Presumey v. Education et al

Filing 82

ORDER denying 74 defendant's motion for judgment as a matter of law or in the alternative, for a new trial pursuant to Rule 59. See attached ruling. Signed by Judge Donna F. Martinez on 2/7/18. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELIZABETH PRESUMEY,

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:
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Plaintiff,
v.
TOWN OF GREENWICH
BOARD OF EDUCATION,
Defendant.

No. 3:15cv278(DFM)

RULING ON POST-VERDICT MOTIONS
The plaintiff, Elisabeth Presumey, brought this employment
discrimination action against the Board of Education for the Town
of Greenwich, Connecticut, alleging that it failed to accommodate
her disability in violation of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq. and Connecticut Fair Employment
Practices Act ("CFEPA"), Conn. Gen. Stat. § 46a-51 et seq.
#55.)

(Doc.

After a day and half trial, a jury returned a verdict in the

plaintiff's favor.

The defendant challenges the jury's verdict as

against the weight of the evidence and moves for judgment as a
matter of law pursuant Fed. R. Civ. P. 50 or in the alternative,
for a new trial pursuant to

Fed. R. Civ. P. 59.

(Doc. #74.)

For

the reasons set forth below, the motion is denied.
I.

Standard of Review
A.

Motion for Judgment as a Matter of Law

Judgment

as

a

matter

of

law

pursuant

to

Rule

50

"is

appropriate only if [the court] can conclude that, with credibility
assessments made against the moving party and all inferences drawn

against the moving party, a reasonable juror would have been
compelled to accept the view of the moving party."

Warren v.

Pataki, 823 F.3d 125, 139 (2d Cir.), cert. denied sub nom. Brooks
v. Pataki, ––– U.S. ––––, 137 S.Ct. 380, 196 L.Ed.2d 300 (2016)
(alterations and internal quotation marks omitted).

"A Rule 50

motion may only be granted if 'there exists such a complete absence
of evidence supporting the verdict that the jury's findings could
only have been the result of sheer surmise and conjecture, or the
evidence in favor of the movant is so overwhelming that reasonable
and fair minded [persons] could not arrive at a verdict against
[it].'"

Id.

B.

(internal quotation marks and citations omitted)

Motion for a New Trial

"A less stringent standard applies to a motion for a new
trial."

Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970

(2d Cir. 1987).

"When a party challenges a verdict under Fed. R.

Civ. P. 59 on the ground that it was against the weight of the
evidence, a court may grant the motion only if 'the verdict is
(1) seriously erroneous or (2) a miscarriage of justice.'" Nielsen
v. Van Leuven, 3:15cv1154(MPS), 2018 WL 488218, at *2 (D. Conn.
2018) (quoting Raedle v. Credit Agricole IndoSuez, 670 F.3d 411,
418 (2d Cir. 2012)).

On a motion for a new trial pursuant to Rule

59, "the court may weigh the evidence and the credibility of
witnesses

and

need

not

view

the

favorable to the verdict winner."

2

evidence

in

the

light

most

ING Global v. United Parcel

Serv. Oasis Supply Corp., 757 F.3d 92, 99 (2d Cir. 2014) (internal
quotation marks omitted).
their

ability

to

weigh

However, trial judges "must exercise
credibility

with

caution

and

great

restraint, as a judge should rarely disturb a jury's evaluation of
a witness's credibility, and may not freely substitute his or her
assessment of the credibility of witnesses for that of the jury
simply because the judge disagrees with the jury."
Credit

Agricole

IndoSuez,

670

F.3d

411,

418

(2d

Raedle v.
Cir.

2012)

(internal quotation marks and citations omitted); see also ING
Global, 757 F.3d at 99 ("[A] high degree of deference is accorded
to the jury's evaluation of witness credibility, and . . . jury
verdicts should be disturbed with great infrequency."); 11 Charles
Alan Wright et al., Federal Practice and Procedure

§ 2806 (3rd ed.

2012)("The mere fact that the evidence is in conflict is not enough
to set aside the verdict.

