Blodgett v. 22 South Street Operations, LLC
Filing
88
ORDER granting 70 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 7/8/2019. (Washington, Gregory)
`UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JENNIFER BLODGETT,
Plaintiff,
v.
No. 3:17-cv-766 (VAB)
22 SOUTH STREET OPERATIONS,
Defendant.
RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT
Jennifer Blodgett (“Plaintiff”) has sued 22 South Street Operations, LLC (“22 South
Street Operations”) under the Family Medical Leave Act (“FMLA”), for both interference and
retaliation, and the Americans with Disabilities Act (“ADA”), for failure to accommodate and
retaliation, as well under the Connecticut Fair Employment Practices Act (“CFEPA”), for
disability discrimination and retaliation. Complaint, ECF No. 1, at 5–12.
22 South Street Operations now has moved for summary judgment in this case. Motion
for Summary Judgment, ECF No. 70.
For the following reasons, the Court GRANTS 22 South Street Operation’s motion for
summary judgment as to the ADA and FMLA claims.
The Court also declines to exercise supplemental jurisdiction over Ms. Blodgett’s state
law claims and therefore directs the Clerk of Court to close this case.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Factual Allegations
22 South Street Operations owns and operates Fox Hill Center, a 150-bed skilled nursing
facility with 148 employees in Rockville, Connecticut. Commission on Human Rights and
Opportunities June 6, 2016 Letter, ECF No. 78-11; Compl. at ¶ 14 (“Defendant owns and
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operates the Fox Hill Center located at 1253 Hartford Turnpike, Vernon, Connecticut 06066”).
Licensed by the Connecticut Department of Public Health, Fox Hill Center must adhere to
federal and state nursing requirements and federal guidelines on Medicare and Medicaid funds.
Commission on Human Rights and Opportunities June 6, 2016 Letter, ECF No. 78-11.
In December 2008, Fox Hill Center hired Jennifer Blodgett to work as a Licensed
Practical Nurse/management-level Charge Nurse. Affidavit of Gaye Cassells, ECF No. 71-1
(“Cassells Aff.”), at ¶ 3. In that role, Ms. Blodgett’s essential job functions were to: “Directly
provide safe care and nursing services for elderly, infirmed patients; Supervise and coordinate
nursing personnel in providing direct patient care; Develop and implement patient care plans to
ensure patient safety and comfort; Assist physicians in examination and patient care.” Id. In
addition, Ms. Blodgett had to “[c]ontribute to an environment that is respectful, team-oriented,
and responsive to the concerns of staff, patients and families.” Id. at ¶ 5.
In March 2012, Fox Hill Center met with Ms. Blodgett after she allegedly “failed to
appropriately handle a ‘combative’ dementia patient.” Id. at ¶ 6; Ex. 2 to Ex. A, ECF No. 71-1.
In October 2014, Fox Hill Center disciplined Ms. Blodgett for “‘verbally abusing’ at least
one dementia patient.” Cassells Aff. at ¶ 9. After investigating the incident, Fox Hill Center
“concluded that Plaintiff had ‘yelled at least one resident.’” Id. at 10; Ex. 3 to Ex. A, ECF
No. 71-1, at 1. Fox Hill Center contends that it “clearly instructed Plaintiff that she would be
terminated if any similar any similar instances occurred in the future.” Cassells Aff. at ¶ 11;
Ex. 3 to Ex. A, ECF No. 71-1, at 2.
On April 20, 2015, Ms. Blodgett received a performance evaluation, noting that, at that
time, she “exceeds expectations.” Ex. P5, ECF No. 78-8.
On December 16, 2015, Fox Hill Center fired Ms. Blodgett’s son, who also worked at
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Fox Hill Center in the kitchen area, for performance issues. Cassells Aff. at ¶¶ 13–14. The
Human Resources Department asked Gaye Cassells to let Ms. Blodgett know of her son’s
termination. Id. at ¶ 16. After Ms. Cassells told Ms. Blodgett of her son’s termination, Ms.
Blodgett allegedly became enraged and began yelling profanity before storming out of the room.
Id. at ¶¶19–22.
According to staff accounts, Ms. Blodgett then threatened employees, cursed at them, and
pushed over a cart in the kitchen before leaving the facility. Id. at ¶¶ 25, 27; Exs. 4 & 5 to Ex. A,
ECF No. 71-1. Ms. Blodgett does not recall what happened after Ms. Cassells told her that Fox
Hill Center fired her son. Jennifer Blodgett September 14, 2018 Deposition, Ex. D, ECF
No. 71-1 (“Blodgett September 14, 2018 Dep.”), at 72:10–74:14.
Later that day, Nancy Pagani, Ms. Blodgett’s supervisor, called Ms. Blodgett to inform
her of her suspension pending an investigation. Cassells Aff. at ¶ 28. Ms. Blodgett does not
recall Ms. Pagani telling her about her suspension. Blodgett September 14, 2018 Dep. at 94:6–
10. Ms. Blodgett alleges that she only learned about the suspension days later, when Fox Hill
Center sent her a letter. Id. at 97:17–20; see also December 16, 2015 Suspension Letter, ECF
No 78-16.
