Blackett v. Whole Foods Market Group, Inc.

Filing 78

RULING ON MOTION FOR SUMMARY JUDGMENT. For the reasons set forth in the attached ruling, defendant's motion for summary judgment (Doc. # 57 ) is GRANTED with respect to Count 1 in part (FMLA retaliation), and Counts 2, 4, and 5; and DENIED with respect to Count 1 in part (FMLA interference), and Counts 3 and 6. The parties' joint trial memorandum is due within 30 days. See Doc. #20. It is so ordered. Signed by Judge Jeffrey A. Meyer on 3/27/2017. (Gruber, Sarah)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID BLACKETT,
Plaintiff,
v.

No. 3:14-cv-01896 (JAM)

WHOLE FOODS MARKET GROUP, INC.,
Defendant.
RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff David Blackett worked in the seafood department for defendant Whole Foods
Market Group, Inc. (Whole Foods) at one of its stores in Greenwich, Connecticut. Plaintiff
suffered two injuries that led to his taking three separate medical leaves of absence. Defendant
declined to give plaintiff his job back or to re-hire him for another position.
Plaintiff has now brought suit alleging claims of discrimination, interference, and
retaliation under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act
(ADA), the Connecticut Fair Employment Practices Act (CFEPA), and a Connecticut law that
prohibits workers’ compensation retaliation. Defendant moves for summary judgment on all
these claims. I will grant the motion in part and deny the motion in part.
BACKGROUND
The following facts are either agreed upon by both parties or presented in the light most
favorable to plaintiff as the non-moving party. Defendant hired plaintiff in July 2011 as a team
member in the seafood department. In a matter of months, plaintiff was promoted to assistant
seafood team leader; he worked in that role at the Chelsea store from January 2012 to May 2012,
and then at the Greenwich store from May 2012 to the date of his separation in November 2013.
On September 6, 2012, plaintiff received an unsatisfactory work warning from his
supervisor, Abraham Iglesias, the seafood team leader. Doc. #60-1 at 90. Within a month,

plaintiff had drastically improved, prompting Iglesias to send a glowing e-mail to store
leadership indicating plaintiff’s significant strides, even if improvement was still needed in
“store ops.” Doc. #68-13 at 2.
On September 11, 2012, plaintiff slipped and fell in defendant’s parking lot, and injured
his shoulder, which required rotator cuff surgery. Docs. #68-2 at 2 ¶ 3; #68-14 at 2. He took a
leave of absence from November 27, 2012 to January 29, 2013. Defendant later classified this
leave as FMLA leave, although plaintiff’s employment records do not indicate that this leave
was FMLA-classified. Doc. #60-1 at 99. Plaintiff never filled out the required FMLA form for
this absence, and defendant did not notify him in writing that this leave would be designated as
FMLA leave, contrary to the dictate of its employee manual, id. at 12, as well as the FMLA. See
29 C.F.R. § 825.300(d)(1).
Plaintiff received workers’ compensation during this leave of absence. Doc. #60-1 at 50.
After his surgery, plaintiff e-mailed the Whole Foods team to update them on his recovery, and
the store team leader, Pat Mulrooney, replied on November 29, 2012: “Thanks for reaching out.
Sorry to hear about the Pain!!!!! . . . Hang in there and keep us posted on your recovery!!!” Doc.
#68-39 at 6. When plaintiff determined that he could return to work on January 29, 2013, with
some very limiting restrictions—no lifting greater than five pounds in the left hand, no lifting the
left hand over his shoulder, and no repetitive work with the left hand—he notified his
supervisors, who immediately accommodated him with light work. Plaintiff’s light work
involved back-of-the-house office tasks, auditing the tags throughout the store, and other small
tasks that required the use of only one arm. This arrangement was memorialized in a Transitional
Duty Return to Work Agreement, which provided for a “temporary position[ ] designed to assist
the team [m]ember back to his/her regular job.” Doc. #60-1 at 95.

2

Despite this seemingly warm welcome back in January, plaintiff also perceived some
negative attitudes towards him upon his return, including when Iglesias told him “Nice vacation.
I hope you enjoyed your time off.” Doc. #68-6 at 34. After two to three weeks of back-office
work, plaintiff was called to the store team leader’s office with Iglesias, and was told that there
was not enough light work for him to do. Doc. #60-1 at 40. Plaintiff was asked to take another
leave of absence, which would again be covered by workers’ compensation, beginning on
February 19, 2013. Plaintiff acquiesced, consistent with a prior e-mail in which plaintiff
expressed some willingness to wait to return to work until his doctor cleared him with fewer
restrictions. See Doc. #68-39 at 2–4. For this second leave of absence, the requisite FMLA
paperwork appears to have been filled out at least on defendant’s part (but not on plaintiff’s—he
never signed the form), indicating that plaintiff had taken FMLA leave in the prior 12 months.
Doc. #60-1 at 97. Plaintiff’s employment records reflect his leave as FMLA-classified.
By the time plaintiff was to return from his second leave, both of his direct supervisors
had (or would very soon) change: plaintiff’s seafood team leader, Iglesias, had been replaced by
Scott Place, and the store team leader, Pat Mulrooney, would be replaced within days by Bimini
Hayes. On March 29, 2013, plaintiff e-mailed his new supervisors a medical certification
clearing him to return to work with fewer restrictions than he had had after his first leave of
absence. Unlike after his first leave, when plaintiff had described his arm as “pretty useless,”
Doc. #68-39 at 2, plaintiff stated that he was now able to do “pretty much anything . . . except
maybe opening and closing wich requires heavy lifting. the Dr. anticipates full capacity by end
of April.” Doc. #68-18 at 2.
Plaintiff’s new supervisors were less confident about his recovery. Place e-mailed Hayes
(and others in the store) that he felt “apprehensive” about plaintiff’s returning to the seafood

