only
“[90] to 120 days,” and admitted that she never expressed this expectation to
any of the Defendants. [Dkt. #118-2. Ex. 2 to Defs.’ Mot., Fiorillo Dep. Tr. at
52:10-14, 207:19-22].
16
people,” Fiorillo meant more people to help her with her job responsibilities, so
that the work environment would feel less stressful to her. [Id. at 105:11-21; Dkt.
#119, Defs.’ Rule 56(a)(1) Statement at ¶ 63; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶ 63]. Hand-in-hand with her request for “more team people to help
with the work load” were “an evenly distributed work load and a less stressful
work environment.” [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo, Dep. Tr. at 178:1117]. Fiorillo also told Kagdis that she would contact her after her doctor’s
appointment, but she never did. [Id. at 183:10-25].
Aside from this conversation initiated by Ms. Kagdis, Fiorillo had no
discussions with anyone at Sikorsky regarding accommodations which would
enable her to return to work, nor did she ever provide an estimated return date.
[Id. at 104:14-18]. While on leave, Fiorillo did ask Lafferty to hire additional
people, but she did not indicate that this request was a request for a reasonable
accommodation. See [Dkt. #123-4, Ex. B to Pl.’s Opp., Lafferty Dep. Tr. at 45:1020 52:7-11.12 Aside for these two conversations, Fiorillo did not initiate or
otherwise have any discussions with Sikorsky about reasonable
accommodations, and she has not identified any other accommodations which, if
implemented, would have allowed her to perform her essential job functions at
any time after July 2011. Moreover, in early October 2011, Sikorsky knew that no
reasonable accommodation would enable Fiorillo to return to work, because on
12
Sometime after this conversation, Lafferty spoke with David about hiring
another person, but David told her that he felt Fiorillo’s job could be handled by
one person. [Id. at 46:5-11]. Just months earlier, David had spoken with his
supervisor about hiring more people in Fiorillo’s group, but his supervisor said
that the budget would not allow it. [Dkt. #123-1, Pl.’s Statement of Disputed
Facts at ¶ 77; Dkt. #123-4, Ex. C to Pl.’s Opp., David Dep. Tr. at 53:6-7, 14-19].
17
October 3, 2011, Fiorillo’s licensed therapist, Dr. Robert Salinger, completed a
form in which he opined unequivocally that Fiorillo was unable to perform any
work. [Dkt. #118-10, Ex. 10 to Defs.’ Mot. at SIK0225-26].
Fiorillo contends that the letters she received from and the telephone
conversations she had with employees of Sikorsky during her leave constituted
harassment and set back her recovery from her panic attack. [Dkt. #123-3, Ex. A
to Pl.’s Opp., Fiorillo, Dep. Tr. at 173:8-174:5, 206:3-6, 242:14-25]. However, she
does not claim that she or her physicians ever informed anyone at Sikorsky that
they should not contact her. In addition, when asked why she found these letters
and phone calls harassing, Fiorillo stated that, in addition to the call in which
David yelled at her, which itself was harassing, she considered the number of
communications and her doctors’ failure to timely provide documentation to both
Liberty, the disability insurance carrier, and Sikorsky to constitute harassment.
[Id. at 202:8-12, 203:4-8, 20-25, 204:23-206:12].
Fiorillo was placed on FMLA leave, and on November 14, 2011, upon the
expiration of her leave, and while Dr. Salinger’s letter opining that Fiorillo was
unable to perform any work remained extant, Sikorsky terminated her
employment. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 69; Dkt. #123-1, Pl.’s
Rule 56(a)(2) Statement at ¶ 69].
D. Fiorillo’s Social Security Disability Benefits Application
Following her termination, Fiorillo applied for Social Security disability
benefits. On November 26, 2013, she testified before an ALJ at a hearing in
support of her application. See [Dkt. #118-15, Ex. 15 to Defs.’ Mot.]. At the
18
hearing, Fiorillo testified that she stopped working at Sikorsky in July 2011
following a nervous breakdown, she tried to look for work in a non-stressful
environment, she was unable to hold any sort of job because she was unable to
sit or stand for long periods of time, she was easily confused, she required
significant amounts of counseling, and suffered from several hand and elbow
ailments. See [id. at 3-4]. Her physical ailments limited her ability to type and
necessitated frequent and prolonged breaks. [Id. at 3].
On December 10, 2013, the ALJ issued his decision and found that Fiorillo
had been disabled since July 19, 2011. [Dkt. #118-13, Ex. 13 to Def’s Mot. at 8]. In
reaching this decision, he noted that Fiorillo contended she was “unable to work
in any capacity due to a combination of symptoms caused by her multiple
physical and mental impairments.” [Id. at 11]. After reviewing the medical
evidence and her testimony, the ALJ found that her physical and mental
symptoms “would cause her to be off task to a degree that would not allow her to
perform even simple work activities on a sustained basis.” [Id.]. This finding is
consistent with the opinion rendered by Dr. Salinger to Sikorsky, which had not
been superseded as of the date Fiorillo’s FMLA expired and her employment was
terminated.
II.
Legal Standard
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
19
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted). In addition, determinations of the weight to accord
evidence or assessments of the credibility of witnesses are improper on a motion
for summary judgment, as such are within the sole province of the jury. Hayes v.
New York City Dep’t of Corr., 84 F. 3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03-cv481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, 817 F. Supp. 2d 28, 37 (D.
Conn 2011). Where there is no evidence upon which a jury could properly
proceed to find a verdict for the party producing it and upon whom the onus of
20
proof is imposed, such as where the evidence offered consists of conclusory
assertions without further support in the record, summary judgment may lie.
Fincher v. Depository Trust and Clearance Co., 604 F.3d 712, 727 (2d Cir. 2010).
III.
Analysis
A. Defendants UTC and Sikorsky are Entitled to Summary Judgment on
Count I of the Complaint Because Fiorillo Fails to Set Forth a Prima
Facie Showing of a Failure to Accommodate
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).
Claims alleging disability discrimination are assessed under the burden-shifting
analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this scheme, “[a] plaintiff must establish a prima facie case; the employer
must offer through the introduction of admissible evidence a legitimate nondiscriminatory reason for the discharge; and the plaintiff must then produce
evidence and carry the burden of persuasion that the proffered reason is a
pretext.” Id.
“The statute defines ‘discriminate’ to include ‘not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability.’” Felix v. N.Y. City Transit Auth., 324 F.3d
102, 104 (2d Cir. 2003) (quoting 42 U.S.C. § 12112(b)(5)(A)). In addition, a
“qualified individual” under the ADA is one “who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C. § 12111(8).