That same day, Ms. Blodgett contacted Ms. Cassells to request FMLA paperwork, which
Ms. Cassells provided to her. Cassells at ¶ 29.
On December 17, 2015, Ms. Blodgett submitted an employee request for leave of
absence, citing continuous disability under the FMLA. Employee Request for Leave of Absence,
ECF No. 78-14.
On December 18, 2015, Ms. Blodgett submitted a partially completed FMLA application,
and then supplemented the application days later with a medical certification from Dr. Serge
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Poulin. Affidavit of Stephanie Willis, ECF No. 71-1 (“Willis Aff.”), at ¶ 4; Ex. 1 to Ex. B, ECF
No. 71-1, at 4. Ms. Blodgett submitted her FMLA application to “Fox Hill’s out-of-state
corporate leave management division,” but allegedly “[n]o one from Fox Hill reviewed
plaintiff’s application for FMLA leave, or rendered any decision to her application.” Cassells
Aff. at ¶ 30.
According to the Fox Hills Center Leave Analyst, “Plaintiff’s application was reviewed
by a Leave Specialist in conjunction with a Nurse Consultant” and “the Nurse Consultant
determined that the medical certification Plaintiff submitted was insufficient, as it failed to
certify a serious health condition sufficient to warrant FMLA leave.” Willis Aff. at ¶¶ 6–7.
Because of the failure to submit a proper medical certification, the Leave Analyst denied Ms.
Blodgett’s FMLA leave application. Id. at ¶ 8.
Ten days later, a Leave Specialist retroactively granted Ms. Blodgett’s personal leave of
absence from December 17, 2015 to January 9, 2016. Id. at ¶ 9; Ex. P12, ECF No. 78-15.
On January 8, 2016, Dr. Poulin cleared Ms. Blodgett to return to work. Willis Aff.
at ¶ 10.
According to Ms. Blodgett, she spoke with Nancy Pagani two to three weeks before her
termination about feeling depressed because of deaths at the facility, but never communicated a
medical diagnosis of depression. Blodgett September 14, 2018 Dep. at 70:9–15; 86:7–87:10.
On January 11, 2016, Ray Talomona, Pam Liggins, Nancy Pagani, and Gaye Cassells met
with Ms. Blodgett to complete the investigation into her behavior on December 16, 2015.
Cassells Aff. at ¶¶ 32, 33.
After that meeting, Ms. Liggins, Ms. Pagani, and Ms. Cassells “decided to terminate
Plaintiff’s employment due to her unprofessional conduct, and messaged that to Plaintiff,
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effective immediately.” Id. at 34.
On July 7, 2016, Ms. Blodgett applied for Social Security disability insurance benefits,
and reported a disabling depression, anxiety, and post-traumatic stress disorder. Id. She also said
that she was disabled since December 16, 2015. Ex. C, ECF No. 71-1; Blodgett September 14,
2018 Dep. at 131:19–21.
On June 28, 2018, the Social Security Administration rendered a fully favorable decision
on Ms. Blodgett’s disability, noting that Ms. Blodgett “has been under a disability as defined in
the Social Security Act since December 16, 2015, the alleged onset date of disability.” Notice of
Decision, ECF No. 71-1.
Though the Social Security Administration declared Ms. Blodgett disabled, Ms. Blodgett
believed that she could return to work a full shift on January 15, 2016. February 11, 2019
Deposition of Jennifer Blodgett, ECF No. 71-1, at 19:3–6. Ms. Blodgett also allegedly never
requested any hours or duty accommodations from anyone at Fox Hill Center. Id. at 23:4–13.
B.
Procedural History
On May 9, 2017, Ms. Blodgett filed her Complaint against 22 South Street Operations.
Complaint, ECF No. 1.
On July 12, 2017, 22 South Street Operations responded to the Complaint with an
Answer and affirmative defenses. Answer to Complaint with Affirmative Defenses, ECF No. 13.
On October 5, 2018, the Court held a post-discovery telephonic status conference. Minute
Entry, ECF No. 52.
On March 29, 2019, 22 South Street Operations moved for summary judgment in this
case. Motion for Summary Judgment, ECF No. 70.
On May 20, 2019, Ms. Blodgett objected to 22 South Street Operation’s motion for
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summary judgment. Objection re Motion for Summary Judgment, ECF No. 78.
On June 28, 2019, the Court held a hearing on 22 South Street Operation’s motion for
summary judgment.
II.
STANDARD OF REVIEW
Motions for summary judgment are granted when the record shows no genuine issue 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 initial burden of showing the absence of a genuine dispute of
material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving party may
defeat the motion by producing specific facts to prove that there is a genuine issue of material
fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
“[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Id. at 247–48 (emphasis in original). The moving party,
however, may satisfy this burden by pointing to an absence of evidence to support the nonmoving party’s case. See PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per
curiam).
When documentary evidence and sworn affidavits supporting a motion for summary
judgment “demonstrate [] the absence of a genuine issue of material fact,” the non-moving party
must do more than vaguely assert the existence of some unspecified disputed material facts or
“rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health
Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted).