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department with physical restrictions, noting that he felt “strongly” that plaintiff should not come
back until he had a 100% medical clearance. Doc. #68-19 at 2. Place quarreled with plaintiff’s
assertion that he could do “pretty much anything,” pointing to two specific activities plaintiff
would be unable to do—lifting cases and putting out the soup. Ibid. Place noted that the seafood
schedule already suffered for lack of employees able to open and close the department, and he
also wrote: “I think we are playing with fire if he comes back without a 100 %
clearance . . . . Who is to say he is [not] going to lift something the wrong way then we are back
to square one.” Ibid.
Despite Place’s concerns, Hayes decided to offer plaintiff a species of light duty work, as
had Mulrooney after plaintiff’s first leave; she had plaintiff take on several “administrative
functions” as a shift leader for the entire store (not just the seafood department) upon his return
on April 8, 2013. Docs. #68-3 at 9–11; #68-20 at 2 (describing this as a “Transitional Job
Modification” to help accommodate his restrictions until he fully recovers). He reported directly
to Hayes in this role, Doc. #60-1 at 32, and Hayes indicated that he did the job satisfactorily.
Doc. #68-3 at 16. After two to three weeks of working as a shift leader, and even though plaintiff
was still not cleared to perform full-duty work, he was to transition back to the seafood
department, to be supervised for the first time by Place as the new seafood team leader.
But before plaintiff’s transition back to the seafood department, and although Place had
not yet had any chance to supervise plaintiff, Place approached Hayes and indicated that he was
concerned about plaintiff’s performance, doubting whether plaintiff had even a basic
understanding of what his job entailed. Id. As a result of this conversation, Hayes drafted a list of
plaintiff’s job expectations, Doc. #68-21 at 2, a type of document intended to assist struggling

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employees. Doc. #68-3 at 15. Hayes and Place presented this list of job expectations to plaintiff
on April 22, 2013.
The parties dispute whether this list shows increased responsibilities, Doc. #68-2 at 2 ¶4,
whether any change in responsibilities was merely the byproduct of having a new supervisor, see
Doc. #60-1 at 75–77, or whether different responsibilities corresponded with plaintiff’s
continued medical restrictions, see Doc. #68-21 at 2; see also Doc. #60-1 at 87 (internal job
description). In any event, plaintiff struggled with these new tasks and, on or about May 13,
2013, Hayes and Place presented plaintiff with a “note to file,” detailing the tasks listed on his
“job expectations” list for which plaintiff needed improvement.1 Plaintiff told Hayes that he
struggled with some of the new tasks he had been given, such as using the purchase order
systems, because he had not been properly trained to handle them. See Doc. #60-1 at 75–76. But
when he asked Hayes for training, he was rebuffed and told that he would learn through his
mistakes. Doc. #68-6 at 33.
The “note to file” stated that plaintiff would not be issued a written warning if he had
made a “marked improvement” in his performance within 30 days. Doc. #60-1 at 103. Within 17
days, however, plaintiff received a written warning for “continu[ing] to struggle with daily
operations and with store Ops.” Id. at 105. This time, plaintiff was not given a time frame within
which to improve, id. at 106, but he later learned that he should have improved within eight days,
because he received a final warning on June 7, 2013, in which he had 30 days to improve or else
risk termination. Id. at 108.

1

Both parties state that this note to file was presented to plaintiff on April 22, 2013, but it would appear
that the reference to “April 22, 2013” in the note to file was merely an indication that the “job expectations” list had
been given to plaintiff on that date. The note to file goes on to state that, on May 13, 2013, plaintiff’s work
performance was lacking; therefore, the earliest this note to file could have been presented to plaintiff was May 13,
2013.

