Foley v. Town of Marlborough

Docket Number3:19-cv-01481 (VAB)
Decision Date29 August 2022
PartiesJAMES FOLEY, Plaintiff, v. TOWN OF MARLBOROUGH and AMY TRAVERSA, Defendants.
CourtU.S. District Court — District of Connecticut



James Foley (Plaintiff) has sued the Town of Marlborough and Amy Traversa, individually, (collectively Defendants) following his termination from employment, for interference in violation of the Family Medical Leave Act (“FMLA”) under 29 U.S.C. § 2601 et seq. and retaliation in violation of the FMLA under 29 U.S.C. § 2612(a)(1) et seq. Am Compl., ECF No. 36 (Mar. 9, 2020) (“Am. Compl.”). The Town of Marlborough has also filed a motion to compel Indeed, Inc. (“Indeed”) to provide documents requested in its subpoena and to provide an affidavit authenticating the documents.

Defendants have moved for summary judgment on both FMLA claims.

Mr Foley also has cross-moved for partial summary judgment on his interference claim.

For the following reasons, the Town of Marlborough's motion to compel is DENIED. Defendants' motion for summary judgment is DENIED. Plaintiff's cross-motion for partial summary judgment is DENIED.

A. Factual Background[1]

The Town of Marlborough hired Mr. Foley on or about July 31, 1996, as a maintainer in the public works department. Pl.'s Local R. 56(a)(2) Statement in Opp'n to Defs.' Mot. for Summ. J. ¶ 1, ECF No. 120-1 (Jan. 21, 2022) (“Pl.'s 56(a)(2) Statement”). His duties included “driving trucks to transport materials, remove trash, and plow and sand roads,” as well as “general work in the construction, repair, and maintenance of town roads, bridges, grounds, and facilities.” Id.

Mr. Foley was at all times employed in the Public Works Department, in various roles. Am. Compl. ¶ 3.

Ms. Traversa served as the Town of Marlborough's First Selectman beginning in November of 2015. Pl.'s 56(a)(2) Statement ¶ 2; Defs.' Local R. 56(a)(2) Statement of Facts in Opp'n to Summ. J. for Pl. ¶ 10, ECF No. 119-1 (Jan. 21, 2022) (“Defs.' 56(a)(2) Statement”). She held that role when the Town of Marlborough fired Mr. Foley. Pl.'s 56(a)(2) Statement ¶ 2.

Haley Wagner worked for the Town of Marlborough from 2000 to November 2021. During this time, she served as assistant treasurer and finance director, roles which included human resources functions. Pl.'s 56(a)(2) Statement ¶ 3.

The Town of Marlborough is a municipality and political subdivision of the State of Connecticut. Defs.' 56(a)(2) Statement ¶ 7. It is also an employer as defined in 29 U.S.C. § 2611(4). Id. ¶ 8.

The parties agree that, during his employment by the Town of Marlborough, Mr. Foley “was disciplined including verbal warnings, written warnings and suspensions,” and that “the suspensions included multi-day suspensions in 2007, 2017, and. 2019 Pl.'s 56(a)(2) Statement ¶ 5. Defendants, however, claim that [a] number of [Mr. Foley's] instances of discipline were the result of failure to timely request leave from work or provide appropriate notice of a need for leave and unauthorized absences from work, among other reasons.” Defs.' Local R. 56(a)(1) Statement of Undisputed Fasts in Supp. of Mot. for Summ. J. ¶ 5, ECF No. 107-1 (Dec. 3, 2021) (“Defs.' 56(a)(1) Statement”). Mr. Foley claims that he was disciplined for “unexcused absences and leaving work without prior authorization” and not for “failure to timely request leave from work or provide appropriate notice of a need for leave.” Pl.'s 56(a)(2) Statement ¶ 5.

On January 17, 2017, Mr. Foley, by e-mail, submitted his first request for leave under the FMLA. Ex. A to Defs.' Mot. for Summ. J. at 2, ECF No. 107-7 (Dec. 3, 2021) (“Ex. A”). Mr. Foley attached to his request a November 2018 letter from a medical doctor, which asked that he be excused from work because of ‘“his significant difficulty with tinnitus.' Pl.'s 56(a)(2) Statement ¶ 6 (quoting Ex. A at 3). On January 24, 2017, Ms. Traversa sent Mr. Foley an e-mail stating that a request for leave under the FMLA requires a specific application “and must include the job description” on file for the applicant. Pl.'s 56(a)(2) Statement ¶ 7. Her e-mail included a U.S. Department of Labor Certification of Health Care Provider for Employee's Serious Health Condition (“Certification Form”), “to be filled out by [Mr. Foley] and a health care provider.” Defs.' 56(a)(1) Statement ¶ 7.