21
To set forth a prima facie case of disability discrimination through a failure
to accommodate, it must be shown that:
(1) [P]laintiff is a person with a disability under the meaning of the
ADA; (2) an employer covered by the statute had notice of h[er]
disability; (3) with reasonable accommodation, plaintiff could
perform the essential functions of the job at issue; and (4) the
employer has refused to make such accommodations
McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir.
2009) (citations and quotations omitted).
For the purposes of this motion, the Defendants do not contest the first two
elements of Fiorillo’s prima facie showing. See [Dkt. #118, Defs.’ Memo. at 13 n.
10]. Accordingly, the issues before the Court on this motion are (i) whether
Plaintiff Fiorillo could have performed the essential functions of her job with a
reasonable accommodation and (ii) whether UTC and Sikorsky refused to make
such accommodations. As explained below, the answer to both of those
questions is no.
1.
Fiorillo Was Not Able to Perform the Essential Functions of
Her Job.
The Second Circuit has held that the plaintiff bears the burden of
production and persuasion on the issue of whether she can perform the essential
functions of the job in question, with or without reasonable accommodation.
Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 137–38 (2d Cir.1995) (“A
plaintiff cannot be considered ‘otherwise qualified’ unless she is able, with or
without assistance, to perform the essential functions of the job in question. It
follows that the plaintiff bears the burden of proving either that she can meet the
requirements of the job without assistance, or that an accommodation exists that
22
permits her to perform the job's essential functions.”). First, on October 3, 2011,
Dr. Salinger unequivocally opined that Fiorillo was unable to perform any work.
He did not withdraw, qualify or otherwise change that opinion at any time prior to
her termination. [Dkt. #118-10, Ex. 10 to Defs.’ Mot. at SIK0225-26]. Indeed,
nowhere in his opinion does Dr. Salinger suggest that either of the
accommodations Fiorillo proposed would have permitted her to perform her job’s
essential functions. Thus, Fiorillo had informed Sikorsky that she was unable to
perform her job with or without accommodations on the date of her termination.
Second, Fiorillo has not offered any evidence that as of the date of her
termination, she was able to perform her essential job functions even with her
proposed accommodations. Instead, the record from July through November
2011 contains repeated phone calls in which Fiorillo informed Sikorsky that she
remained unable to return to work, that she had not been cleared by her doctors,
and that she would need an indeterminate amount of time to undergo therapy and
adjust her medications. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 42, 44-46,
55-56; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 42, 44-46, 55-56; Dkt. #123-3,
Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 113:16-114:4]. These findings are wholly
consistent with that reached by the ALJ who considered Fiorillo’s application for
disability benefits and found that Fiorillo had been disabled since July 19, 2011.
[Dkt. #118-13, Ex. 13 to Def’s Mot. at 8].
2.
Fiorillo’s Request for An Undetermined Leave Of Absence Was
Not A Reasonable Accommodation.
As for assessing a proposed reasonable accommodation, the Second
Circuit has fastened a two-step test: “First, the plaintiff bears the burden of
23
proving . . . that an accommodation exists that permits her to perform the job’s
essential functions . . . . If the plaintiff meets that burden, the analysis shifts to
the question [of] whether the proposed accommodation is reasonable; on this
[second] 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) (citations and
quotations omitted). Under the first part of this test, a plaintiff discharges its
burden by “identifying an accommodation, the costs of which, facially, do not
exceed its benefits.” Tillman v. Verizon New York, Inc., ---F. Supp. 3d ----, 2015
WL 4603372, at *21 (E.D.N.Y. Jul. 30, 2015) (quoting Borkowski v. Valley Cent.
Sch. Dist., 63 F.3d 131, 139 (2d Cir. 1995)). Reasonable accommodations may
include “modification of job duties and schedules, alteration of the facilities in
which a job is performed, acquisition of devices to assist the performance of job
duties, and, under certain circumstances, reassignment to a vacant position.”
McBride, 583 F.3d at 97 (citations and quotations omitted).
Fiorillo sought an indeterminate leave of absence. “The duty to make
reasonable accommodations does not, of course, require an employer to hold an
injured employee’s position open indefinitely while the employee attempts to
recover, nor does it force an employer to investigate every aspect of an
employee’s condition before terminating him based on his inability to work.”
Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d Cir. 2000). The duty to
adopt reasonable accommodations also “‘does not require a lowering of
standards . . . nor that the employer make fundamental or substantial
modifications in order to eliminate the disadvantages flowing from the
24
disability.’” Gialanza v. Time Warner Cable, No. 07-cv-6050, 2009 WL 857502, at *9
(W.D.N.Y. Mar. 30, 2009) (quoting Fink v. New York City Dep’t of Personnel, 53
F.3d 565, 567 (2d Cir. 1995)) (dismissing failure to accommodate claim under
ADA)).
After leaving work at the end of July, in August 2011, Fiorillo had two
separate phone conversations with Defendants Lafferty and David regarding her
absence, and at no time during these calls did she provide a return to work date.
[Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 42, 44-49; Dkt. #123-1, Pl.’s Rule
56(a)(2) Statement at ¶¶ 42, 44-49]. On September 13, 2011, Defendant Lafferty
wrote Fiorillo a letter requesting that Fiorillo “provide a return to work date as
soon as possible or otherwise advise as the status of [her] absence.” [Dkt. #119,
Defs.’ Rule 56(a)(1) Statement at ¶ 51; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at
¶ 51; Dkt. #118-6, Ex. 6 to Defs.’ Mot. at 2]. The letter also stated that Fiorillo had
“not reported to work since July 23, 2011” and had “not provided any return to
work date.” [Dkt. #118-6, Ex. 6 to Defs.’ Mot. at 2]. By this point, Fiorillo had been
away from work for more than one-and-a-half months. Fiorillo did not respond to
this letter.
On September 28, 2011, Lafferty sent a second letter, in which she asked
Fiorillo to identify any reasonable accommodation she would need to return to
work and warned of the consequences of her continued silence:
Please let us know when you intend to return to work. If you require
an accommodation to facilitate your return, or if you plan to apply for
FMLA leave, please let us know and provide supporting medical
documentation so we may evaluate your request. If you do not do so
and you fail to return to work by October 10, 2011 then you will be
25
removed from company payroll and we will consider you to have
resigned your employment.
[Dkt. #118-7, Ex. 7 to Defs.’ Mot. at 2 (emphasis added)].