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He did not make it to 30 days. On June 18, 2013, he aggravated an old back injury while
at home and, after informing Marlene Reyes, defendant’s benefits coordinator for the Greenwich
store, plaintiff began a leave of absence on June 20, 2013. Soon after he began his leave, he
learned that he required intensive back surgery, and he e-mailed this information to Hayes, Place,
and Reyes. Doc. #68-27 at 3. Reyes eventually sent him paperwork so that he could receive
short-term disability payments, which he did. Doc. #68-28 at 2. And for the first time in his three
medical leaves of absence, plaintiff was told, in writing, that this leave would be FMLAclassified, and he was sent the proper FMLA forms. Doc. #68-27 at 4. This leave was, again, not
noted in plaintiff’s employment records. See Doc. #60-1 at 99.
The FMLA form that plaintiff received noted that he had taken FMLA leave in the prior
12 months, and that this current FMLA leave was to begin on June 20, 2013, and become
exhausted by July 23, 2013. Doc. #68-25 at 2–3. After July 23, 2013, plaintiff’s leave would then
be classified under state law as CT FMLA leave, id. at 2, although the form did not indicate on
exactly which date his CT FMLA would become exhausted (according to this calculation, or
August 20, 2013).
Plaintiff received this crucial FMLA form not before July 16, 2013, after he had already
scheduled and completed back surgery which defendant knew would keep plaintiff out of work
for at least six weeks, or until August 20, 2013. See Doc. #68-27 at 2–5. Put in context, plaintiff
received his first ever notice of FMLA usage and rights one week before expiration of (what the
form indicated was) all of his federal FMLA leave, and after he had already undergone surgery
that would leave him unable to return to work until, at the earliest, exactly when his CT FMLA
leave would expire. The form plaintiff received was not only the first notice plaintiff received

6

about his FMLA rights, but, as will soon be discussed, it miscalculated his leave time, and it did
not indicate that plaintiff would be taking extended medical non-occupational (EMN) leave.2
On August 13 and 21, 2013, plaintiff sent defendant medical certifications from his
physician, indicating that he could return to light-duty work by September 10, 2013, and fullduty work on October 1, 2013. Docs. #60-1 at 110–13; #68-29 at 2.3 Reyes forwarded this
doctor’s note to John Flaim, the regional benefits coordinator, who then drafted a letter in
response on August 21, 2013. Docs. #70-2 at 4; #68-10 at 25–26. The letter indicated that
plaintiff had exhausted his state and federal FMLA leave, but that he would be moved to EMN
leave for an additional two weeks, or until September 4, 2013. Doc. #68-30 at 2. The mandatory
return date of September 4, 2013, would have been consistent with defendant’s EMN policy of
allowing two weeks beyond CT FMLA leave, and consistent with the erroneous calculation of
plaintiff’s FMLA leave from the form he received on or around July 16, 2013. See Doc. #68-25
at 2–3. Plaintiff was told that his same position and pay rate would not be guaranteed upon his
return, Doc. #68-30 at 2, even if, unbeknownst to plaintiff, defendant had sometimes bent this

Defendant’s policies required employees to take FMLA leave prior to any other leave of absence available
under its policies. Doc. #60-1 at 10. After employees exhausted their FMLA leave time, defendant offered
discretionary EMN leave to employees with persisting non-occupational medical issues. Defendant’s written policy
provides EMN leave two weeks beyond exhaustion of CT FMLA leave, and even more time beyond those extra two
weeks in the discretion of defendant’s regional office. Id. at 13, 27. To receive EMN leave, an employee must
complete a leave of absence form. Id. at 13.
2

It may have been at this point—receipt of plaintiff’s medical certification—that defendant realized that it
had never notified plaintiff that his protected leaves had expired, leaving his federal and state rights to reinstatement
behind, or that plaintiff might be eligible for EMN leave. See Doc. #70-1 at 4–5 (e-mail indicating that “he should
have been sent an LOA letter which explains his status under EMN . . . . If he has not been made aware of this, we
need to let him know ASAP.”); Doc. #60-1 at 26 (defendant’s internal policy was to notify an employee in writing
as soon as EMN leave would start—that is, as soon as that employee exhausted all FMLA and CT FMLA leave).
The record does not conclusively reveal whose responsibility it should have been to administer defendant’s leave
policies. Reyes, the Greenwich benefits coordinator, was plaintiff’s principal contact in coordinating his leaves of
absence. But Reyes answered to Hayes, the store team leader; the regional benefits director, John Flaim; and several
people in defendant’s headquarters in Texas, including Sharon Shipman. When administering employee leave,
Reyes would receive information from an employee, and forward it to Flaim, Doc. #70-2 at 5, even though it was
not Flaim but Shipman who was responsible for calculating FMLA leave time, Doc. #68-10 at 21–24. It was also
Shipman who would have been responsible for telling plaintiff his leave had expired. Doc. #70-2 at 5.
3

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policy to allow for an employee to be reinstated to the same position upon return from EMN
leave. Doc. #68-11 at 18.
Upon receipt of this letter, plaintiff immediately asked Reyes to clarify how she had
calculated the return-to-work date, Doc. #68-31 at 2, even though it had actually been Flaim who
calculated that date. Doc. #68-10 at 28. Plaintiff sprang to action upon receipt of the letter: this
letter was the first time plaintiff had been informed that he had exhausted his protected leave
under state or federal FMLA, had been moved to EMN leave, and been notified that his job
position might not be guaranteed upon his return.
Reyes responded by e-mail about a week later, on August 28, 2013, with an entirely
different calculation of leave time than the calculation on the form that plaintiff had signed, see
Doc. #68-25 at 2, or the calculation set forth in the letter of August 21. The e-mail noted that
plaintiff’s first leave (44 working days) and second leave (34 working days) had been FMLAclassified, exhausting all of his federal FMLA leave by April 7, 2013. Doc. #68-32 at 2. His third
leave would then exhaust all four weeks of CT FMLA by July 17, 2013, after which time he
would have been eligible for EMN leave for two weeks, or until July 31, 2013. Ibid. The e-mail
then explained that defendant had “decided to grant you additional [EMN] time” beyond the
normal two weeks of EMN leave, until September 4 or 5, 2013, even though plaintiff had never
requested it. See Doc. #70-2 at 6–7. Reyes’ calculation of plaintiff’s state and federal FMLA
leaves appears to be accurate: plaintiff’s first leave spanned nine calendar weeks, his second
spanned seven weeks, and his third spanned 11 weeks.
Now faced with a mandatory return date prior to the date plaintiff had been cleared by his
doctor for even light duty, and finally an explanation about how his leave time had been
calculated, plaintiff immediately scrambled to call his doctor and ask whether he would be able