The party opposing the motion for summary judgment then “must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.; see also
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Atkinson v. Rinaldi, 3:15-cv-913 (DJS), 2016 WL 7234087, at *1 (D. Conn. Dec. 14, 2016)
(holding non-moving party must present evidence that would allow reasonable jury to find in his
favor to defeat motion for summary judgment); Pelletier v. Armstrong, 3:99-cv-1559 (HBF),
2007 WL 685181, at *7 (D. Conn. Mar. 2, 2007) (“[A] nonmoving party must present
‘significant probative evidence to create genuine issue of material fact.’” (quoting Soto v.
Meachum, 3:90-cv-270 (WWE), 1991 WL 218481, at *6 (D. Conn. Aug. 28, 1991)).
A court must view any inferences drawn from the facts in the light most favorable to the
party opposing the summary judgment motion. Dufort v. N.Y.C., 874 F.3d 338, 347 (2d Cir.
2017). A court will not credit conclusory allegations or denials. Brown v. Eli Lilly & Co., 654
F.3d 347, 358 (2d Cir. 2011). After drawing all inferences in favor of the non-moving party, if
the court finds that no reasonable trier of fact could find in the non-movant’s favor, the court will
find for the moving party as a matter of law and grant the summary judgment motion. See
Anderson, 477 U.S. at 248 (“summary judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”).
III.
DISCUSSION
Ms. Blodgett brings claims under both federal and state law regarding her termination.
The Court will address Ms. Blodgett’s federal claims first because, if she has no viable claims
under federal statute, the Court must then determine whether it will exercise supplemental
jurisdiction over the remaining state-law claims.
A.
Federal Law Claims
1.
The FMLA claims
The FMLA “entitle[s] employees to take reasonable leave for medical reasons, for the
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birth or adoption of a child, and for the care of child, spouse, or parent who has a serious health
condition.” 29 U.S.C. § 2601(b)(1). “The FMLA’s central provision guarantees eligible
employees 12 weeks of leave in a 1-year period following certain events: a disabling health
problem; a family member’s serious illness; or the arrival of a new son or daughter.” Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002) (citing 29 U.S.C. § 2612(a)(1)).
The FMLA further entitles the employee “to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms of employment.” 29 § 2614. And “[i]t
shall be unlawful for any employer to interfere with, restrain or deny the exercise or the attempt
to exercise any right provided” by the law. 29 U.S.C. § 2615. The law “creates a private right of
action to seek both equitable relief and money damages against any employer (including a public
agency) in any Federal or State court of competent jurisdiction should that employer interfere
with, restrain, or deny the exercise of FMLA rights.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d
161, 174 (2d Cir. 2006).
a.
FMLA Interference
To establish a prima facie FMLA interference claim, a plaintiff must show that: “(1) she
is an FMLA-eligible employee; (2) the defendant is an employer, as defined in the FMLA; (3)
she was entitled to take FMLA leave; (4) she gave notice to her employer of her intention to take
leave; and (5) she was denied FMLA benefits to which she was entitled.” Hewitt v. Triple Point
Tech., Inc., 171 F. Supp. 3d 10, 16 (D. Conn. 2016) (citing 29 U.S.C. § 2612(a)(1); Achille v.
Chestnut Ridge Transp., Inc., 584 F. App’x. 20 (2d Cir. 2014)). The Second Circuit also has
suggested that a terminated plaintiff must show that the employer “considered [the exercise of
FMLA rights] a negative factor in its decision to terminate [her].” Sista, 445 F.3d at 176.
22 South Street Operations argues that because Ms. Blodgett received twenty-five days of
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leave, an amount of time comparable to any FMLA leave, she was not “denied FMLA benefits to
which she was entitled.” See Defendant’s Memorandum of Law in Support of Motion for
Summary Judgment, ECF No. 71 (“Def.’s Mem. in Supp. of MSJ.”), at 23, 25–26. Moreover,
South Street Operations argues that there can be no FMLA interference when the denial of
FMLA leave stems from Ms. Blodgett’s failure to produce the required FMLA information—
here, Ms. Blodgett did not produce a medical certification sufficient to show that her health
issues were a serious health problem that necessitated FMLA leave. Id. at 24–25.
In response, Ms. Blodgett argues that 22 South Street Operations merely approved her
personal medical leave without mentioning any deficiencies in the FMLA application. Plaintiff’s
Objection to Defendant’s Motion for Summary Judgment, ECF No. 78 (“Pl.’s Obj. to Def.’s
MSJ.”), at 24–25. Ms. Blodgett further argues that a reasonable juror could determine that
another employee would be discouraged from taking approved medical leave. Id. at 25.
The Court disagrees.
Because Ms. Blodgett received the amount of leave she requested, 22 South Street
Operations did not prevent her from taking leave.