Indeed the more sharply the evidence

conflicts, the more reluctant the judge should be to substitute his
judgment for that of the jury.")
Because the standard for a new trial is less stringent than
for judgment as a matter of law, "[c]ourts address a new trial
first when it is based on the same issue as the motion for judgment
as a matter of law because evidence sufficient to withstand a new
trial challenge will be sufficient to withstand a motion for
judgment as a matter of law."

Wilhite v. Shelby Cty. Gov't, No.

13-2143, 2015 WL 11017959, at *8 (W.D. Tenn. Dec. 28, 2015)

3

(quotation marks and citations omitted).
II.

Background
From 2008 until 2012, the plaintiff was employed by the

defendant

as

a

professional

education students.

assistant

working

with

special

In November 2011, the plaintiff injured her

left shoulder at work.

She requested that she be put on "light

duty" pursuant to her physician's instructions.

The defendant

responded that there was no light duty work assignment in that job
class and ultimately terminated the plaintiff's employment on the
grounds that she "ha[s] medical restrictions rendering [her] unable
to perform the core functions of [her] job."

(Pl's Ex. 36

Termination letter.) The plaintiff brought suit, alleging that the
defendant failed to provide her a reasonable accommodation for her
disability.
"Discrimination in violation of the ADA includes, inter alia,
not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a
disability."
2017).

To

Sheng v. M&TBank Corp., 848 F.3d 78, 86 (2d Cir.
prevail

on

her

failure-to-accommodate

claim,

the

plaintiff was required to prove by a preponderance of the evidence
that:
(1) [her] employer is subject to the ADA; (2) [she] was
disabled within the meaning of the ADA; (3) [she] was
otherwise qualified to perform the essential functions of

4

[her] job, with or without reasonable accommodation;[1]
and (4) [she] suffered adverse employment action because
of [her] disability.[2]
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013).
The defendant stipulated to the first and fourth factors but
contested the second and third factors.

At trial, as here, the

parties focused on the third element and specifically the essential
functions of a professional assistant.

As to this, the defendant

argued that lifting, toileting and feeding students with special
needs are essential functions of the job that the plaintiff could
not perform.

From this premise, the defendant asserted that the

plaintiff was not qualified to perform the essential functions of
her job, with or without reasonable accommodation.

The plaintiff

agreed that she could not perform these functions but claimed that
they were not essential functions within the meaning of the statute

1

"The third element of a reasonable accommodation claim raises
three distinct issues — (1) what the essential functions of the job
are; (2) whether an accommodation exists; and (3) whether the
proffered accommodation is reasonable." Nazario v. Promed Pers.
Servs. NY Inc., No. 15 CIV. 6989 (LGS), 2017 WL 2664202, at *4
(S.D.N.Y. June 19, 2017).
"[D]etermination of the 'essential
functions' of a particular position is important because 'an
employer is not required to accommodate an individual with a
disability by eliminating essential functions from the job.'"
Young v. Cent. Square Cent. Sch. Dist., 213 F. Supp. 2d 202, 213
(N.D.N.Y. 2002) (quoting Borkowski v. Valley Cent. Sch. Dist., 63
F.3d 131, 140 (2d Cir. 1995)).
2

As indicated, the plaintiff brought claims under the ADA and
CFEPA. "While CFEPA defines disability more broadly than the ADA,
the ADA and CFEPA apply the same standards for reasonable
accommodation." Green v. Cellco P'ship, 218 F. Supp. 3d 157, 167
(D. Conn. 2016).
5

and that she could perform her job with reasonable accommodation,
that is, light duty.

The jury agreed, finding that the plaintiff

had proven by a preponderance of the evidence that (1) as to the
second factor, the plaintiff was disabled within the meaning of the
CFEPA and ADA; and (2) as to the third factor, she could perform
the essential functions of her job with or without reasonable
accommodation. (Doc. #71, Verdict Form.)
III. Discussion
A.

Essential Functions

In the pending motion, the defendant argues that the jury
wrongly concluded that the plaintiff could perform the essential
functions of her job.