8

to return to full-duty work as early as September 4, 2013. Doc. #68-6 at 23–24. The doctor told
plaintiff that it would be fine as long as plaintiff felt he could handle it. Ibid. The doctor wrote a
new note, which plaintiff immediately forwarded to Hayes and Reyes on August 30, 2013,
indicating that plaintiff would be able to return to full-duty on the mandatory return date he had
been given. Id. at 25; Doc. #68-34 at 2.
But by the time defendant received plaintiff’s second doctor’s note, it had already posted
plaintiff’s job of assistant seafood team leader in the Greenwich store as vacant. Doc. #68-36 at 2
(job posted on August 29, 2013). Defendant also had John Martin, the assistant store team leader
at the time, call plaintiff to tell him that, because of the discrepancy in the two doctor’s notes—
one authorizing full return to work and the other not allowing even a light-duty return—
defendant wished to review plaintiff’s medical records, and asked whether plaintiff would be
willing to go to defendant’s doctors at Concentra to make sure he was able to return to work.
Doc. #68-6 at 26. Plaintiff provided the release and, after phone-calls back and forth to plaintiff’s
doctor, on September 9, 2013—past plaintiff’s mandatory return date—Reyes e-mailed Flaim
that she had confirmed with plaintiff’s doctor that plaintiff was cleared to return to work as of
September 4, 2013. Plaintiff never went to defendant’s doctors at Concentra, and defendant
never insisted.
On September 12, 2013, plaintiff met with Hayes and Reyes, who informed him for the
first time that his position as assistant seafood team leader was no longer available to him,
though Hayes did not indicate that it was vacant, or why he would be ineligible to apply for it.
Hayes indicated that plaintiff was not fired, and that he could apply for any other position at
Whole Foods, from team member to assistant team leader, using an internal system that posted
job availabilities. Id. at 26–28. At some point during the process, plaintiff reached out to Reyes

9

for help navigating the internal job postings. Doc. #60-1 at 40. Plaintiff applied for the one
comparable full-time position, as the other five or six postings were minimum-wage or part time
positions. Doc. #68-6 at 29. That one full-time position had been filled by the time plaintiff was
able to reach the kitchen manager on the phone. Id. at 30. Plaintiff’s former position as assistant
seafood team leader was filled by someone else on September 24, 2013. Doc. #68-36 at 2.
Throughout the time plaintiff was applying, Reyes and Flaim corresponded about how
much time they should give plaintiff to apply for another position, with Flaim noting that it was
“unfair” that plaintiff might only have 30 days from September 12. Doc. #70-2 at 7. On October
8, 2013, plaintiff received a letter from Reyes (which, again, had been drafted by Flaim, id. at 7–
8), indicating that all had agreed to allow plaintiff another 30 days—until November 8, 2013—to
find and secure another position at Whole Foods, or else be terminated. Doc. #60-1 at 85.
Plaintiff failed to secure another position, and was terminated. Hayes testifies that
plaintiff was terminated because he did not timely return from his leave. Id. at 39. Flaim, who
has never met or interacted with plaintiff, states that he was aware of plaintiff’s poor
performance and that, based on this understanding of plaintiff’s performance, he counseled
Hayes and Reyes that they would not be obligated to hold plaintiff’s position open for him, Doc.
#61 at 3 (¶¶ 9, 11), although he did not go so far as to state that plaintiff would have been fired as
a result of his poor performance. Plaintiff’s employment record contains two identical “Team
Member Separation Forms”—with identical signatures from Hayes, and all else identical on the
form—except that one indicates the reason for separation as “Voluntary Leaving/Other Reason,”
Doc. #68-9 at 2, and the other indicates the reason for separation as “Failed to Return from
LOA,” id. at 3. Plaintiff did not “grieve” his termination through defendant’s internal policies.
Doc. #68-6 at 32.

