Green v. Cellco P'ship

• Decision Date: 31 October 2016
• Docket Number: No. 3:15–cv–00288 (JAM),3:15–cv–00288 (JAM)
• Citation: 218 F.Supp.3d 157
• Parties: Edward GREEN, Plaintiff, v. CELLCO PARTNERSHIP, d/b/a Verizon Wireless, Defendant.
• Court: U.S. District Court — District of Connecticut

218 F.Supp.3d 157

Edward GREEN, Plaintiff,

v.CELLCO PARTNERSHIP, d/b/a Verizon Wireless, Defendant.

No. 3:15–cv–00288 (JAM)

United States District Court, D. Connecticut.

Signed October 31, 2016

James V. Sabatini, Sabatini & Associates, Newington, CT, for Plaintiff.

David C. Salazar–Austin, Victoria Woodin Chavey, Jackson Lewis—P.C., Hartford, CT, Kristi Rich Winters, Jackson Lewis P.C., Albany, NY, for Defendant.

RULING GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Jeffrey Alker Meyer, United States District Judge

Plaintiff used to work as a customer service representative for the defendant telephone company. In February 2014, plaintiff allegedly hurt his back while working and went out on leave. About two months later and before plaintiff had recovered to the point where he could return to work, defendant terminated plaintiff's employment. Plaintiff has now filed this lawsuit alleging that he was disabled and that his employment was terminated because of his disability, that he was not granted a reasonable accommodation, and that he was the subject of retaliation because he sought leave time and filed a workers' compensation claim.

Defendant has moved for summary judgment. Defendant argues that plaintiff was not disabled and that—even if he was disabled—defendant was not required by law to grant him additional leave time. Defendant further contends that plaintiff's work performance was deficient and that the real reason for the termination of plaintiff's employment was because plaintiff had disconnected too many customer calls. Although one or more of defendant's arguments may prove ultimately persuasive, I conclude that genuine issues of fact remain for trial. Accordingly, I will largely deny defendant's motion for summary judgment.

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. Plaintiff worked in a call center for defendant, where his duties focused on customer service—answering customers' phone calls and helping them resolve whatever problems they may be having with their phones. Defendant required its customer service employees, including plaintiff, to treat its customers courteously. Defendant encouraged its employees to help customers resolve their problems the first time they called, and discouraged "disconnects," a term referring to when a customer service representative would "drop" a call before the conversation with the customer had ended. Doc. #28 at 1–5.

Plaintiff had a mid-year review in 2013, in which defendant identified these disconnects as a problem that plaintiff should focus on. About four months after that review, plaintiff's manager, Richard Eckert, placed plaintiff on a "performance improvement plan." The plan encouraged plaintiff to do a better job of making sure he resolved customers' needs on their first call, as too many of his callers were calling back within a short period after talking with him. Doc. #28 at 1–5.

In 2014, plaintiff began reporting to a new supervisor, Ashley Ottman. At times, while Ottman was supervising him, plaintiff and a caller would become disconnected, and plaintiff would consult Ottman for advice about calling the customer back. In particular, plaintiff at times asked Ottman what to do when he and a customer became disconnected, but he noticed the customer had already called back in to the call center and was speaking with another representative. In those situations, Ottman told plaintiff that he did not need to call the customers back. Doc. #34–4 at 16–18.

While working as plaintiff's supervisor, Ottman commented to plaintiff several times that if employees got sick and took sick days, they could be fired. Doc. #34–4 at 6–7. She also said that if employees complained about her stance regarding sick days, they could be fired. Id. at 8–10.

On February 19, 2014, Ottman met with plaintiff to discuss a routine audit of plaintiff's calls. The audit showed that between January 15 and February 15 of that year, there were eight calls in which plaintiff had disconnected a customer and failed to call that customer back. It also showed that there was another call in which plaintiff had told the customer he would send the customer a text message and call back, but failed to do so. Doc. #28 at 1–5.