On March 28, 2017, Mr. Foley returned the completed Certification Form, signed by Dr. Jeffrey Sawyer. Pl.'s 56(a)(2) Statement ¶ 8. Dr. Sawyer indicated that “the employee [is] unable to perform any of his/her job functions due to the condition,” Ex. B to Defs.' Mot. for Summ. J. at 5, ECF No. 107-8 (Dec. 3, 2021), and that Mr. Foley would not “be incapacitated for a single continuous period of time due to his . . . medial condition, including any time for treatment and recovery.” Id. at 6. The Certification Form also stated that Mr. Foley would “need to attend follow-up appointments or work part-time or on a reduced schedule because of [his] medical condition” and that the condition would not “cause episode flare-ups periodically preventing [Mr. Foley] from performing his . . . job functions.” Id. at 6. In the field asking that the physician “identify the job functions the employee is unable to perform,” Dr. Sawyer wrote, [b]ecause of Hrg loss, Pt needs to avoid noise exposure[.] Also has dif[ficulty] hearing in .... Has dif[ficulty] sleeping and has tinnitus.” Id. at 5.

On April 5, 2017, Ms. Traversa drafted a letter to Dr. Sawyer stating that his responses on the Certification Form “do not provide enough specificity to allow [the Town of Marlborough] to make a determination on how to proceed with Mr. Foley's request for intermittent medical leave under the FMLA.” Ex. C to Defs.' Mot. for Summ. J. at 2, ECF No. 107-9 (Dec. 3, 2021) (“Ex. C”); see also Pl.'s 56(a)(2) Statement ¶ 9. The letter requested“ additional specific information regarding the likely frequency and duration of Mr. Foley's inability to perform the essential functions of his job, and if there are any medically necessary work restrictions.” Ex. C at 2. The letter also noted an inconsistency in the Certification Form, which indicated that Mr. Foley would have to attend follow-up treatment appointments or work part time or on a reduced schedule but also notes that treatments or reduced hours are not medically necessary. Ex. C at 2. The letter stated that [u]ntil the Town [of Marlborough] receives the specific information from you that is necessary to address Mr. Foley's request for leave under the FMLA, [the town of Marlborough] will be unable to address his request.” Ex. C at 3.

On April 6, 2017, Ms. Traversa sent Mr. Foley an e-mail detailing the deficiencies in Dr. Sawyer's Certification Form. Pl.'s 56(a)(2) Statement ¶ 10; Ex. ZZ to Defs.' Mot. for Summ. J., ECF No. 107-58 (Dec. 3, 2021) (“Ex. ZZ”). The e-mail from Ms. Traversa stated, [b]efore we can address your request for medical leave under FMLA, we will need additional information,” and notes that a copy of Mr. Foley's job description would be forwarded to Dr. Sawyer, “along with a letter requesting more specific and clear answers, so he can resubmit the form and provide the Town with the information necessary to address [Mr. Foley's] request for leave under FMLA.” Ex. ZZ at 2. Specifically, the e-mail requested that Dr. Sawyer provide details on the functions of the job that Mr. Foley would be unable to perform. Id. The e-mail ended with, [o]nce we receive the specific information needed from Dr. Sawyer, we will be able to address your request.” Id.

On April 21, 2017, Dr. Sawyer informed Ms. Traversa that the main issue was Mr. Foley's ‘“ability to minimize noise trauma at work,'” and that ‘[a]s long as OSHA standards are maintained patient should be able to continue work with appropriate noise protection.' Pl.'s 56(a)(2) Statement ¶ 11 (quoting Ex. D to Defs.' Mot. for Summ. J., ECF No. 107-10 (Dec. 3, 2021) (“Ex. D”)); see also Ex. D at 2 (“I believe the main issue for patient is not the follow-up and loss of time from work due to follow up appointments but rather his ability to minimize noise trauma at work.”).

On April 27, 2017, Ms. Traversa informed Mr. Foley that the Town of Marlborough had received supplemental information from Dr. Sawyer and that based on the information provided, Mr. Foley's FMLA leave was denied because his ‘“current condition does not satisfy the criteria set forth under the FMLA for intermittent leave.' Pl.'s 56(a)(2) Statement ¶ 12 (quoting Ex. E to Defs.' Mot. for Summ. J., ECF No. 107-11 (Dec. 3, 2021) (“Ex. E”)). Defendants claim that Mr. Traversa “confirmed that [Mr. Foley] had been provided with appropriate OSHA-advised hearing protection,” which Mr. Foley denies. Defs.' 56(a)(1) Statement ¶ 12; Pl.'s 56(a)(2) Statement ¶ 12. Ms. Traversa's April 27, 2017 letter stated,

As you know, all practical OSHA advised ear protection has been provided to you by the Town. However, if you feel you require additional ear protection, please feel free to speak with your supervisor, Tony Gallicchio, about it.

Ex. E at 2.

On July 24, 2017, Defendants received a letter from Dr. Sawyer, dated November 9, 2016, which asks to [p]lease excuse patient from his work schedule secondary to this significant duty with tinnitus.” Ex. F to Defs.' Mot. for Summ. J., ECF No. 107-12 (Dec. 3, 2021). The letter stated that [b]ecause of the difficulty with ringing [in the ear] patient loses significant amount of sleep which causes him to have difficulty at work and lose time from work.” Id. at 4.

On August 4, 2017, Mr. Foley sent an e-mail to Ms. Traversa containing a July 25, 2017 letter...

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