Stubbs v. ICare Mgmt., LLC

• Decision Date: 30 June 2020
• Docket Number: AC 42551
• Citation: 233 A.3d 1170,198 Conn.App. 511
• Court: Connecticut Court of Appeals
• Parties: Tanya STUBBS v. ICARE MANAGEMENT, LLC, et al.

198 Conn.App. 511

233 A.3d 1170

Tanya STUBBS

v.ICARE MANAGEMENT, LLC, et al.

AC 42551

Appellate Court of Connecticut.

Argued February 5, 2020

Officially released June 30, 2020

Zachary T. Gain, with whom, on the brief, was James V. Sabatini, Newington, for the appellant (plaintiff).

Rachel V. Kushnel, for the appellees (defendants).

Keller, Bright and Beach, Js.

BRIGHT, J.

The plaintiff, Tanya Stubbs, appeals from the summary judgment rendered by the trial court in favor of the defendants, ICare Management, LLC (ICare), and Meriden Care Center, LLC (Meriden), on the plaintiff's complaint, which alleged violations of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. In particular, the plaintiff alleged that the defendants terminated her due to her disability, failed to provide her with a reasonable accommodation for her disability, and retaliated against her for requesting a reasonable accommodation.¹ On appeal, the plaintiff claims that the court erred in determining that there were no genuine issues of material fact as to whether (1) the defendants’ stated reason for their termination of the plaintiff's employment was pretextual and as to whether, at the time her employment was terminated, she was qualified, with or without a reasonable accommodation, to perform the essential functions of her job, and (2) the defendants failed to provide the plaintiff with a reasonable accommodation.

Because there are genuine issues of material fact as to the plaintiff's claims of discrimination and failure to accommodate, we reverse the judgment of the trial court as to those claims. We affirm the trial court's judgment as to the plaintiff's claims of retaliation because she has failed to brief the claims and, therefore, has abandoned them.

The following facts, viewed in the light most favorable to the plaintiff, and procedural history are relevant to our analysis of the plaintiff's claims on appeal. Meriden is a skilled nursing facility that does business as Silver Springs Care Center; ICare manages Silver Springs Care Center. The plaintiff began working for the defendants in April, 2015, as a certified nursing assistant (CNA). Prior to being hired by the defendants, the plaintiff had worked as a licensed CNA since shortly after she graduated from high school in 1982. When she was hired by the defendants, the plaintiff was able to perform the essential functions of her job, which included pushing residents in wheelchairs, pushing medical carts, and direct patient care, including feeding and assisting with ambulation. In June, 2015, the defendants gave the plaintiff a positive performance review. The review did not identify any function of her job that the plaintiff could not perform. In fact, the evaluation stated that the plaintiff met the standards for all job requirements, except for attendance, as to which the evaluation stated that there was one issue, and that the plaintiff had taken actions to ensure that the issue did not arise again. The evaluation also described the plaintiff as an excellent employee.

The plaintiff does have a physical disability² and had a history of knee problems, which resulted in multiple surgeries on both of her knees, before she began working for the defendants. Nevertheless, she was experiencing no difficulties with her knees when she was hired by the defendants. At some point while working for the defendants, the plaintiff began experiencing severe pain in both knees. Consequently, she requested that her work hours be reduced from twenty hours per week to twelve hours per week. The defendants agreed. By the end of 2015, the plaintiff informed the defendants that she needed to have surgery on her right knee. She requested leave under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., which request the defendants denied because the plaintiff had not worked for the defendants long enough to qualify for such leave. The defendants informed the plaintiff, however, that she could apply for an unpaid leave of absence, which she did. The defendants approved the plaintiff's unpaid leave of absence, to begin on February 10, 2016, so that the plaintiff could have and recover from her knee surgery. It was anticipated that the plaintiff would need approximately three months to recuperate.