Fiorillo was thus on notice of both the Defendants’ requests for a return
date and that her failure to provide one or to return by October 10, 2011 would
result in her removal from the payroll. After receiving this letter, Fiorillo once
again called Defendant Lafferty, and again, despite receiving multiple written
requests, she did not inform Lafferty of her return date, stating only that she was
not cleared to return to work. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 56;
Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 56; Dkt. #123-3, Ex. A to Pl.’s Opp.,
Fiorillo Dep. Tr. at 107:9-12]. Indeed, even the FMLA paperwork Fiorillo submitted
requested leave for “undetermined days, from [July 23, 2011] through
undetermined.” [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 57; Dkt. #123-1,
Pl.’s Rule 56(a)(2) Statement at ¶ 57; Dkt. #118-10, Ex. 10 to Defs.’ Mot. at
SIK0222]. Finally, Defendant Lafferty sent Fiorillo a third letter, stating that her
FMLA leave would expire on November 12, 2011, asking if she “intend[ed] to
return to work in advance of November 12” and informing her that if she did not,
her employment would be terminated. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement
at ¶ 58; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 58; Dkt. #118-11, Ex. 11 to
Defs.’ Mot. at 2].
Fiorillo responds by stating, inexplicably, that she had expected to have up
to six months to recover, like she did back in 1995, she was denied the use of
sick time she had accrued during her employment, she was consulting with
doctors who were unable to provide her with a return date, and her post-leave
26
telephone calls with David, Lafferty, and Kagdis, and the letters she received from
Lafferty, set back her recovery and left her scared to return to work. See [Dkt.
#123, Pl.’s Opp. at 15, 18; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 56, 64;
Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶ 56; Dkt. #123-3, Ex. A to Pl.’s Opp.,
Fiorillo, Dep. Tr. at 82:9-16, 84:16-23, 173:8-174:5, 206:3-6, 242:14-25]. None of
these arguments succeed, since they do not indicate that Fiorillo provided the
Defendants with a “request[] for a finite amount of extended leave time.” Vangas
v. Montefiore Med. Ctr., 6 F. Supp. 3d 400, 413 (S.D.N.Y. 2014).
As for her expectation that she would be given six months to recover,
Fiorillo never raised this belief with anyone at UTC or Sikorsky. See [Dkt. #118-2,
Ex. 2 to Defs.’ Mot., Fiorillo Dep. Tr. at 207:19-22]. Moreover, she repeatedly
testified that she was out of work for up to 120 days, or four months, in 1995. [Id.
at 52:10-14, 207:9-13].13 Given that she left Sikorsky in mid-July and was
terminated on November 14, 2011, she received approximately the same amount
of time to recover as she did in 1995.
Similarly, Fiorillo did not tell the Employer Defendants that she expected to
use her accrued sick days to extend her employment beyond the end date
provided by Sikorsky. As Fiorillo testified, the decision whether or not to permit
13
Fiorillo once referred to the period of time she was out in 1995 as constituting
six months, but quickly revised it to the 120 days she otherwise testified as
constituting the high end of the range of days she was out of work during that
time. See [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo, Dep. Tr. at 207:9-13].
Otherwise, Fiorillo claims she was out of work for six months in 2009, when
she was recovering from rotator cuff surgery. [Id. at 51:15-24]. Given the
fundamentally different nature of the injuries from which she was recovering in
2009, any expectation that she would receive the same amount of time off for
her condition in 2011, without any discussion with her employer, was
unreasonable.
27
her to use these days rested with Defendant Liberty, not the Employer
Defendants, and Fiorillo informed her employer that Defendant Liberty did not
agree that she could do so. [Id. at 52:20-22, 115:5-23]. Indeed, the only
communication Fiorillo could recall with anyone at Sikorsky regarding her use of
sick days to extend her return date was the September 28, 2011 letter she
received from Defendant Lafferty, which merely stated that Liberty had denied her
claim for short-term disability benefits. See [Dkt. #118-7, Ex. 7 to Defs.’ Mot. at 2;
Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 207:23-208:24]. Moreover, that
the Employer Defendants did not independently decide to hold her position open
until the running of all of her accrued sick days does not constitute a denial of a
reasonable accommodation, since Fiorillo gave the Defendants “no suggestion
that [she] might ever be able to return to work.” Gallagher v. Town of Fairfield,
No. 3:10-cv-1270 (JAM), 2015 WL 3453342, at *10 (D. Conn. May 29, 2015)
(granting summary judgment to defendants and rejecting plaintiff’s assertion that
defendants should have held her position open “at least for the duration of her
accrued sick leave”).
Next, Fiorillo’s repeated statements to the Employer Defendants that her
doctors were still determining when she could return are not sufficient to render
her requested accommodation reasonable because these statements merely
indicated “that she was not able to return to work on her scheduled return date,
and did not indicate how long of an extension of leave she would require.”
Vangas, 6 F. Supp. 3d at 413 (concluding that “requests for more time to follow
28
up with doctors” absent a finite return date “may only fairly be characterized as
requests for indefinite leave”).14
Finally, Fiorillo’s reliance on the post-leave communications she had with
the Defendants is misplaced. Even if these communications interfered with her
treatment efforts and made her afraid to return to work, this is not sufficient to
transform an otherwise unreasonable accommodation—an indefinite period of
leave—into a reasonable one. As to the letters she received from the Employer
Defendants requesting that she provide them with a return to work date and
identify any necessary accommodations, Fiorillo never offered a return date, and
even if she had requested that the Defendants cease contacting her—which she
did not—such a request ultimately amounts to one for an indefinite period of both
non-contact and leave. Moreover, to the extent that Defendant David’s phone call
caused Fiorillo to fear returning to work, it would seem that no amount of leave
would be sufficient to accommodate her, since she would still be working for
David upon her return.
As Fiorillo has not set forth any evidence showing that the amount of time
away from work she sought was anything other than an indefinite period of leave,
14
The Court notes that nearly a month after Fiorillo was terminated, one of her
doctors, Dr. Scappaticci, determined that she was able to work full or part-time,
but only in a non-stressful environment. See [Dkt. #118-12, Ex. 12 to Defs.’ Mot.
at 2]. Fiorillo never provided the Defendants with this note, nor is there any
indication that the doctor reached this conclusion prior to her termination date.
See [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo, Dep. Tr. at 131:8-18]. In addition,
as the Employer Defendants point out, even if Fiorillo had submitted the note
prior to her termination and requested a non-stressful work environment, such
an accommodation would not be reasonable under the ADA. See Potter v.
Xerox Corp., 88 F. Supp. 2d 109, 114 (W.D.N.Y. 2000) (noting that no employer
is obligated to provide an employee “with a completely stress-free
environment”).
29
her requested accommodation was not reasonable. See Mitchell v.
Washingtonville Cent. School Dist., 190 F.3d 1, 9 (2d Cir. 1999) (“The ADA does
not require an employer to accommodate an employee who suffers a prolonged
illness by allowing him an indefinite leave of absence.”).
3.