The defendant asserts there is "no question

that lifting, toileting and feeding students with special needs are
essential

functions

plaintiff

was

plaintiff's
reasonable

of

unable

proposed
because

an

functions from a job.

the
to

job";
perform

accommodation
employer

is

it

is

undisputed

that

the

these

functions;

and

the

was

not

of
not

"light

duty"

required

to

eliminate

(Doc. #75 at 4.)

Essential functions are "the fundamental job duties of the
employment position." 29 C.F.R. § 1630.2(n).
Determining the essential functions of a position
requires a fact-specific inquiry into both the employer's
description of a job and how the job is actually
performed in practice. . . . Relevant factors include,
among other things, the employer's judgment, written job
descriptions, the amount of time spent on the job
performing the function, the mention of the function in
a collective bargaining agreement, the work experience of
6

past employees in the position, and the work experience
of current employees in similar positions.
Snowden v. Trustees of Columbia Univ., 612 F. App'x 7, 9 (2d Cir.
2015).

"[C]onsiderable deference" is given "to an employer's

judgment regarding what functions are essential for service in a
particular position." Stevens v. Rite Aid Corp., 851 F.3d 224, 229
(2d Cir.), cert. denied, 138 S. Ct. 359 (2017) (quotation marks and
citations omitted.)

However, "it is only one of the many factors

a court must consider."

Lewis v. Livingston Cty. Ctr. for Nursing

& Rehab., 30 F. Supp. 3d 196, 208 (W.D.N.Y. 2014).
listed factor will be dispositive."
"Courts

must

conduct

a

"[N]o one

Stevens, 851 F.3d at 229.

fact-specific

inquiry

into

both

the

employer's description of a job and how the job is actually
performed in practice."

Id.

See Lewis, 30 F. Supp. 3d at 209

(courts must make an inquiry "into whether the employer actually
requires all employees in the particular position to perform the
allegedly essential function.")

"[U]ltimately, . . . whether a

task constitutes an essential function depends on the totality of
the circumstances."

Rodal v. Anesthesia Grp. of Onondaga, P.C.,

369 F.3d 113, 120 (2d Cir. 2004).
these principles.

The jury was instructed on all

(Doc. #70.)

In support of its argument that lifting, toileting and feeding
students were essential functions of the job of a professional
assistant, the defendant points to the testimony of Regina Williams
and Erica Mahoney, Human Resource personnel; William McCormick, a
7

union representative; and Eileen Dailey and Gary Pishkur, who were
employed by the defendant as professional assistants, all of whom
testified that lifting and toileting were essential functions of
the job of a professional assistant and that light duty did not
exist and was not offered to any professional assistants.

The

defendant also cites to documentary evidence introduced at trial
including the job description and handbook which detailed the many
duties of a professional assistant, including "provid[ing] for the
physical needs of students including lifting and toileting, us[ing]
mechanical lift equipment and transfer aids as needed including the
ability to transfer in wheelchairs." (Def's Ex. 11, 12.)
However, the defendant's evidence in support of its argument
as to the essential functions of the job was not uncontroverted.
The plaintiff testified that the students with whom professional
assistants work have a range of disabilities. (Tr. 5/16/17 at 36.)
Not all students required lifting. (Id.)

Some required only

classroom support. Significantly, the plaintiff testified that the
defendant did not require all professional assistants to lift and
toilet

students

-

these

professional assistants.

functions

were

waived

(Tr. 5/16/17 at 36.)

for

certain

Specifically, both

the plaintiff and other professional assistants were given "light
duty," that is, assigned to students who did not require lifting or
being pushed in a wheelchair.

(Tr. 5/16/17 at 36.)

The plaintiff testified that on at least two occasions, she

8

was placed on light duty as a result of injuries she sustained on
the job.

In 2009, she injured her hip after lifting a student.

(Tr. 5/16/17 at 34.)

The defendant sent her to a particular clinic

to which it referred all its employees.

(Tr. 5/16/17 at 35.)

The

doctor determined that the plaintiff should be put on light duty
and wrote a report to that effect.

(Tr. 5/16/17 at 36-37.)