The next day, plaintiff reported to defendant that the previous night at work he had fallen out of his chair and injured his back. Plaintiff had a prior history of back injuries and related pain, and he said the fall had caused him to experience significant pain. Plaintiff went on leave effective that day, and defendant approved, via a third-party administrator, plaintiff's claim for short-term disability benefits, workers' compensation, and a leave of absence under the Family and Medical Leave Act. Doc. #28 at 7. Plaintiff had not reported any medical condition to defendant prior to this incident. Id. at 6.

Plaintiff was diagnosed by his physician with lumbar strain and a back contusion. He treated his pain for several weeks with narcotics and ibuprofen, and eventually with cortisone injections. Doc. #28 at 9. During this time, he continued to be on leave, although he was in frequent communication by telephone with Ottman. Doc. #34–4 at 32–33. Ottman repeatedly cautioned plaintiff against taking too much leave, telling him that he could get fired. Id. at 31–34.

Around April 1, 2014, plaintiff attempted to return to work. Midway through his drive to the office, though, he determined that his pain was too great. Upon arriving at work, he told an HR representative that he would not be able to work that day, and the HR representative told him that was "fine." Doc. #34–4 at 38–39. Plaintiff returned home, and continued on leave for three more weeks. Doc. #28 at 9. On April 25, 2014, while plaintiff was still on leave, he received a call from defendant informing him that he had been terminated. Id.

Since then, plaintiff has continued to deal with the repercussions of his injury and ensuing pain. In July 2014, his doctor cleared him for light-duty desk work. Doc. #34–4 at 43–44. By 2015, he was cleared for light-duty work with the restriction that he could not bend, stoop, squat, or lift more than ten pounds. Id.

The complaint alleges the following claims. Count One alleges that defendant's termination of plaintiff constitutes disability discrimination in violation of the Americans with Disabilities Act (ADA). Count Two alleges disability discrimination in violation of the Connecticut Fair Employment Practices Act (CFEPA). Count Three alleges that defendant failed to provide plaintiff with reasonable accommodation in violation of the ADA, and Count Four makes the same allegation with respect to CFEPA. Count Five alleges that defendant retaliated against plaintiff for exercising his rights under the ADA; Count Six is a retaliation claim under CFEPA. Count Seven alleges defendant interfered with plaintiff's exercise of legal rights under the Family and Medical Leave Act (FMLA), and Count Eight alleges defendant retaliated against plaintiff in violation of the FMLA. Count Nine, the last count, alleges retaliation in violation of Connecticut's workers' compensation laws. Doc. #1 at 1–17.

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 , ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (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 non-moving 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

1. Disability discrimination in violation of the ADA and CFEPA

Plaintiff alleges that his termination constitutes disability discrimination in violation of the Americans with Disabilities Act (ADA) and the Connecticut Fair Employment Practices Act (CFEPA). Both the ADA and CFEPA prohibit discrimination on the basis of disability and apply the same legal framework to the discrimination analysis. See Stoffan v. S. New Eng. Tel. Co. , 4 F.Supp.3d 364, 372 n. 2 (D. Conn. 2014). These claims of disability discrimination are subject to the familiar McDonnell Douglas burden-shifting standard. See Cortes v. MTA New York City Transit , 802 F.3d 226, 231 (2d Cir. 2015) ; McMillan v. City of NY. , 711 F.3d 120, 125 (2d Cir. 2013). Thus, a plaintiff may establish aprimafacie case for discrimination if he can show by a preponderance of the evidence that: (1) his employer is subject to the ADA/CFEPA; (2) he was 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 disability. Ibid.

If the plaintiff succeeds in meeting that burden, his employer can counter the presumption of discrimination by proffering a legitimate, nondiscriminatory reason for its action. See Cortes , 802 F.3d at 231. Finally, the plaintiff can still succeed on his claim if he can...