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On December 12, 2014, plaintiff filed this action against defendant for FMLA
interference and/or retaliation pursuant to 29 U.S.C. § 2617(a) (Count 1), CFEPA and ADA
disability discrimination (Counts 2 and 5), CFEPA and ADA regarded-as disability
discrimination (Counts 3 and 6), and workers’ compensation retaliation pursuant to Conn. Gen.
Stat. § 31-290a (Count 4).4
DISCUSSION
The principles governing a motion for summary judgment are well established. Summary
judgment may be granted only if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). “A genuine dispute of
material fact exists for summary judgment purposes where the evidence, viewed in the light most
favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s
favor.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). The evidence
adduced at the summary judgment stage must be viewed in the light most favorable to the nonmoving party and with all ambiguities and reasonable inferences drawn against the moving party.
See, e.g., Tolan, 134 S. Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d
Cir. 2013). All in all, “a ‘judge’s function’ at summary judgment is not ‘to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.’”
Tolan, 134 S. Ct. at 1866 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

4

At oral argument, plaintiff abandoned his claims of disability discrimination (Counts 2 and 5). If plaintiff
disputes the import of his concessions at oral argument, he may file a motion for reconsideration within 10 days
setting forth the basis for the Court’s misunderstanding.

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FMLA interference and/or retaliation (Count 1)
The Second Circuit recognizes two types of FMLA claims—“interference” claims and
“retaliation” claims. See Potenza v. City of New York, 365 F.3d 165, 167–68 (2d Cir. 2004) (per
curiam). For plaintiff’s claim of FMLA interference, he must “establish that the defendant
denied or otherwise interfered with a benefit to which [he] was entitled under the FMLA,”
Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016) (citing 29 U.S.C.
§ 2615(a)(1)), even if the defendant never subjectively intended to interfere with plaintiff’s
FMLA rights. See Wanamaker v. Westport Bd. of Educ., 11 F. Supp. 3d 51, 69 (D. Conn. 2014).
An employee who returns from FMLA-qualifying leave is entitled to be restored to the
same or equivalent position upon timely return from his leave. See 29 U.S.C. § 2614(a). The
right to reinstatement is “a benefit at the crux of the FMLA’s provisions,” Fernandez v. Windmill
Distrib. Co., 159 F. Supp. 3d 351, 363 (S.D.N.Y. 2016), and an employer who fails to reinstate
an eligible employee may be liable for FMLA interference. See 29 U.S.C. § 2615(a)(1). It is
undisputed that, on the date plaintiff attempted to return to work, he had already exhausted all of
his state and federal FMLA leave, and an employee’s failure to return to work before all of his
leave has expired ordinarily dooms a failure-to-reinstate interference claim. See Wanamaker, 11
F. Supp. 3d at 71 (citing cases).
But not so for plaintiff, because a reasonable jury could conclude that defendant’s woeful
non-compliance with the FMLA’s notice requirements prejudiced plaintiff in his ability to
exercise the rights given to him under the FMLA, particularly the ability to “conform [his]
desired period of leave to the employer’s policies so as to preserve the right to
reinstatement . . . .” Fernandez, 159 F. Supp. 3d at 363. An employer’s “[f]ailure to follow the
[FMLA] notice requirements [of 29 C.F.R. § 825.300] may constitute an interference

12

with . . . the exercise of an employee’s FMLA rights,” 29 C.F.R. § 825.300(e), so long as that
failure results in a prejudice to the employee. See Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 90–91 (2002).
The first requirement of plaintiff’s interference claim—defendant’s failure to follow the
FMLA notice requirements—is undeniably met here. Defendant failed to provide eligibility
notice for plaintiff’s first or second leave, which would have required it to notify plaintiff “of
[his] eligibility to take FMLA leave within five business days” of knowledge that plaintiff’s
leave may be for an FMLA-qualifying reason. See 29 C.F.R. § 825.300(b)(1). Defendant also did
not follow the rights-and-responsibilities notice requirements as to these two leaves, or furnish
written notice of “the specific expectations and obligations of the employee [in taking FMLA
leave] and explaining any consequences of a failure to meet these obligations,” see 29 C.F.R.
§ 825.300(c). Finally and most crucially, defendant failed to follow the designation notice
requirements as to all three of plaintiff’s leaves, which would have required it to provide written
notice to plaintiff, within five business days of knowledge that a leave is being taken for a
FMLA-qualifying reason, “whether the leave will be designated and will be counted as FMLA
leave,” 29 C.F.R. § 825.300(d)(1), and failed again by not providing written notice within five
business days of a change to plaintiff’s designation notice, such as when plaintiff would exhaust
his FMLA leave. Id. at § 825.300(d)(5); see also Regs., Conn. State Agencies, § 31-51qq-19
(imposing same notice requirements for CT FMLA leave).
Plaintiff contends that he was prejudiced by defendant’s failure to provide the required
FMLA notices because he was unable to exercise his rights in a way that could have preserved
his right to reinstatement. See Doc. #68 at 33; Reyes v. Phoenix Beverages, Inc., 2016 WL
4991530, at *18 (E.D.N.Y. 2016) (lack of notice must have affected employee’s exercise or