To the extent Ms. Blodgett’s claim rests on the notion that her FMLA certification was
denied, even after she received leave, under 29 U.S.C. § 2613(b), a sufficient certification states
“(1) the date on which the serious health condition commenced; (2) the probable duration of the
condition; (3) the appropriate medical facts within the knowledge of the health care provider
regarding the condition; . . . [and] for purposes of leave under section 2612(a)(1)(D) of this title,
a statement that the employee is unable to perform the functions of the position of the
employee.” In certain situations, an FMLA certification must “be supported by a certification
issued by the health care provider of the eligible employee.” 29 U.S.C. § 2613(a). “In a general
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sense, an employee brings an ‘interference’ claim when her employer has prevented or otherwise
impeded the employee’s ability to exercise rights under the FMLA.” Wood v. START Treatment
& Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017) (citing Graziado v. Culinary Inst. of
Am., 817 F.3d 415, 424 (2d Cir. 2016)).
22 South Street Operations denied Ms. Blodgett’s FMLA certification “due to her failure
to submit a sufficient medical certification.” Willis Aff. at ¶ 8; Cassells Aff. at ¶ 30.
After Nancy Pagani called Ms. Blodgett to inform her of her suspension, pending an
investigation, Ms. Blodgett contacted Gaye Cassells to request FMLA paperwork. Cassells Aff.
at ¶ 28–29. The following day, Ms. Blodgett submitted an incomplete employee request for leave
of absence citing continuous disability under the FMLA. Employee Request for Leave of
Absence, ECF No. 78-14.
On December 18, 2015, Ms. Blodgett submitted a partially completed FMLA application,
and supplemented it five days later with a medical certification from Dr. Serge Poulin. Willis
Aff.” at ¶ 4; Ex. 1 to Ex. B, ECF No. 71-1, at 4. According to the Fox Hills Center Leave
Analyst, “Plaintiff’s application was reviewed by a Leave Specialist in conjunction with a Nurse
Consultant” and “the Nurse Consultant determined that the medical certification Plaintiff
submitted was insufficient, as it failed to certify a serious health condition sufficient to warrant
FMLA leave.” Willis Aff. at ¶¶ 6–7. Because of the failure to submit a proper medical
certification, the Leave Analyst denied Ms. Blodgett’s FMLA leave application, but then
approved her personal leave. Id. at ¶¶ 8–9.
Because Ms. Blodgett’s employer is entitled to rely on information provided by the
certification form in making its FMLA determination and may require that request for leave be
supported with health care provider information, there was no FMLA protected activity in this
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case. See 29 U.S.C. § 2613 (“An employer may require that a request for leave . . . be supported
by a certification issued by the health care provider of the eligible employee”); 29 C.F.R. §
825.306(e) (“In all instances in which certification is requested, it is the employee’s
responsibility to provide the employer with complete and sufficient certification and failure to do
so may result in the denial of FMLA leave.”); see also Graziado, 817 F.3d at 526 (“Under the
FMLA, an employee seeking leave need not submit a medical certification unless and until one
is specifically requested by her employer.” (emphasis in original)).
Accordingly, Ms. Blodgett’s FMLA interference claim must be dismissed. 1
b.
FMLA Retaliation
To establish a prima facie case of FMLA retaliation, the Plaintiff must show “(1)
participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an
adverse employment action; and (4) a causal connection between the protected activity and the
adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005). “If the plaintiff makes out a prima facie case, the defendant must demonstrate a
legitimate, non-discriminatory reason for its actions; if the defendant does so, the plaintiff must
then show that defendant's proffered explanation is pretextual.” Graziado, 817 F.3d at 429
(citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)).
At this stage, “the court’s role in evaluating a summary judgment request is to determine
only whether proffered admissible evidence would be sufficient to permit a rational finder of fact
to infer a retaliatory motive.” Jute, 420 F.3d at 173 (citing Donahue v. Windsor Locks Bd. of Fire
Comm’rs., 834 F.2d 54, 48 (2d Cir. 1987)). Retaliation claims thus proceed in three parts. First,
To the extent that Ms. Blodgett’s FMLA interference claim is based on the refusal to rehire her when she sought to
return from leave, this argument is no different from her FMLA retaliation claim, which is analyzed below, and also
dismissed.
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“[i]f a plaintiff sustains the initial burden, a presumption of retaliation arises.” Id. Second, “the
onus falls on the employer to articulate a legitimate, non-retaliatory reason for the adverse
employment action.” Id. (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.
1998)). Third, “once an employer offers such proof, the presumption of retaliation dissipates and
the employee must show that retaliation was a substantial reason for the adverse employment
action.” Id. (citing Fields v. N.Y. State Office of Mental Retardation & Developmental
Disabilities, 115 F.3d 116, 120–21 (2d Cir. 1997)).
22 South Street Operations argues that Ms. Blodgett cannot meet her burden for a prima
facie case of retaliation because she did not exercise a right protected by the FMLA and there
were legitimate non-retaliatory reasons for Ms. Blodgett’s termination. Def.’s Mem. in Supp. of
MSJ. at 28–29. Because Ms. Blodgett’s FMLA leave was never approved for lack of sufficient
medical certification, 22 South Street argues that she cannot establish the first element of an
FMLA retaliation claim. Id.
Even if she could establish a prima facie case, 22 South Street asserts that Ms. Blodgett’s
unprofessional conduct provided a legitimate non-retaliatory reason for her termination. Id. at 29.
