Cooling v. City of Torrington
| Docket Number | AC 45395 |
| Decision Date | 12 September 2023 |
| Parties | JASON COOLING v. CITY OF TORRINGTON |
| Court | Connecticut Court of Appeals |
Argued April 18-2023
Procedural History
Action to recover damages for, inter alia, alleged employment discrimination, and for other relief, brought to the Superior Court in the judicial district of Litchfield, where the court, Hon. John W. Pickard, judge trial referee granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.
Eric R. Brown, for the appellant (plaintiff).
Michael J. Rose, with whom, on the brief, was Megan L Nielsen, for the appellee (defendant).
The plaintiff, Jason Cooling, appeals from the summary judgment rendered by the trial court in favor of the defendant, the city of Torrington, on the plaintiffs complaint alleging violations of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq.[1] The plaintiff alleged in his complaint that the defendant discriminated against him on the basis of disability by, inter alia, failing to engage in a good faith interactive process to provide him with a reasonable accommodation and by subjecting him to a hostile work environment.[2] On appeal, the plaintiff claims that the court improperly determined that he failed to raise a genuine issue of material fact that the defendant (1) had not engaged in the requisite good faith interactive process to discover a reasonable accommodation for his disability and (2) had subjected him to a hostile work environment. We disagree with the plaintiff and, accordingly, affirm the judgment of the court.
The record before the court, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following undisputed facts and procedural history. The defendant hired the plaintiff in February, 2008, as a police officer with the Torrington Police Department (department). He worked for the department until his resignation in April, 2019. When hired, the plaintiff was an active member of the United States Marine Corps Reserve. Prior to joining the department, the plaintiff had been deployed to combat duty in Iraq in 2006. In 2011, while employed by the defendant, he was deployed again, this time to Afghanistan. The plaintiff suffered significant injuries as a result of his multiple deployments, including a traumatic brain injury, posttraumatic stress disorder (PTSD), anxiety, depression, migraine headaches, and chronic back pain.[3]
During his employment with the department, the plaintiff worked as an evening shift patrol officer on a 5/2, 5/3 schedule, meaning that he worked an alternating schedule that consisted of five days on and two days off followed by five days on and three days off.[4] As a result of his schedule, the plaintiffs assigned days off rotated forward one day every two weeks, meaning that he had full weekends off only three times every sixteen weeks.
In 2012, after returning to work from his Afghanistan deployment, the plaintiff was assigned as a K-9 handler. In that role, he was provided with a police dog named Remington. The plaintiff housed and cared for Remington at his home and worked with him until they retired together. Remington generally was trained as a patrol dog but also received additional training to track people and to detect narcotics. The plaintiff received special training with Remington regarding the dog's narcotic detection functions. In addition to his special assignment as a K-9 handler on the evening shift, the plaintiff also was assigned as a member of the department's Special Response Team.[5]
As a police officer with the department, the plaintiff was a member of the Torrington Police Union, Local 442, Council 4, AFSCME, AFL-CIO (police union). Under the terms of the operative collective bargaining agreement between the defendant and the police union, employees accrued sick leave on a monthly basis. Any employee that used accrued sick leave on either the day before or after a scheduled day off on more than three occasions in any twelve month period would be placed on "sick leave probation . . . ."[6] During the resulting six month probation period, if the employee wished to use accrued sick time, he or she was required to submit a form signed by a physician to qualify for additional sick leave pay.
In March, 2016, the department notified the plaintiff by letter that he was being placed on" 'sick [leave] probation'" because he had "called in sick in excess of four times in conjunction with [his] scheduled days off and/or a [change] day in a twelve month period."[7]The start date of his six month probation period was February 28,2016. The plaintiff neither raised any objections at that time to being placed on sick leave probation nor filed a grievance with the police union.
In January, 2017, the plaintiff was again notified by letter that he was being placed on sick leave probation for a "second time in less than a twelve (12) month period . . . ." The letter further provided in relevant part: Finally, the letter informed the plaintiff that the department would conduct an internal investigation into the plaintiff's use of sick leave.
The plaintiff had an informal meeting on January 31, 2017, with the then chief of police, Michael Maniago, and the deputy chief of police, Christopher Smedick. At that meeting, the plaintiff advised them "of ongoing stressors in his homelife."[8] He did not mention at this meeting that his sick time use was attributable to any injury, illness, and/or disability related to his past military service.
On February 2, 2017, the defendant formally notified the plaintiff that he was under investigation for excessive absenteeism. In a memorandum dated February 8, 2017, the plaintiff notified the defendant that he was suffering from a disability and that he properly had utilized his contractually allowed sick time as a result of that disability.[9] Prior to the February 8, 2017 notice, the plaintiff had not raised his disability as an issue to the defendant nor had he sought any accommodation for it because, as alleged in his complaint, "he did not believe that he was in need of any accommodations in order to perform the essential functions of his position, apart from his legitimate use of contractually provided paid sick leave." (Emphasis added.)
On February 15, 2017, the defendant issued a written reprimand to the plaintiff. The reprimand provided that the plaintiff had engaged in conduct unbecoming a police officer because, on more than three occasions, he had used his sick time in close proximity to other paid time off, which violated the terms of the collective bargaining agreement. As a result, the defendant placed the plaintiff back on sick leave probation in accordance with the collective bargaining agreement. The plaintiff received no additional discipline.
On March 8, 2017, the plaintiffs psychiatrist, Pavle Joksovic, sent a letter to the defendant indicating that the plaintiff currently was receiving psychotropic medication and supportive therapy for anxiety and depression. Joksovic stated that the plaintiff was stable and capable of performing his duties as a police officer with the help and support of his family. Joksovic nevertheless also recommended that, to maintain "proper daily function," the department should provide the plaintiff with a "regular daily shift schedule and/or no weekends as increased time spenft] with his family would go a long way for his [ongoing] stability."
In April, 2017, after Joksovic issued his letter, the plaintiff asked for a meeting with the defendant to discuss the accommodations recommended by Joksovic. On April 26, 2017, a meeting took place between the plaintiff, his attorney, Maniago, Smedick, the defendant's personnel director, and its attorney. At that meeting, the plaintiff, consistent with Joksovic's recommendations, asked to be assigned to a regular day shift schedule or, alternatively, to an evening shift position in narcotics, which would have allowed him to work a 5/2, 4/3 schedule, meaning he would have had weekends off.
In response, the defendant offered the plaintiff the option of either remaining in his current assignment or moving to the day shift on a 5/2, 5/3 schedule. The defendant, however, informed the plaintiff that if he elected to switch to the day shift, he would no longer be able to continue as a K-9 handler. The department had three dog handlers, with one assigned to each of the three shifts. There already was a K-9 officer with more seniority assigned to the day shift who did not want to move to the evening shift. The defendant also indicated that it could not assign the plaintiff to a narcotics position because no such position existed. The plaintiff chose to continue to work the evening shift.
On May 10, 2017, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities (CHRO) alleging workplace discrimination in that he had been denied a reasonable accommodation on the basis of a disability. The plaintiff eventually obtained a release of jurisdiction from the CHRO. See footnote 10 of this opinion.
On June 26, 2017, the plaintiff was injured at work during an altercation with a suspect whom the plaintiff was attempting to take into custody. The plaintiff was placed on leave pending a June 29, 2017 follow-up visit with the defendant's workers'...
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