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attempted exercise of a substantive right conferred by the FMLA). To this, defendant counters
that, because plaintiff took more than 12 weeks of protected leave, he received all the benefits to
which he was entitled, and therefore any lack of notice was harmless. See Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161–62 (2d Cir. 1999) (“[Plaintiff’s] right to
reinstatement could not have been impeded or affected by the lack of notice because his
leave . . . continued [beyond] his 12-week FMLA leave period. Any lack of notice . . . could not
rationally be found to have impeded [plaintiff’s] return to work.”).
Although this second requirement of plaintiff’s interference claim—prejudice—is a
closer call, it is one that presents a genuine issue of material fact for a jury to decide. To begin, a
reasonable jury could conclude that plaintiff would have attempted to structure his leaves in
order to preserve his right to reinstatement. See Reid-Falcone v. Luzerne Cnty. Comm. College,
2005 WL 1527792, at *5–*6 (M.D. Pa. 2005) (denying summary judgment on similar notice
claim because plaintiff adduced evidence sufficient for a jury to conclude that she “would have
structured her leave in such a manner as to preserve her reinstatement rights”). Given the number
of times defendant failed to provide required notices to plaintiff, plaintiff might have structured
his leaves differently any number of times, but lost the opportunity to do so. Indeed, on August
21, 2013, the moment plaintiff learned that his protected leave was coming to an end (or perhaps
had already ended), he scrambled to return to work well prior to the date he had originally been
medically cleared to return, showing a resolve and ability to influence the duration of his several
leaves to small, but not insurmountable degrees.
And although defendant is correct that plaintiff received all 12 weeks of his federal leave,
plaintiff might nevertheless have been prejudiced if he would have been medically able to
structure his leaves differently in order to avail himself of his FMLA rights notwithstanding his

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several severe and unplanned medical conditions. See Ridgeway v. Royal Bank of Scotland Grp.,
2013 WL 1985016, at *18 (D. Conn. 2013) (triable issue whether surgery was medically
necessary or could have been postponed). To this point, defendant has not met its initial burden
to show the absence of facts that could establish prejudice. See Conoshenti v. Public Serv. Elec.
& Gas Co., 364 F.3d 135, 146 (3d Cir. 2004) (affirming denial of summary judgment on FMLA
interference claim where moving party failed to point to absence of evidence of prejudice).
After drawing all reasonable inferences in plaintiff’s favor, the record reveals that, if
plaintiff had been given proper designation notices, he might have attempted to return to work
earlier from his first leave, or he might not have acquiesced in taking his second leave—a forced
leave—for lack of light duty work, and insisted that he was fit for duty, had he known that it
would have exhausted his state and federal FMLA allotments. See 29 C.F.R. § 825.312(b) (if
employer seeks fitness-for-duty certification, employer must provide employee with a list of the
essential functions of the employee’s job and allow employee to have health care provider
determine whether employee can perform those essential functions); Sista v. CDC Ixis N. Am.,
Inc., 445 F.3d 161, 175 (2d Cir. 2006) (forced FMLA leave may constitute actionable
interference if it results in denial of a substantive right under FMLA).
Defendant’s later-given list of essential job functions—“performs all functions necessary
to assist the seafood team leader in the daily operation of the department,” Doc. #60-1 at 110–
13—and plaintiff’s job description, id. at 87, could lead a reasonable jury to conclude that
plaintiff would have been able to perform these functions even with shoulder limitations.
Additionally, had plaintiff received timely designation notices, he might have scheduled his back
surgery for a different time, affecting the duration of his third leave. See Reid-Falcone, 2005 WL
1527792, at *5–*6. A triable issue of fact therefore exists as to prejudice, including whether

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plaintiff was impeded in the exercise of his rights, and/or might have been able to conform his
leaves in a manner that preserved his right to reinstatement. See Ridgeway, 2013 WL 1985016, at
*18. I will deny summary judgment on Count 1 with respect to plaintiff’s claim of FMLA
interference.
Plaintiff next brings a claim for FMLA retaliation, which follows the familiar
McDonnell-Douglas burden-shifting standard, and requires plaintiff to show “that (1) he
exercised rights protected under the FMLA; (2) he was qualified for his position; (3) he suffered
an adverse employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of retaliatory intent.” Donnelly v. Greenburgh Cent.
Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012). Although defendant contends that plaintiff
was not “qualified for his position” because he was not medically cleared to return to work at the
moment his statutory leave ended, Doc. #58 at 40–41, the time to measure when plaintiff was
qualified is the time of the adverse employment action, which was plaintiff’s termination on
November 8, 2013, at which time he was medically cleared to return to work. See Turner v.
Eastconn Regional Educ. Serv. Ctr., 2013 WL 6230092, at *17 (D. Conn. 2013), aff’d, 588 F.
App’x 41 (2d Cir. 2014). Defendant’s argument conflates the issue of whether plaintiff timely
asserted his FMLA right to reinstatement (maybe not) with whether plaintiff’s ultimate
termination from a job for which he was qualified could have been motivated by retaliation for
plaintiff’s prior exercise of his FMLA rights (maybe so).
Defendant also asserts that plaintiff has not advanced evidence that the adverse
employment action occurred under circumstances giving rise to an inference of retaliation for
plaintiff’s exercise of FMLA rights. Plaintiff must show that “a causal connection exists between
the plaintiff’s protected activity and the adverse action taken by the employer.” Donnelly, 691