In response, Ms. Blodgett argues that she has properly exercised FMLA rights, was
legally disabled, and terminated in a way that creates an inference of retaliatory intent because of
the temporal proximity to her exercise of an FMLA right. Pl.’s Obj. to Def.’s MSJ. at 25. She
also reiterates that her employer allowed other employees to continue working with similar
conduct that caused her to lose her job. Id. at 26.
In reply, 22 South Street Operations argues that the deposition of Pam Liggins shows that
two of the three employees Ms. Blodgett uses for her FMLA retaliation claim took FMLA leave
and are still working at Fox Hill Center. Reply to Response, ECF No. 81, at 8–9. Moreover, 22
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South Street argues that the employees cited were not similar in all material respects because two
had different titles and responsibilities, one was not a management level employee, and none of
the three employees engaged in the same conduct as Ms. Blodgett. Id. at 9–10. These employees
therefore are not comparisons for a similarly situated case of FMLA retaliation. Id. at 10.
The Court agrees.
As discussed above, Ms. Blodgett’s employer denied her FMLA application before any
potentially protected FMLA activity took place. Even if there was an adverse employment
action, Ms. Blodgett still must show that “a causal connection exists between the protected
activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse
employment action.” Sista, 445 F.3d at 177 (internal citations omitted) (denying leave to amend
for claims involving FMLA and ADA retaliation).
Temporal proximity can provide a basis for a causal connection. See, e.g., Donnelly v.
Greenberg Cent. Sch. Dist. No. 7, 692 F.3d 134, 152 (2d Cir. 2012) (reversing a grant of
summary judgment where plaintiff had demonstrated temporal proximity and the evidence
provided “a sufficient basis to send the question of the school’s retaliatory intent to the jury to
reach a final determination.”). But where “timing is the only basis for a claim of retaliation, and
gradual adverse job actions began well before the plaintiff had ever engaged in any protected
activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001); Sotomayor v. N.Y.C., 713 F.3d 163, 164 (2d Cir. 2013) (finding no
prima facie case of FMLA retaliation where the plaintiff began receiving negative evaluations
and letters in her file before her application for her first FMLA leave); see also Elliot-Leach v.
N.Y.C. Dep’t. of Educ., 710 F. App’x 449, 452 (2d Cir. 2017) (“Because [Plaintiff] had been
disciplined for work absences before she requested FMLA leave, and because she relies only on
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temporal proximity to suggest retaliatory intent, her retaliation claim fails.”).
Here, aside from temporal proximity, Ms. Blodgett argues that she is similarly situated to
three employees still employed at Fox Hill Center after similar conduct. But Ms. Blodgett “must
show that she was similarly situated in all material respects to the individuals with whom she
seeks to compare herself.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citation
and internal quotation marks omitted). Yet there is nothing in this record to support the necessary
showing because two of these three employees took FMLA leave and are still employed by Fox
Hill Center. See Deposition of Pamela Liggins, ECF No. 81-1, at 4:22–5:11; 7:13–8:5. And none
of them had same role, responsibilities, or engaged in the same conduct as Ms. Blodgett. See id.
9:12–23; 13:4–7; 20:4–24:20; 27:13–23. The Court therefore has no basis to find that 22 South
Street Operations terminated employees that are similarly situated to Ms. Blodgett for similar
conduct or any other admissible evidence of retaliation. See Goldfarb v. Town of W. Hartford,
474 F. Supp. 2d 356, 368 (D. Conn. 2007) (Squatrito, J.) (granting a motion for summary
judgment where the defendant “has provided no evidence from which a jury could reasonably
find that other [defendant] employees who took sick or FMLA leave were prima facie similarly
situated to [Plaintiffs]”); see also Robinson, 781 F.3d at 44 (noting that “a plaintiff may not
survive summary judgment merely by conjuring a hypothetical issue of material fact.”).
As a result, Ms. Blodgett is left with temporal proximity alone, which is insufficient at
this stage of the case to survive summary judgment. See, e.g., Zan Kwan v. Andalex Grp. LLC,
737 F.3d 834, 847 (2d Cir. 2013) (“Temporal proximity alone is insufficient to defeat summary
judgment at the pretext stage.”); El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.
2010) (“The temporal proximity of events may give rise to an inference of retaliation for the
purposes of establishing a prima facie case of retaliation under Title VII, but without more, such
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temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of
pretext.”); Elliot-Leach, 710 F. App’x 449, 452 (2d Cir. 2017) (“Because [Plaintiff] had been
disciplined for work absences before she requested FMLA leave, and because she relies only on
temporal proximity to suggest retaliatory intent, her retaliation claim fails.”)
In any event, even if Ms. Blodgett had established an adverse employment action or a
causal connection, her employer had a legitimate non-retaliatory reason for her termination: her
behavior. In March 2012 and October 2014, disciplined Ms. Blodgett for her failure to handle a
dementia patient and verbally abusing another dementia patient. Cassells Aff. at ¶¶ 6, 9–10;
Ex. 2 to Ex. A, ECF No. 71-1. After an investigation into the last incident, Fox Hill Center
“clearly instructed Plaintiff that she would be terminated if any similar any similar instances
occurred in the future.” Cassells Aff. at ¶ 11; Ex. 3 to Ex. A, ECF No. 71-1, at 2.