Fiorillo’s Request That Sikorsky Hire More Staff And Reassign
Some Of Her Job Functions To Other Employees Was Not a
Reasonable Accommodation
The second accommodation Fiorillo requested, that Sikorsky hire or assign
more employees to help with her job, was also unreasonable.
A “[r]easonable accommodation does not mean elimination of any of the
job’s essential functions.” Shannon v. New York City Transit Auth., 332 F.3d 95,
104 (2d Cir. 2003) (quoting Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)).
Courts across the country and in this Circuit have held that, while restructuring
an existing job may be a reasonable accommodation, an employer is not
obligated to hire additional employees or have multiple employees perform the
work normally performed by a single employee in order to satisfy its obligations
under the ADA. See Stevens v. Rite Aid Corp., No. 6:13-cv-783, 2015 WL 5602949,
at *13 (N.D.N.Y. Sept. 23, 2015) (finding that a request that the company hire a
nurse to perform immunizations for the plaintiff “does not constitute a reasonable
accommodation within the meaning of the ADA”) (citing cases); Hunt-Watts v.
Nassau Health Care Corp., 43 F. Supp. 3d 119, 134 (E.D.N.Y. 2014) (holding
plaintiff “fail[ed] to establish a prima facie case that a reasonable accommodation
exists” where she asserted that she could perform her essential job functions if
the company provided her with a nurse to assist in performing her duties or had
30
other podiatrists perform operations and surgeries because her request
“amount[ed] to having other employees do her job for her, and would result in
Defendant having to employ two professionals to perform the job of one
podiatrist”). This is, in part, because “[a]n employer . . . is not required to
reallocate essential functions” of an employee’s job. 29 C.F.R. Pt 1630, App.
1630.2(o); see also Desmond v. Yale-New Haven Hosp., Inc., 738 F. Supp. 2d 331,
348 (D. Conn. 2010).
In addition, the record indicates that Fiorillo was far from the only
employee to have suggested that management hire more people. In early 2011,
just a few months before Fiorillo went out on leave, Robinson approached
Defendant David to request an additional employee, in response to numerous
requests from other Sikorsky employees. [Dkt. #119, Defs.’ Rule 56(a)(1)
Statement at ¶¶ 33-34; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 33-34].
David took up the request with his supervisor, and David’s supervisor declined to
hire additional employees, citing a “tight” budget which did not permit for hiring
“an additional person to the research and development group.” [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶¶ 35-36; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶
35-36; Dkt. #123-1, Pl.’s Statement of Disputed Facts at ¶ 77; Dkt. #123-4, Ex. C to
Pl.’s Opp., David Dep. Tr. at 53:6-7, 14-19]. Thus, by the time Fiorillo requested
this accommodation in the fall of 2011, the Defendants had already considered it
and determined that it was financially infeasible, and Fiorillo offers no facts to
refute this determination. Under these circumstances, Sikorsky has established
that hiring additional employees would have posed an undue hardship. See, e.g.,
31
Daniels v. Murphy, No. 3:11-cv-00286 (SRU), 2014 WL 3547235, at *11 (D. Conn.
Jul. 17, 2014) (finding plaintiff’s request for an orthotic imposed an undue
hardship in light of the factors articulated in 42 U.S.C. § 12111(10) and where
plaintiff failed to offer “any argument or evidence” to rebut the defendants’
claim).
Even if Fiorillo’s proposed accommodation could be construed as seeking
that some of her workload be taken up by other Sikorsky employees, her request
remains unreasonable. See Stevens, 2015 WL 5602949, at *13 (“[R]educing
workload is not a reasonable accommodation.”) (citing and quoting Floyd v. Lee,
85 F. Supp. 3d 482, 510 (D.D.C. 2015)); see also Lowry v. Eastman Kodak Co., 14
F. App’x 27, 30 (2d Cir. Jun. 13, 2001) (finding plaintiff failed to satisfy the third
prong of prima facie case where he sought employment in a position “with a
reduced workload”). Nowhere does Fiorillo limit her work reassignment request
to nonessential aspects of her job. She simply asks that a portion of the work
assigned to her be reassigned to her already overworked colleagues. See, e.g.,
EEOC v. Amego, Inc., 110 F.3d 135, 148 (1st Cir. 1997) (affirming holding of
district court that it was an undue hardship for an employer to relieve an
employee of job duties the employee was unable to perform due to a disability
where the employer had no one else to perform them).
Relatedly, Fiorillo never told anyone at Sikorsky that she believed her
workload was uneven relative to her colleagues. At most, she mentioned “an
evenly distributed work load” as one of several accommodations she would need
in order to return, in conjunction with “more team people to help with the work
32
load” and a “less stressful work load environment.” [Dkt. #123-3, Ex. A to Pl.’s
Opp., Fiorillo, Dep. Tr. at 178:11-17]. As noted above, the record shows that
Fiorillo’s coworkers were chafing under their own workload. Moreover, since in
addition to an evenly distributed workload Fiorillo requested additional,
unreasonable, accommodations and stated that she would need all of them in
order to return and perform her essential job functions, any failure to consider
redistributing some of Fiorillo’s work does not constitute the denial of a
reasonable accommodation. See Thorner-Green v. New York City Dep’t of Corrs.,
207 F. Supp. 2d 11, 14 (E.D.N.Y. 2002) (granting summary judgment to defendant
where plaintiff received accommodation she requested and evidence
“demonstrates that plaintiff could not perform the essential functions of her job,
even with reasonable accommodation”); Turowski v. Triarc Cos., Inc., 761 F.
Supp. 2d 107, 113 (S.D.N.Y. 2011) (granting defendants’ motions for summary
judgment after finding “[d]efendants provided reasonable accommodations to
[plaintiff]” and “that no reasonable juror could find that [plaintiff] could perform
the essential functions of his positions with or without accommodation”).
Here, Sikorsky had reasonably accommodated Fiorillo’s disability by giving
her a special parking spot close to her work area, allowing her to work at home
twice a week, and changing her work hours, yet Fiorillo was unable to perform
her job duties beginning in mid-July 2011 and continuing through the date of her
termination. Sikorsky has established that Fiorillo’s request for reassignment of
her duties to other employees was not reasonable.
33
4.
Fiorillo’s Charge That Sikorsky Did Not Engage in the
Interactive Process To Identify A Reasonable Accommodation
Is Belied By the Evidence.
Finally, Fiorillo contends that UTC and Sikorsky failed to participate in the
mandatory “interactive process” governing reasonable accommodations. [Dkt.