The

clinic sent a copy of the doctor's report to the principal of the
school where the plaintiff was working and to Human Resources.
(Tr. 5/16/17 at 37.)

When the plaintiff returned to work, the

defendant placed her on light duty, assigning her to students who
needed only classroom instructional support.

(Tr. 5/16/17 at 36.)

The plaintiff remained on light duty for some months. (Tr. 5/16/17
at 38.)
In 2011, she sustained another on-the-job injury and was seen
at the clinic.

When she returned to work, the defendant again

placed her on light duty.

(Tr. 5/16/17 at 47.)

The plaintiff testified that there were other professional
assistants who were not required to lift students. (Tr. 5/16/17 at
59; pl's ex. 7.)

One co-worker named Eileen Dailey, who had the

same job as the plaintiff, was not required to do so.
at 59.)

(Tr. 5/16/17

The plaintiff testified that Ms. Dailey's left arm and leg

were affected by paralysis and that as a result, she was on
"permanent light duty" because "you cannot push a wheelchair with
one hand . . . ." (Tr. 5/16/17 at 59.)

9

The plaintiff called Ms. Dailey as a witness in her case-inchief.

Ms. Dailey testified that she had "limited use of her left

arm" and "foot drop," a gait abnormality, as to her left foot.
(Tr. 5/16/17

at

99-100.)

She

denied

having

any

substantial

limitations of her arm, asserting that it was a "useful arm" and
that only her "fine motor skills" were affected. (Tr. 5/16/17 at
101.)

Ms.

Dailey

testified

students, even heavy students.

that

she

could

lift

and

toilet

She said that she was not on light

duty and did not know of any professional assistants who were on
light duty.

(Tr. 5/16/17 at 101.)

As the plaintiff argues, the jury was permitted to assess Ms.
Dailey's testimony in light of their own observations of her.
During summation, plaintiff's counsel urged the jury to credit
their observations of Ms. Dailey's physical infirmities, exhorting
that "you saw with your own eyes what the truth is about that
lady."

(Tr. 5/17/17 at 50.)

Counsel underscored that Ms. Dailey

had an obvious foot drop, clearly walked with difficulty, and did
not move her left arm at all. (Tr. 5/17/17 at 48-50.)
Even under the more relaxed review standards of a motion for
new trial pursuant to Rule 59, the jury's result was neither
"seriously erroneous" nor "a miscarriage of justice."

Raedle v.

Credit Agricole Indosuez, 670 F.3d 411, 417–18 (2d Cir. 2012).

On

this record, the jury reasonably could have concluded that lifting
and toileting students were not essential functions of the job.

10

The resolution of these issues at trial was a quintessential jury
credibility

issue.

Although

the

defendant

urges

that

the

plaintiff's testimony was not credible (doc. #75 at 5), on a motion
for a new trial, "the jury is owed substantial deference in making
credibility assessments." McKinney v. Cent. Hudson Gas & Elec.
Corp., 632 F. App'x 37, 38 (2d Cir. 2016).

See Raedle v. Credit

Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012) ("Where the
resolution

of

the

issues

depended

on

an

assessment

of

the

credibility of the witnesses, it is proper for the court to refrain
from setting aside the verdict and granting a new trial.")
This case is distinguishable from Stevens v. Rite Aid Corp.,
851 F.3d 224 (2d Cir. 2017), upon which the defendant heavily
relies.

In that case, the plaintiff pharmacist suffered from

"trypanophobia," fear of needles. He was terminated for failing to
comply with a company policy requiring pharmacists to administer
flu vaccines.

He brought suit alleging violation of the ADA.

After a jury found in his favor, the district court denied the
defendant's post-trial motion for judgment as a matter of law.
appeal, the

Second

Circuit

reversed

on

the

grounds

that

On
the

evidence "compel[ed] a finding that immunization injections were an
essential job requirement for Rite Aid pharmacists."
This record, however, is different.

Id. at 229.

The evidence adduced at

trial does not "compel" a finding that lifting and toileting
students were essential functions.

11

To the contrary, there was

evidence from which a jury could reasonably conclude that these
tasks were not essential functions because, in practice, the
defendant did not require all professional assistant to perform
them.
B.