On December 16, 2015, Ms. Blodgett became enraged and began yelling profanity at Ms.
Cassells after being told of her son’s termination. Cassells Aff. at ¶¶19–22. According to staff
accounts, Ms. Blodgett then threatened employees, cursed at them, and pushed over a cart in the
kitchen before leaving the facility. Id. at ¶¶ 25, 27; Exs. 4 & 5 to Ex. A, ECF No. 71-1. Later that
day, Nancy Pagani, Ms. Blodgett’s supervisor, called Ms. Blodgett to inform her of her
suspension pending an investigation. Cassells Aff. at ¶ 28.
Because, “these offers of proof satisfy [Defendant]'s burden of articulating legitimate,
non-retaliatory reasons to explain the actionable claims of adverse employment action,” Jute,
420 F.3d at 180, Ms. Blodgett would have to otherwise show that there is evidence to support her
claim of retaliation. As discussed above, however, there is no such evidence.
Accordingly, Ms. Blodgett’s FMLA retaliation claim must be dismissed.
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2.
The ADA claims
The ADA defines a disability as “(A) a physical or mental impairment that substantially
limits one or more major life activities of such individual; (B) a record of such impairment; or
(C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Major life activities
“include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
To establish a prima facie case of disability discrimination, otherwise known as a failure
to accommodate under the ADA, a plaintiff must show that:
(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations.
McMillan v. N.Y.C., 711 F.3d 120, 125–26 (2d. Cir. 2013) (citing McBride v. BIC Consumer
Prods. Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir. 2009)).
The parties do not dispute that Ms. Blodgett’s disability at the time of her termination or
that the ADA is applicable to 22 South Street Operation’s institution, Fox Hill Center. But there
are disputes as to whether Ms. Blodgett put Fox Hill Center on notice of her disability or whether
Ms. Blodgett could perform the essential functions of her job as a nurse with reasonable
accommodations and that 22 South Street Operations refused to make such accommodations.
22 South Street Operations argues that because the Social Security Administration
declared Ms. Blodgett disabled and unable to work, she is not qualified to perform an essential
function of her job and no reasonable accommodation required under the ADA could have been
made for her. See Def.’s Mem. in Supp. of MSJ. at 12–14, 16.
22 South Street Operations also argues that Ms. Blodgett received the only reasonable
16
accommodation she requested—her temporary leave—and no other accommodations were
requested or practical. Id. at 14–15. Because Ms. Blodgett requested no other modifications to
hours or duties, 22 South Street argues that Ms. Blodgett cannot establish her prima facie case
for an ADA failure to accommodate claim. Id. at 15–16.
Finally, 22 South Street Operations argues that it had legitimate non-discriminatory
reasons for terminating Ms. Blodgett. Id. at 19. According to its staff, Ms. Blodgett engaged in
unprofessional and aggressive behavior toward other staff members that called for termination,
behavior unrelated to her disabling depression or anxiety. Id. at 19 –20.
In response, Ms. Blodgett argues that she can demonstrate the first three prongs of a
prima facie case for an ADA failure to accommodate claim: (1) the applicability of the ADA to
22 South Street Operations; (2) the existence of a disability; and (3) the ability to perform the
essential functions of her job. See Pl.’s Obj. to Def.’s MSJ. at 11–14. Ms. Blodgett then argues
that Defendant granted her leave of absence only to terminate her shortly after she returned—
which, in her view, constitutes a failure to accommodate her disability actionable under the
ADA. Id. at 20.
In support of this claim, Ms. Blodgett alleges that similarly situated employees who were
not terminated for similar conduct. Id. at 16. Once the burden shifts backs to her, after 22 South
Street Operations’ legitimate non-discriminatory reason for her termination, Ms. Blodgett asserts
that other justifications were merely pretexts for impermissible discrimination. Id. at 18–19.
The Court disagrees.
a.
Notice of Disability
As an initial matter, “an employer is only responsible for employment decisions based
on information available to it when it decides.” Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 725
17
(2d Cir. 1994). And “[a]n employee has the initial duty to inform the employer of a disability
before ADA liability may be triggered for failure to provide accommodations—a duty dictated
by common sense lest a disabled employee keep his disability a secret and sue later for failure to
accommodate.” Thompson v. N.Y.C., No. 98 Civ. 4725 (GBD), 2002 WL 31760219, at *7
(S.D.N.Y. Dec. 9, 2002) (citation omitted).
Ms. Blodgett relies on an alleged conversation she had with her supervisor, Nancy
Pagani, as notice of her disability. See Blodgett September 14, 2018 Dep. at 86:22–87:2 (“I
believe the time I can remember is when I walked into [Nancy Pagani’s] office crying . . . and
said that I was having a hard time with some of the deaths that happened at the facility and that I
was feeling depressed and I was crying all the time, including on the job.”). Ms. Blodgett,
however, did not inform Ms. Pagani that she had received a medical diagnosis of depression. Id.
at 87:7–10 (“Q. Did you tell Nancy Pagani during that conversation that you had been medically
diagnosed with depression? A. Probably not, no.”).