#123. Pl.’s Opp. at 15]. This is simply not true. “The ADA envisions an
‘interactive process’ by which employers and employees work together to assess
whether an employee’s disability can be reasonably accommodated.” Jackan,
205 F.3d at 566. “To satisfy its ADA obligations in this regard, an employer must
first identify the full range of alternative positions for which the individual
satisfies the employer’s legitimate, nondiscriminatory prerequisites, and then
determine whether the employee’s own knowledge, skills, and abilities would
enable her to perform essential functions of those alternative positions, with or
without reasonable accommodation.” Felix v. New York City Transit Auth., 154 F.
Supp. 2d at 640, 658 (S.D.N.Y. 2001), aff’d, 324 F.3d 102 (2d Cir. 2003) (citations
and quotations omitted). However, “the ADA imposes liability for . . .
discriminatory refusal to undertake a feasible accommodation, not mere refusal
to explore possible accommodations where, in the end, no accommodation was
possible.” McBride, 583 F.3d at 100 (emphasis added). Thus, “an employer’s
failure to engage in a sufficient interactive process does not form the basis of a
claim under the ADA and evidence thereof does not allow a plaintiff to avoid
summary judgment unless she also establishes that, at least with the aid of some
identified accommodation, she was qualified for the position at issue.” Id. at 101;
see also Hunt-Watts, 43 F. Supp. 3d at 135 (“There is consensus among the
34
circuit courts that, if no reasonable accommodation is available, an employer is
not required to engage in a good-faith interactive process . . . . [F]ailure to engage
in the interactive process, standing by itself, does not entitle a plaintiff to
recovery under the ADA.”) (citing McBride, 583 F.3d at 100-101). Fiorillo’s
interactive process claim fails for at least three reasons.
First, as discussed above, Fiorillo’s therapist unequivocally opined that
she was unable to perform any work on October 3, 2011, and did not change his
conclusion prior to Fiorillo’s termination. [Dkt. #118-1510, Ex. 10 to Defs.’ Mot. at
SIK0225-26]. Second, Fiorillo has failed to identify a reasonable accommodation
which was available at the time she was terminated and with which the
Defendants did not provide her. See supra at 23-33.
Third, the record indicates that the Defendants did attempt to engage
Fiorillo in an interactive process to identify reasonable accommodations on two
occasions prior to terminating her and had already demonstrated their
willingness to accommodate her by providing her with a host of accommodations
to assist with her job. Further, in response to several employees’ requests,
including Fiorillo’s, to hire additional employees, David spoke with his supervisor
about doing so but was told that the budget would not permit it. [Dkt. #123-1,
Pl.’s Statement of Disputed Facts at ¶ 77; Dkt. #123-4, Ex. C to Pl.’s Opp., David
Dep. Tr. at 53:6-7, 14-19]. Finally, it was Fiorillo who had agreed to follow up with
Sikorsky after the final discussion of accommodations and who failed to do so.
After leaving work in mid-July 2011, Fiorillo communicated with several
employees of the Defendants, including Lafferty, David, and Kagdis. Despite
35
receiving three letters from Lafferty and speaking with her multiple times, Fiorillo
merely mentioned to Lafferty her desire that additional employees be hired to
help with her job duties. [Dkt. #123-4, Ex. B to Pl.’s Opp., Lafferty Dep. Tr. at
45:10-20]. Lafferty followed up on the request, contacting Defendant David and
asking him if he could hire an additional person, but David, aware of his
supervisor’s earlier determination that he could not hire more people, informed
Lafferty that Fiorillo’s job could be handled by one person. [Id. at 46:5-11].
Fiorillo also spoke with David while on leave, and did not raise any
accommodations. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 45-49; Dkt.
#123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 45-49]. It was not until October 2011,
three months into her leave, when Fiorillo responded to Sikorsky’s repeated
requests for her to discuss reasonable accommodations which would enable her
to return to work. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo, Dep. Tr. at 103:13-16].
In her discussion with Kagdis, the two accommodations she identified were not
reasonable, and she agreed to contact Kagdis after her doctor’s appointment, but
she never did. [Id. at 183:10-25]. This last fact alone dooms Fiorillo’s interactive
process claim. See Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 F. App’x 943,
946 (2d Cir. 2008) (“An employee who is responsible for the breakdown of that
interactive process may not recover for a failure to accommodate.”).
In light of these facts, Fiorillo’s interactive process claim fails, and her
failure to identify any reasonable accommodation which would have permitted
36
her to perform the essential functions of her job entitles the Employer Defendants
to summary judgment on her ADA failure to accommodate claim.15
B. Fiorillo Fails to Offer Facts Sufficient to Support Her Hostile Work
Environment Claim
In addition to refusing to provide her with a reasonable accommodation,
Fiorillo contends that the Employer Defendants created and maintained a hostile
work environment with respect to her gender. [Dkt. #123, Pl.’s Opp. at 22].
To establish a claim for a hostile work environment under Title VII, a
plaintiff must show that the complained-of conduct is “(1) objectively severe or
pervasive; (2) creates an environment that the plaintiff herself subjectively
perceives as hostile or abusive; and (3) creates such an environment because of
the plaintiff’s race” or membership in a different protected class. Goins v.
Bridgeport Hosp., 555 F. App’x 70, 71–72 (2d Cir. 2014). To determine whether an
environment is objectively hostile or abusive, a court must “look[ ] at all the
circumstances.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010)
(citation and quotations omitted) (emphasis in original).
These may include the frequency of the discriminatory
conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with
15
Even assuming Fiorillo met her burden of setting forth a prima facie case—
which she has not—the evidence submitted by the Defendants regarding the
company’s tight budget constraints and its need for all of its employees to
perform their jobs during a very busy time, coupled with the nature of the
accommodations Fiorillo requested and her failure to rebut the defendant’s
hardship arguments is sufficient to establish undue hardship. See Frumusa v.
Zweigles, Inc., 688 F. Supp. 2d 176, 186-87 (W.D.N.Y. 2010) (“[T]he burden of
nonpersuasion on the reasonableness of the accommodation and
demonstrating that the accommodation imposes an undue hardship amount to
the same thing.") (quoting Borkowski, 63 F.3d at 138) (citations omitted).
37
an employee’s work performance. The effect on the
employee’s psychological well-being is, of course,
relevant to determining whether the plaintiff actually
found the environment abusive. But while
psychological harm, like any other relevant factor, may
be taken into account, no single factor is required.
Id. (citation and quotations omitted).
“Title VII hostile work environment claims are subject to demanding
standards in order to avoid construing the statute as a general civility code.”
Ghaly v. U.S. Dep’t of Agric., 739 F. Supp. 2d 185, 196 (E.D.N.Y. 2010) (citation and
quotations omitted). As a result, “[i]solated incidents generally will not suffice to
establish a hostile work environment unless they are extraordinarily severe . . .