McDonnell Douglas

The defendant next argues that even assuming the plaintiff
demonstrated that she could perform the essential functions of her
job, the defendant is nonetheless entitled to relief because the
plaintiff "has not sustained her McDonnell Douglas burden" in that
"she has not even attempted to prove that the defendant was
motivated by prohibited discrimination."3

(Doc. #75 at 9.)

"Claims alleging disability discrimination in violation of the
ADA

are

subject

to

the

burden-shifting

analysis

originally

established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)."
McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir.
2009).

"A plaintiff must establish a prima facie case; the

3

The court notes that insofar as the defendant seeks judgment
as a matter of law, this argument was not made in the defendant's
Rule 50(a) motion. (Tr. 5/16/17 at 127.) In a post-trial Rule
50(b) motion, "the movant may not add grounds that were not raised
in the previous motion." Lee v. Onesource Info. Servs., Inc., No.
3:04cv2143(AWT), 2009 WL 10687861, at *1 (D. Conn. Mar. 4, 2009).
See Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001)(A posttrial motion "is limited to those grounds that were 'specifically
raised in the prior motion for [JMOL]'; the movant is not permitted
to add new grounds after trial.")(quoting McCardle v. Haddad, 131
F.3d 43, 51 (2d Cir. 1997)). The court nonetheless addresses the
argument because it is also the basis for the defendant's request
for a new trial pursuant to Rule 59.
12

employer must offer through the introduction of admissible evidence
a legitimate non-discriminatory reason for the discharge; and the
plaintiff must then produce evidence and carry the burden of
persuasion that the proffered reason is a pretext." Id.
The

defendant's

argument

is

inapposite.

Under

the

circumstances of this case, as in the case of McMillan v. City of
New York, 711 F.3d 120, 129 (2d Cir. 2013), the burden-shifting
analytical framework — i.e., asking whether the defendant could
show a nondiscriminatory reason for the complained-of conduct, and
whether

the

plaintiff

could,

in

turn,

demonstrate

proffered reason was pretextual — is inapplicable.

that

any

As the Second

Circuit explained:
While the burden-shifting McDonnell Douglas analysis is
useful in most discrimination cases, it is not helpful
here. When the reason given by the employer for the
adverse employment action is unrelated to the employee's
disability, the McDonnell Douglas approach can be used to
weed out non-viable claims of discrimination based on
circumstantial evidence. When the parties agree that the
employer complains of conduct that is the direct result
of the employee's disability, however, there is no need
to evaluate whether the employer's adverse employment
action made in response to that conduct is pretextual. .
. . [I]nstead, [the plaintiff] need only demonstrate
that, with reasonable accommodations, he could have
performed the essential functions of h[er] job.
McMillan, 711 F.3d at 129.
Here, it is undisputed that the plaintiff was unable to lift
and

toilet

students

because

of

her

disability

and

that

the

defendant terminated her employment as a result. The defendant did
not dispute that the plaintiff suffered an "adverse employment
13

action because of her disability." (Jury Charge, tr. 5/17/17 at
75.)

Therefore,

as

in

McMillan,

the

plaintiff

"need

only

demonstrate that, with reasonable accommodations, [s]he could have
performed the essential functions of h[er] job."

McMillan, 711

F.3d at 129, which the jury reasonably concluded that she proved by
a preponderance of the evidence.
III. Conclusion
For these reasons, the defendant's motion for judgment as a
matter of law or in the alternative, motion for a new trial (doc.
#74) is denied.4
SO ORDERED at Hartford, Connecticut this 7th day of February,
2018.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

4

"Since the standard for granting a new trial is lower than
that for entering judgment as a matter of law, it is clear that if
a new trial is not warranted, entry of judgment as a matter of law
would be improper." Markovich v. Bell Helicopter Textron, Inc.,
805 F. Supp. 1231, 1235 (E.D. Pa.), aff'd, 977 F.2d 568 (3d Cir.
1992). Accordingly, because I conclude that a new trial is not
warranted, I also decline to enter judgment as a matter of law.
14