Ms. Blodgett also never notified her employer of her need of an accommodation. “[I]t is
the responsibility of the individual with a disability to inform the employer that an
accommodation is needed.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008)
(citing Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006)). While Ms. Blodgett
informed Ms. Pagani of her problems dealing with her job, there is nothing in this record
indicating that her employer “knew or reasonably should have known that [Ms. Blodgett] was
disabled.” Id.
Because “an employer who acts or fails to act without knowledge of a disability cannot
be said to have discriminated based on that disability,” see Felix v. N.Y.C. Transit Auth., 154 F.
Supp. 2d 640, 657 (S.D.N.Y. 2001), Ms. Blodgett has failed to establish the notice prong of
18
disability discrimination or a reasonable accommodation claim. See McBride, 583 F.3d at 97
(requiring that “an employer covered by the statute had notice of his disability” to establish a
prima facie disability discrimination or failure to accommodate case).
b.
Ability to Perform Essential Functions with Reasonable
Accommodation
The ADA defines “reasonable accommodation” as including but not limited to “job
restructuring, part-time or modified work schedules, [and] reassignment to a vacant
position . . . .” 42 U.S.C. § 12111(9)(B). ADA regulations further state that an employer is
required to make “[m]odifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed, that enable a
qualified individual with a disability to perform the essential functions of that position.” 29
C.F.R. § 1630.2(o)(1)(ii).
A reasonable accommodation 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.”
42 U.S.C. § 12111(9)(B); see also Jackan v. N.Y. Dep't of Labor, 205 F.3d 562, 566 (2d Cir.
2000). When discrimination actions are based on adverse employment actions or a failure to
accommodate, the Plaintiff “bears the burdens of both production and persuasion as to the
existence of some accommodation that would allow her to perform the essential functions of her
employment, including the existence of a vacant position for which she is qualified.” 2 See
McBride, 583 F.3d at 97.
2
By contrast, regarding the reasonableness of a proposed accommodation, a plaintiff bears only a light burden of
production that is satisfied if the costs of the accommodation do not, on their face, exceed the benefits. The burden
of persuasion falls on the defendant employer. See Jackan, 205 F.3d at 566; Borkowski v. Valley Cent. Sch. Dist., 63
F.3d 131, 138 (2d Cir. 1995).
19
But nothing in the record indicates that Ms. Blodgett ever requested a modification to her
job, while she was employed. Rather, her employer granted the only medical leave requested in
this record. See Willis Aff. at ¶ 9; Ex. P12, ECF No. 78-15. Ms. Blodgett only returned to work
after Dr. Poulin cleared her to return on January 8, 2016. Willis Aff. at ¶ 10. In short, there is no
evidence that there was ever a reasonable accommodation request or refusal to accommodate that
request.
Even if the Court could conclude that a request for an accommodation had been made,
the decision on Ms. Blodgett’s Social Security disability claim precludes any reasonable
accommodation. While the receipt of Social Security disability benefits does not bar a recipient
from pursuing an ADA claim, see Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6–7
(2d Cir. 1999), “an ADA plaintiff cannot simply ignore her SSDI contention that she was too
disabled to work.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 798 (1999). As a result,
Ms. Blodgett “must explain why that SSDI contention is consistent with her ADA claim that she
could ‘perform the essential functions’ of her previous job, at least with ‘reasonable
accommodation.’” Id.
Ms. Blodgett, however, has not reconciled the Social Security disability benefits decision
with her ADA accommodation claim, except to claim she could work a full shift again. Instead,
she has made a sworn assertion of total disability without “explanation of any apparent
inconsistency with the necessary elements of an ADA claim.” Compare Ex. C, ECF No. 71-1 (“I
BECAME UNABLE TO WORK BECAUSE OF MY DISABLING CONDITION ON
December 16, 2015. I AM STILL DISABLED”) & Pl.’s Obj. to Def.’s MSJ. at 15 (“Plaintiff was
qualified for the job and could perform the essential functions. Plaintiff was employed by
Defendant without issue for years . . . In her deposition, Plaintiff testified that she was capable of
20
working a full shift.”), with Cleveland, 526 U.S. at 807 (“When faced with a plaintiff's previous
sworn statement asserting ‘total disability’ or the like, the court should require an explanation of
any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary
judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that,
assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff
could nonetheless ‘perform the essential functions’ of her job, with or without ‘reasonable
accommodation.’”).
Without an explanation “sufficient to warrant a reasonable juror's concluding that . . . the
plaintiff could nonetheless ‘perform the essential functions’ of her job, with or without
‘reasonable accommodation [,]’” there is no record evidence to support Ms. Blodgett’s
reasonable accommodation claim. Id.
Accordingly, Ms. Blodgett’s ADA accommodation claim must be dismissed.
3.