[although] even a single episode of harassment, if severe enough, can establish a
hostile work environment.” Kaytor, 609 F.3d at 647 (citation and quotations
omitted). However, “[c]onduct must be extreme to amount to a change in the
terms and conditions of employment . . . .” Callahan v. Buerkle, 570 F. Supp. 2d
288, 292 (D. Conn. 2008) (quoting Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998)). Indeed, a plaintiff has not established a hostile work environment
merely by showing that she was subjected “to intense scrutiny” or was criticized
“more than other employees.” Alers v. New York City Human Resources Admin.,
No. 06-cv-6131 (SLT) (LB), 2008 WL 4415246, at *6 (E.D.N.Y. Sept. 24, 2008) (citing
and quoting Garone v. United Parcel Serv., Inc., 436 F. Supp. 2d 448, 469 (E.D.N.Y.
2006) and Nugent v. St. Luke’s/Roosevelt Hosp. Ctr., No. 05 Civ. 5109, 2007 WL
1149979, at *9 (S.D.N.Y. Apr. 18, 2007)).
As an initial matter, in declining to grant the Employer Defendants’ motion
to dismiss, the Court liberally construed the Amended Complaint as alleging a
38
claim for a hostile work environment based on disability discrimination. See [Dkt.
#130, Memo. of Decision at 28 (distinguishing the cases cited by the Employer
Defendants on the ground that Fiorillo’s hostile work environment claim was not
“based on a wholly different type of discrimination”)].16
Otherwise, as the Employer Defendants correctly pointed out in their
motion to dismiss, Fiorillo’s hostile work environment claim would have been
subject to dismissal because it was not reasonably related to the disability
discrimination claim she raised before the EEOC. See [Dkt. #92-1, Employer
Defs.’ Memo. at 8 (citing Wright-Kahn v. People’s Bank, Bridgeport, No. 3:00-cv2314 (JBA), 2001 WL 902653, at *2 (D. Conn. Jul. 25, 2001) (finding failure to
exhaust where “[p]laintiff’s sex . . . claims in her complaint . . . [we]re not
reasonably related to the mental and physical disability discrimination alleged in
the EEOC charge”); Edwards v. New York State Unified Court Sys., No. 12 Civ. 46
(WHP), 2012 WL 6101984, at *7 (S.D.N.Y. Nov. 20, 2012) (holding failure to exhaust
disability discrimination claim where before EEOC plaintiff claimed she was
discriminated against “on the basis of her race and retaliated against [] for filing a
complaint with the EEOC and filing a sexual harassment suit”)].17 Moreover, even
16
The Complaint alleged that the hostile work environment was “brought about
because of Plaintiff’s gender,” [Dkt. #71, Second Corrected Second Am. Compl.
at ¶ 26], but relied exclusively on the facts underlying Fiorillo’s ADA claim,
which are devoid of any allegations of gender discrimination. See [id. at ¶¶ 1025].
17
Indeed, the lone portion of her EEOC submission Fiorillo cites in her opposition
to the Employer Defendants’ motion for summary judgment to support
exhaustion of her gender-based hostile work environment claim does not do
so. See [Dkt. #123, Pl.’s Opp. at 29, n. 26]. The cited paragraph from Fiorillo’s
EEOC affidavit alleged that “a female employee” had been promoted over her,
and stated only that Sikorsky “did not have any females in management
39
if Fiorillo’s gender-based hostile work environment claim was somehow deemed
to have been exhausted, the evidence Fiorillo relies on in bringing this claim does
not come close to establishing an objectively hostile work environment motivated
by her gender.18 Accordingly, the Court evaluates her properly exhausted
positions.” [Dkt. #123-4, Ex. E to Pl.’s Opp. at 116 (emphasis added)]. This
single stray remark regarding a lack of women in management positions is
insufficient to put the EEOC on notice that Fiorillo was alleging a hostile work
environment based on her gender. See Jiggets v. Diaz, No. 02 Civ. 8959 (LTS)
(JCF), 2009 WL 749575, at *7 (S.D.N.Y. Mar. 20, 2009) (holding that when
plaintiff’s EEOC charge alleged only religious discrimination, a reference to
himself as a “black-male” in the charge was insufficient to put the EEOC on
notice of unalleged racial discrimination claims).
18
First, Fiorillo claimed that Sikorsky failed to hire her as a supervisor because of
her gender, but then later admitted she never applied for any supervisory
positions. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 244:1-12, 24-25].
Second, she claimed David talked her out of applying for a supervisory
position because Sikorsky had no female managers, but she later
acknowledged the presence of at least two female managers. [Id. at 245:25246:9, 268:7-269:7]. Third, she baselessly claimed that she was prevented from
applying to the 53K program because of her gender, but elsewhere she offered
two other explanations for why David allegedly prevented her from applying,
which exclusively concerned her disabilities. [Id. at 220:25-221:3, 239:9-25,
283:8-9, 284:6-15]. Fourth, she claimed other Sikorsky employees, including
Lafferty, Morris, and Meisner, created a hostile work environment, but she was
unable to identify anything they did, other than her wholly unsupported claim
that Lafferty disclosed personal information by returning documents via a fax
machine located in a different facility than the one to which Fiorillo originally
sent them. [Id. at 279:20-281:15, 286:16-288:3]. Even if Fiorillo’s speculations
are correct, she offers no evidence that Lafferty’s decision to share her
personal information with others was motivated by either her gender or her
disabilities. Fifth, the unknown number of times in which David looked to other
male employees for their opinions before accepting Fiorillo’s conclusions
constitute, at most, isolated incidents insufficiently serious to support a hostile
work environment claim. See [Id. at 274:12-21, 276:9-19, 278:13-18]; Zayas v.
Caring Cmty. of Connecticut, No. 3:11-cv-442 (VLB), 2012 WL 4512760, at *7 (D.
Conn. Oct. 1, 2012) (distinguishing “offhand comments” and “isolated
incidents (unless extremely serious)” from “discriminatory changes in the
terms and conditions”). Sixth, Fiorillo’s belief that the workload was not evenly
distributed and that one of her colleagues who received less work was a male
is not sufficient to establish a hostile work environment based on her gender
for several reasons, including Fiorillo’s failure to offer any evidence for this
40
disability-based hostile work environment claim under the framework articulated
above.