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F.3d at 152. The temporal proximity between the time when plaintiff took his leave and his
termination provides a sufficient basis for plaintiff to meet his “minimal burden” of establishing
this prong. See ibid.; Summerlin v. Almost Family, Inc., 2014 WL 1055576, at *3 (D. Conn.
2014).
The burden then shifts to defendant to provide a legitimate, non-discriminatory reason for
the adverse action. Defendant has proffered two reasons for plaintiff’s termination: his failure to
timely return from protected leaves, and poor performance. As to the first reason, if a jury could
find that defendant prejudicially interfered with plaintiff’s leave (as I have discussed above), then
plaintiff’s failure to timely return from leave cannot constitute a legitimate basis for termination.
See Graziadio, 817 F.3d at 429–30.
The second reason—plaintiff’s alleged poor performance—could provide a legitimate,
non-discriminatory reason for his discharge, and so the burden shifts back to plaintiff to show
that this reason was a mere pretext for having fired him because he exercised his rights under the
FMLA, a showing which requires him to demonstrate both that his employer’s stated reason was
untrue or incomplete and that discrimination played a causal role in his termination. See, e.g.,
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 157 (2d Cir. 2010).
Plaintiff has adduced evidence that his poor performance was not the real reason for his
termination: neither Place, Hayes, nor Reyes indicated that plaintiff was terminated for his poor
performance, and only Flaim obliquely advanced this reason, despite never having met plaintiff
and potentially not having a say in the decision to terminate him. Cf. Doc. #60-1 at 21 (store
team leader “has the final say because it’s their store”).
But even if defendant might not have fired plaintiff for his poor performance, there is no
affirmative evidence that it fired him in retaliation for having taken FMLA leave. The evidence

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presented by plaintiff does not causally connect plaintiff’s leave with his termination:
defendant’s shifting reasons for termination, Place’s criticism of plaintiff’s work performance
before he had even had a chance to be his supervisor, plaintiff’s increased job responsibilities,
and the fact that his position was open when he attempted to return to that position, lack any
connection to plaintiff’s exercise of rights under the FMLA. Compare Donnelly, 691 F.3d at 152
(negative evaluations that referenced protected absences); Green v. Cellco P’ship, --- F. Supp. 3d
---, 2016 WL 6462130, at *7 (D. Conn. 2016) (evidence that plaintiff was threatened with
termination if he took too much leave); Mendillo v. Prudential Ins. Co. of Am., 156 F. Supp. 3d
317, 347 (D. Conn. 2016) (evidence that employer disliked plaintiff’s protected absences).
Rather than disclosing any impermissible retaliatory motive on defendant’s part, the
record reveals the opposite: when defendant realized its deficiencies in administering plaintiff’s
leaves, it gave plaintiff more and more time to search for another job within the company. See
Doc. #70-2 at 7. Even though plaintiff’s former position was vacant and never offered to him, the
record discloses no evidence that defendant extended time for plaintiff to find a new job within
Whole Foods, while secretly deciding to terminate him because he had exercised his rights under
the FMLA. See Wanamaker, 11 F. Supp. 3d at 74 (“the fact that Plaintiff in this case was given
this extended leave after she exhausted her FMLA leave weighs against a finding of retaliatory
motive on the part of Defendant”). Because plaintiff has raised no triable issue as to pretext, I
will grant summary judgment on his claim of FMLA retaliation in Count 1.
Workers’ compensation retaliation (Count 4)
Plaintiff’s state law claim of workers’ compensation retaliation requires proof that he was
exercising a right under Connecticut’s workers’ compensation statutes, and that defendant
discriminated against him for exercising that right. See Diaz v. Hous. Auth. of Stamford, 258

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Conn. 724, 731 (2001). His claim is subject to the familiar McDonnell-Douglas burden-shifting
framework. See Ford v. Blue Cross & Blue Shield of Conn., Inc., 216 Conn. 40, 53 (1990).
In support of a causal connection between plaintiff’s compensable injury and his
termination, plaintiff notes that, immediately after he returned from his second leave, his job
duties were increased and he was denied proper training, resulting in negative work evaluations
that allegedly formed the basis of his termination. See Hammond v. City of Bridgeport, 139
Conn. App. 687, 695–96 (2012) (if evidence shows “that the defendant knew or was otherwise
aware that the plaintiff had exercised [his] rights under the act,” plaintiff may establish a causal
connection “indirectly by showing that the protected activity was followed closely by
discriminatory treatment”). This is sufficient to meet plaintiff’s minimal prima facie burden.
Plaintiff fails to raise a triable issue, however, that defendant was motivated by retaliatory
animus for plaintiff’s exercise of rights under the workers’ compensation laws. The specific
evidence plaintiff points to other than his increased job duties—Iglesias’ “nice vacation”
comment, Doc. #68-6 at 34, plaintiff’s forced second leave, and Place’s concerns that plaintiff
might reinjure himself if he returned to work too soon, Doc. #68-19 at 2—does not reasonably
relate to plaintiff’s exercise of rights under the workers’ compensation laws. And even if it did,
the evidence is not reasonably tied to the decision to terminate plaintiff, as neither Iglesias nor
Place made the decision to terminate him, and plaintiff’s second leave resulted in additional
workers’ compensation payments. Because plaintiff has not raised a genuine issue of fact that his
termination was tied to his exercise of any right afforded to him by the workers’ compensation
statute, I will grant defendant’s motion for summary judgment on Count 4.