ADA Retaliation Claim
To state an ADA retaliation claim, a plaintiff must show “(1) the employee was engaged
in an activity protected by the ADA, (2) the employer was aware of that activity, (3) an
employment action adverse to the plaintiff occurred, and (4) there existed a causal connection
between the protected activity and the adverse employment action.” Sarno v. Douglas Elliman–
Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). Under the applicable burden-shifting
analysis, “[a] plaintiff must establish a prima facie case; the employer must offer through the
introduction of admissible evidence a legitimate non-discriminatory reason for the discharge; and
the plaintiff must then produce evidence and carry the burden of persuasion that the proffered
reason is a pretext.” See McBride, 583 F.3d at 96 (citing Sista, 445 F.3d at 169); see also
Mendillo v. Prudential Ins. Co. of Am., 156 F. Supp. 3d 317, 347 (D. Conn. 2016) (Bolden, J.)
21
(adopting and applying the retaliation analysis of an earlier ADA claim to an FMLA claim).
22 South Street Operations argues that there was no causal connection between Ms.
Blodgett’s termination and any ADA protected activity. Def.’s Mem. in Supp. of MSJ. at 20.
Rather than the discriminatory animus required by the ADA, 22 South Street Operations argues
that it granted Ms. Blodgett twenty-five days of personal leave and delayed its investigation until
after Ms. Blodgett returned. Id. at 21–22. Because there is no evidence construing its
employment decisions as a pretextual termination, 22 South Street Operations argues that there
can be no retaliation under the ADA. Id. at 22–23.
In response, Ms. Blodgett argues that she engaged in a protected activity when she
notified Nancy Pagani of the need for time off and followed up by submitting an FMLA request
form. Pl.’s Obj. to Def.’s MSJ. at 21. In her view, as long as Ms. Blodgett made the claim in
good faith, she meets the protected activity prong of a retaliation case. Id. Ms. Blodgett then
argues that Nancy Pagani knew that she needed the reasonable accommodation of a finite leave
of absence. Id. at 22. Ms. Blodgett then claims that her termination for exercising those rights
was an adverse employment outcome. Id. For a causal connection, Ms. Blodgett argues that the
time between her protected activity and adverse employment action is sufficient. Id.
Ms. Blodgett also argues that any other explanation for her termination should not be
addressed at this stage of the case. Id. at 22–23.
The Court disagrees.
Ms. Blodgett’s retaliation claim suffers from the same deficiencies as her FMLA
discrimination and ADA reasonable accommodation claims. Here, as there, “an employer is only
responsible for employment decisions based on information available to it when it decides.”
Heilweil, 32 F.3d at 725. And “[a] n employee has the initial duty to inform the employer of a
22
disability before ADA liability may be triggered for failure to provide accommodations—a duty
dictated by common sense lest a disabled employee keep his disability a secret and sue later for
failure to accommodate.” Thompson, 2002 WL 31760219, at *7.
As discussed above, however, there is no evidence that Ms. Blodgett informed her
employer of her disability. Her conversation with Nancy Pagani about feeling depressed, see
Blodgett September 14, 2018 Dep. at 86:22–87:7–10, does not create a genuine issue of material
fact for her ADA claim because of the absence of any verified medical information.
Because “an employer who acts or fails to act without knowledge of a disability cannot
be said to have discriminated based on that disability,” see Felix, 154 F. Supp. 2d at 657, Ms.
Blodgett has failed to establish the notice prong of an ADA retaliation claim. See McBride, 583
F.3d at 97 (requiring that “an employer covered by the statute had notice of his disability” to
establish a prima facie disability discrimination or failure to accommodate case).
Even if she had established notice, as mentioned above, Ms. Blodgett’s ADA retaliation
claim falls short for three reasons. First, as discussed above, Ms. Blodgett has failed to create a
genuine issue of material fact as to whether a causal connection existed between her termination
and the exercise of a protected activity. Second, 22 South Street Operations has articulated
legitimate, non-discriminatory reasons her discharge: her behavior. Third, once the burden shifts
back to Ms. Blodgett, the record evidence is insufficient to create a genuine issue of material fact
for the jury on her claim of retaliation. More specifically, as discussed above with respect to her
FMLA retaliation claim, there is no record evidence that 22 South Street Operations terminated
similarly situated employees for similar conduct or any other admissible evidence of retaliation.
Accordingly, Ms. Blodgett’s ADA retaliation claim must be dismissed.
23
B.
State Law Claims
Having dismissed Ms. Blodgett’s federal claims, the Court declines to exercise
supplemental jurisdiction over Ms. Blodgett’s remaining state law claims. Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“a district court ‘may decline to exercise
supplemental jurisdiction’ if it ‘has dismissed all claims over which it has original jurisdiction’”
(citing 28 U.S.C. § 1367(c)(3)).
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS 22 South Street Operation’s Motion for
Summary Judgment as to the ADA and FMLA claims.
The Court also declines to exercise supplemental jurisdiction over Ms. Blodgett’s CFEPA
claims.
The Court respectfully directs the Clerk of the Court to close this case.
SO ORDERED at Bridgeport, Connecticut, this 8th day of July 2019.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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