Here, whether viewed separately or together, Fiorillo’s allegations are
insufficient to support her claim of a hostile work environment based on her
disability. First, David’s pre-leave responses to her concern about the amount of
work she was receiving in 2011 did not constitute such “discriminatory
intimidation, ridicule, and insult that the terms and conditions of her employment
were thereby altered.” Fairbrother v. Morrison, 412 F.3d 39, 48 (2d Cir. 2005). His
statements that “everybody’s working” as long hours as she was, that there was
“no place else” for the work to go, and that everyone “should be thankful that
we’re busy,” are facially neutral. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr.
at 47:8-10, 94:20-23; 193:12-21]. Critically, Fiorillo was one of several employees
who approached David about hiring more people in early 2011, but David did not
grant any of their requests. [Id. at 192:19-193:8]. Instead, as David testified, and
Fiorillo does not dispute, he went to his supervisor with his employees’ requests
and was informed that the company’s budgets and resources were so “tight” that
it could not add any additional people to the program. [Dkt. #123-1, Pl.’s
Statement of Disputed Facts at ¶ 77; Dkt. #123-4, Ex. C to Pl.’s Opp., David Dep.
Tr. at 53:6-7, 14-19]. Furthermore, at no point did Fiorillo tell David that her
requests for additional employees had anything to do with her disabilities,
belief, the fact that one of the other over-burdened employees was, at times, a
female, and the lack of evidence that the reason for the uneven distribution had
anything to do with her gender. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep.
Tr. at 178:23-179:3, 180:18-23, 182:17-23]. Finally, Fiorillo’s assertion that the
Defendants’ decision not to promote her since 1997 was due to her gender fails
to support her claim because she simply offers no evidence to substantiate
this belief. [Id. at 284:17-285:1].
41
severely undercutting any inference of discrimination based on David’s refusal to
act on them.
Relatedly, Fiorillo’s claim that she received more work than other
employees fails to establish a hostile work environment because she has not put
forth any evidence to support this allegation, nor does she contend that she ever
raised this concern with anyone at Sikorsky, beyond vaguely requesting an
“evenly distributed workload” from Kagdis months after she began her leave.
See [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 178:11-17, 23-179:3,
180:18-23 182:17-23].
Next, the unspecified facial gestures and verbal tones David made in
response to Fiorillo’s complaints about her workload also do not evince an
objectively hostile work environment for at least two reasons. [Dkt. #123-3, Ex. A
to Pl.’s Opp., Fiorillo Dep. Tr. at 91:6-92:14]. First, Fiorillo offers no support for
her subjective belief that these vague gestures and tones expressed some type of
dismay and were intended to insinuate that she was whining or complaining
about her work levels. See, e.g., Adeniji v. Admin. for Children Servs., NYC, 43 F.
Supp. 2d 407, 423 (S.D.N.Y. 1999) (“[I]t is well settled that a plaintiff’s
speculations, generalities, and gut feelings, however genuine, when they are not
supported by specific facts, do not allow for an inference of discrimination to be
drawn . . . .”) (citation and quotations omitted) (finding plaintiff failed to state a
prima facie case of national origin hostile environment discrimination).
More importantly, Fiorillo offers no facts tending to show that David’s
behavior was in any way related to her disability. See, e.g., Barnes v. CCH Corp.
42
Sys., No. 01 Civ. 2575 (AKH), 2004 WL 1516791, at *6 (S.D.N.Y. Jul. 7, 2004)
(granting summary judgment to defendant where plaintiff “offer[ed] no evidence
showing that” defendants’ social ostracism and failure to thank plaintiff for gifts
“had any nexus with [plaintiff’s] race, gender, or disease status”).19
Finally, Fiorillo acknowledges that she never informed David prior to going
on leave that her work levels had pushed her to the brink of a panic attack, nor
did she present him or anyone else at Sikorsky with a doctor’s note advising that
her workload be reduced. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at
196:3-13].
In addition to David’s initial refusal to hire more employees and his facial
expressions, Fiorillo contends that David created a hostile work environment by
intentionally thwarting her pursuit of job opportunities. Here again, Fiorillo offers
no evidence tending to show that David interfered in any way. With respect to the
53K program, Fiorillo asserts that she met with employees of the program, who
thought she would be a good fit, but before she could apply, the posting for the
position was removed from Sikorsky’s system, and a few months later, five
contract employees were hired to fill the position. [Id. at 225:21-25, 229:21230:10]. While Fiorillo surmises that David removed the job position specifically
19
For the same reason, Fiorillo’s contention that David directed certain
employees to contact her while she was on vacation, without more, does not
support her claim that he did so with discriminatory intent. See [Dkt. #123-3,
Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 92:14-93:3].
43
to prevent her from applying, she does not offer even a shred of evidence to
support her belief. [Id. at 231:10-18, 239:9-18].20
Similarly, her claim that David talked her out of applying for a supervisory
position fails to support her hostile work environment claim for a host of reasons.
[Id. at 245:25-246:9]. First, Fiorillo does not contend that he dissuaded her from
applying on the basis of her disabilities, but rather, her gender. [Id. at 268:7-14].
Second, David’s asking her if she really wanted to attend all of the necessary
meetings and would be willing to be on call throughout nights is, at most,
ambiguous. While the statement could refer to Fiorillo’s disabilities (or gender), it
is equally plausible that David, knowledgeable of Fiorillo’s home commitments,
including her disabled son, simply wished to inform Fiorillo of the extra time
commitment that a supervisory position demanded so she could determine for
herself whether to apply. [Dkt. #119, Defs.’ Rule 56(a)(1) Statement at ¶¶ 12-13;
Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶ 12-13]. His conduct was in no way
egregious; David did not threaten or verbally abuse her, demean or humiliate her
20
Even assuming David did take it down, neither of the two explanations Fiorillo
offers for this action establishes discriminatory intent. First, without any
support, Fiorillo claims that David prevented her from applying because her
work hours and work schedule did not conform to the program’s job
requirements. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 220:24221:3]. Even if Fiorillo offered some evidence to establish this, which she does
not, the reason itself is legitimate and non-discriminatory. That the reason
touched upon an accommodation she received for a disability does not
automatically render it discriminatory, at least where, as here, the
accommodation prevented her from fulfilling some of the job’s essential tasks.
Second, she claims he took the posting down because he generally
disapproved of her modified work hours accommodation. [Id. at 239:9-25].
However, she does not offer any facts to support her subjective belief that his
general disapproval of this accommodation had anything to do with why he
took it down. [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at 238:18-19,
239:23-25].
44
by informing her of the responsibilities of the position she was considering.
Third, Fiorillo offers no evidence that David prevented her from obtaining a
supervisory position by simply pointing out the responsibilities of the position so
that she could make an informed decision to apply or not to apply. Indeed,
Fiorillo admits that she never applied for any supervisory positions. [Id. at
244:24-25].
Following her leave of absence, Fiorillo claims she and David had a
contentious phone call, during which David yelled, “what is going on” at her, and
stated that he was unsure what he was going to do with her job. [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶¶ 46-47; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶¶
46-47]. While it is undoubtedly unpleasant to be yelled at, the statement he made
was facially neutral, and this was the sole instance David yelled at her. [Dkt.