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Discrimination on the basis of perceived disability in violation of the ADA and CFEPA
(Counts 3 and 6)
Finally, plaintiff alleges that defendants discriminated against him because they
perceived him to be disabled, in violation of the ADA and CFEPA, which are analyzed under the
same burden-shifting legal framework. See McMillan v. City of N.Y., 711 F.3d 120, 125 (2d Cir.
2013); Stoffan v. S. New Eng. Tel. Co., 4 F. Supp. 3d 364, 372 n.2 (D. Conn. 2014).
A plaintiff may establish a prima facie case of perceived disability discrimination if he
can show by a preponderance of the evidence that: (1) his employer is subject to the
ADA/CFEPA; (2) he was perceived to be disabled within the meaning of the ADA/CFEPA; (3)
he was otherwise qualified to perform the essential functions of his job, with or without
reasonable accommodation; and (4) he suffered adverse employment action because of his
perceived disability. See Stoffan, 4 F. Supp. 3d at 372 n.2. An individual is regarded as disabled
if he has “an actual or perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). If the perceived
impairment is objectively transitory and minor, such as with an actual or expected duration of six
months or less, an individual may not be perceived as disabled. See 42 U.S.C. § 12102(3)(B);
Percoco v. Lowe’s Home Centers, LLC, 2015 WL 5050171, at *2 (D. Conn. 2015).5
Two physical impairments, each of which required intensive surgery, affected plaintiff
during his employment: his shoulder injury and his back injury. He injured his shoulder on

The definition of disability under CFEPA is regarded as broader in scope than the ADA’s definition of
disability. See DeAngelo v. Yellowbook, Inc., 105 F. Supp. 3d 166, 180 (D. Conn. 2015); Conn. Gen. Stat. § 46a51(15) (“any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury,
organic processes or changes or from illness”). I have no reason to believe that, under CFEPA, the standard for
being regarded-as disabled is any less broad when compared to its ADA counterpart. See Desrosiers v. Diageo N.
Am., Inc., 314 Conn. 773, 794–96 (2014) (summary judgment inappropriate for regarded-as disabled claim where
defendant might have terminated plaintiff immediately after she notified defendant of need for surgery, and evidence
otherwise revealed that defendant perceived plaintiff’s medical condition to be worse than it was).
5

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September 11, 2012, but commenced his workers’ compensation leave on November 27, 2012.
Prior to plaintiff’s return to work in April 2013, Place acknowledged the severity and duration of
plaintiff’s shoulder impairment, commenting “Who is to say he is [not] going to lift something
the wrong way then we are back to square one.” Doc. #68-19 at 2. Plaintiff’s shoulder
impairment persisted through April 22, 2013, when he remained on light duty, Doc. #68-21 at 2,
and likely through at least May 30, 2013. See Doc. #68-23 at 2 (plaintiff evaluated on his
performance of light-duty tasks). After this over 6-month-long shoulder injury, plaintiff then
suffered from a back injury that impacted him from mid-June through September of that year, if
not later. Plaintiff has therefore raised a genuine issue of material fact of whether his
impairments lasted long enough to fall outside the transitory-and-minor exception.
After consideration of defendant’s stated non-discriminatory reason for termination—
plaintiff’s poor performance—and recognizing that the evidence shows that plaintiff’s poor
performance was not the real reason he was terminated, I conclude that plaintiff has raised a
triable issue of fact as to whether defendant’s proffered reason for his termination was a
“pretext” for disability discrimination. See Cortes v. MTA New York City Transit, 802 F.3d 226,
231 (2d Cir. 2015). When plaintiff was to return from his second leave, his new supervisor
immediately expressed strong opinions about not allowing plaintiff to return until his
impairments were gone. See Doc. #68-19 at 2 (“I think we are playing with fire if he comes back
without a 100 % clearance”). When plaintiff attempted to return from his third leave for his back
injury, defendant second-guessed plaintiff’s doctor’s certifications, and insisted that he be
evaluated by defendant’s doctors, which no witness could explain, since that type of request is
reserved only for employees who are injured on the job. See Doc. #68-10 at 30 (“We don’t send

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Concentra to team members that are injured unless it’s at work.”); Doc. #68-11 at 24 (“We do
not do that.”).
The evidence of defendant’s concerns about plaintiff’s physical impairments, coupled
with the other evidence plaintiff has advanced—defendant’s shifting reasons for termination,
Place’s criticism of plaintiff’s work performance before he had even had a chance to be his
supervisor, plaintiff’s increased job responsibilities, and the fact that his position was open when
he attempted to return to that position—raises a triable issue of whether plaintiff was terminated
because he was regarded as disabled, and because defendants no longer wished to worry about a
perpetually physically restricted employee. I will deny summary judgment on these two counts
of disability discrimination.
CONCLUSION
Defendant’s motion for summary judgment (Doc. #57) is GRANTED with respect to
Count 1 in part (FMLA retaliation), and Counts 2, 4, and 5; and DENIED with respect to Count
1 in part (FMLA interference), and Counts 3 and 6.
It is so ordered.
Dated at New Haven, Connecticut, this 27th day of March 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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