#119, Defs.’ Rule 56(a)(1) Statement at ¶ 48; Dkt. #123-1, Pl.’s Rule 56(a)(2)
Statement at ¶ 48]. It is a single, isolated and relatively benign incident which
alone cannot support a hostile work environment claim. See Lewis v. New York
Homes & Cmty. Renewal, No. 15 Civ. 5478 (BMC) (RLM), 2015 WL 5695643, at *3
(E.D.N.Y. Sept. 28, 2015) (“A single incident of yelling is hardly, if ever, sufficiently
pervasive to create an ‘environment’ of hostility.”). Moreover, that David was
unsure of what he was going to do with her job makes perfect sense and was far
from objectively severe, given that Fiorillo did not on this call, or at any point
thereafter, inform anyone at Sikorsky of her anticipated return date.
Similarly, David’s assertion that the mere fact Fiorillo’s doctors had
submitted paperwork in support of her application for short-term disability
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benefits did not guarantee that her request would be approved, while, perhaps,
insensitive, was both facially neutral and factually correct. [Dkt. #119, Defs.’ Rule
56(a)(1) Statement at ¶ 49; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement at ¶ 49]. This
statement is simply an informative statement of fact which is in no way critical,
humiliating, demeaning, abusive or threatening, and therefore cannot support a
hostile work environment claim.
Finally, the letters Fiorillo received and the phone calls she had with
Lafferty and Kagdis are insufficient to support her hostile work environment
claim because they were not objectively hostile, nor were they sufficiently severe,
and they were made in response to Fiorillo’s silence as to when she would be
able to return to work. Neither Fiorillo nor her doctors ever informed anyone at
Sikorsky that she considered these communications to be harassing. Sikorsky’s
communications also were not excessive in number, given that Fiorillo took an
unannounced leave of absence in mid-July 2011, the first communication initiated
by anyone at Sikorsky was the September 13, 2011 letter, and Fiorillo initiated
many of the communications she had with Sikorsky during her leave, including
the August 2011 calls with Lafferty and David and the September 2011 call with
Lafferty following her receipt of Lafferty’s second letter. See [Dkt. #119, Defs.’
Rule 56(a)(1) Statement at ¶¶ 42, 45, 55; Dkt. #123-1, Pl.’s Rule 56(a)(2) Statement
at ¶¶ 42, 45, 55]. Indeed, over the roughly four month period Fiorillo was away
from work prior to her termination, members of Sikorsky reached out to her four
times, three times by letter, and once by phone, when Ms. Kagdis called Fiorillo in
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October 2011 regarding any accommodations she would need in order to return.21
These communications were expressly designed to both elicit an interactive
discussion of reasonable accommodations and inform Fiorillo of the
consequences of her continued inability to return to work. Sikorsky was legally
obligated to engage in these interactive discussions for Fiorillo’s benefit, with the
objective of affording Fiorillo a fair opportunity to return to work and keep her
job. No reasonable juror could find that neutral requests to engage in a
collaborative process required by law exceeded the bounds of conduct usually
tolerated by decent society. Nor could such a jury find that such entreaties to
engage in a job-preserving dialogue were especially calculated to cause severe
emotional distress. For these reasons Fiorillo’s hostile work environment claim
fails.
C. Fiorillo’s Intentional Infliction of Emotional Distress Claim Fails
To establish a claim for intentional infliction of emotional distress under
Connecticut law, the plaintiff must show that: (1) the actors involved intended to
inflict emotional distress or that the actor knew or should have known that
emotional distress was the likely result of the actor’s conduct; (2) the conduct
was extreme and outrageous; (3) the defendant’s conduct caused he plaintiff’s
distress; and (4) the emotional distress the plaintiff sustained was severe. Oliver
v. Waterbury Bd. of Educ., No. 3:12-cv-01285 (VLB), 2014 WL 1246711, at *19 (D.
Conn. Mar. 24, 2014). “Liability for intentional infliction of emotional distress
21
The record is unclear whether Fiorillo or David initiated the email exchange that
occurred between them in September 2011, although it is clear that both sent
and received emails. See [Dkt. #123-3, Ex. A to Pl.’s Opp., Fiorillo Dep. Tr. at
70:5-20, 202:20-203:3].
47
requires conduct exceeding all bounds usually tolerated by decent society, of a
nature which is especially calculated to cause, and does cause, mental distress
of a very serious kind. Id. “Conduct . . . that is merely insulting or displays bad
manners or results in hurt feelings is insufficient to form the basis for an action
based upon intentional infliction of emotional distress.” Id.
As discussed above, taken separately or together, the conduct by the
Employer Defendants simply was not extreme or outrageous. At most, Fiorillo
offers unsupported inferences of discriminatory intent, a single instance in which
her supervisor yelled at her, and a handful of ambiguous statements which, at
most, display bad manners. Cf. Pottie v. Atl. Packaging Grp. LLC, No. 3:12-cv-773
(WIG), 2012 WL 6087282, at *1 (D. Conn. Dec. 6, 2012) (finding plaintiff stated a
claim for intentional infliction when she alleged “[s]he was subject to a course of
verbal abuse and profanity, including being referred to by derogatory names and
asked what banana boat she came off, a remark insulting her national origin and
ethnicity . . . . She was ridiculed about her appearance in a sexually demeaning
manner. She was physically struck in the head and face with a hand, box or other
items”). No reasonable jury could find that Sikorsky’s conduct towards Fiorillo
was extreme or outrageous. Nor could a reasonable jury find that its attempts to
engage Fiorillo in an interactive dialogue to identify a reasonable accommodation
which would enable her to return to work as required by law was done
intentionally to cause her emotional distress. Surely, informing an employee of
the possibility of termination would cause stress, but that stress is the
unavoidable consequence of engaging in a dialogue which had the potential to
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help the employee keep their job; however, an employer cannot be said to
intentionally inflict emotional distress by engaging in a legally mandated
discussion designed to enable the employee to save their job. See Newtown v.
Shell Oil Co., 52 F.Supp.2d 366, 375 (D. Conn. 1999) (holding that employer's
subsequent notifying of employee that her employment was terminated did not
support claim of intentional infliction of emotional distress).
IV.
Conclusion
For the foregoing reasons, the Employer Defendants’ Motion for Summary
Judgment is GRANTED. Plaintiff’s Complaint is DISMISSED with prejudice. The
Clerk is directed to enter judgment in favor of the Defendants and to close the
case.
IT IS SO ORDERED
_________/s/______________
Vanessa L. Bryant,
United States District Judge
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