While the plaintiff was recovering from surgery, she received a phone call from an employee of one of the defendants informing her that her employment was being terminated for failing to report to work and for failing to call to report her absence, which the defendants termed a "no call no show," on February 6 and 7, 2016.³

Thereafter, the plaintiff received a letter from Gail Mari, an employee of Meriden, confirming the plaintiff's termination from employment. The letter stated that the plaintiff's employment was terminated "due to second occurrence of no call no show activity on [February 6 and 7, 2016]."⁴ The defendants’ "Daily eCentral Facility Call Out/Replacement Log," submitted by the plaintiff in opposition to the defendants’ motion for summary judgment, includes an entry for the plaintiff, dated February 6, 2016, stating that the plaintiff was a "no call no show" on that date. The log does not contain an entry for the plaintiff for February 7, 2016. In addition, no party submitted an affidavit or any other evidence explaining the log, when it was completed, or by whom it was completed.

The plaintiff testified at her deposition that she was not a no call no show on February 6 and 7, 2016. She testified that she had received a phone call from one of the defendants’ employees, whom she could not identify, telling her not to report to work on those dates because the defendants were overbooked with CNAs. She further testified that the defendants "constantly" overbooked employees and that she and other CNAs were called quite often and told not to report to work.

She also testified that she told the director of nursing, the assistant director, and some of the other CNAs that she had been told not to report to work on February 6 and 7, 2016. She identified the director of nursing as "Valerie something." According to the plaintiff, Valerie said that she would look into it. The defendants submitted no affidavit from Valerie or any other employee addressing the plaintiff's testimony that she was told not to report to work because Meriden was overbooked and that the plaintiff had reported the call to various employees of the defendants.

Although the plaintiff received clearance from her physician to return to work without restrictions on May 10, 2016, she has not sought work as a CNA. In fact, as of March 23, 2018, the date of her deposition, the plaintiff still believed that she had not recovered sufficiently to perform the essential functions of a CNA and she had no plans to return to that profession.

Following a January 31, 2017 release of jurisdiction notice from the Commission on Human Rights and Opportunities, the plaintiff, on March 25, 2017, commenced this action by service of process against the defendants. The plaintiff alleged the following causes of action against each defendant: disability discrimination (counts one and two), retaliation (counts three and four), failure to accommodate (counts five and six)—all in violation of General Statutes § 46a-60 —and aiding and abetting against ICare.⁵ The defendants responded with an answer and several special defenses.

On April 26, 2018, the defendants filed a motion for summary judgment on all counts of the plaintiff's complaint. In their motion, the defendants alleged that there were no disputed material facts, and that they were entitled to judgment as a matter of law because (1) the plaintiff could not establish a prima facie case to support any of her claims, and (2) her employment was terminated for a nondiscriminatory reason, namely, that she had failed to report to work on two scheduled days before her leave of absence without notifying them, in violation of their attendance policy. In support of their motion, the defendants submitted a memorandum of law, a portion of the plaintiff's sworn deposition, and various documents, including the defendants’ attendance policy, disciplinary reports warning the plaintiff about her absenteeism and no call no shows, and Mari's February 17, 2016 certified letter that had been sent to the plaintiff by the defendants terminating her employment for "no call no show activity" on February 6 and 7, 2016.

The plaintiff objected to the defendants’ motion, contending that there existed genuine issues of material fact. Attached to her memorandum of law in opposition to the defendants’ motion for summary judgment was a portion of her deposition and various documents, including her request for leave, the defendants’ "Daily eCentral Facility Call Out/Replacement Log," and the defendants’ letter notifying her that her employment had been terminated "for cause."

Following a September 24, 2018 short calendar hearing, the court, on January 18, 2019, issued a memorandum of decision in which it granted the defendants’ motion for summary judgment. After setting forth the applicable law governing the plaintiff's claims and the standard for summary judgment, the court concluded that the plaintiff had set forth sufficient, albeit scant, evidence showing that her employment was terminated "under circumstances giving rise to an inference of discrimination." Specifically, the court referred to the plaintiff's deposition wherein she testified that she had requested and been granted time off to have knee surgery, but, just a few days before she was scheduled to begin her leave of absence, the defendants told her that she did not have to report to work, specifically on the February 6 and 7, 2016, due to overstaffing, and thereafter wrote her up as a no call no show for those days, using her nonattendance as a basis for the termination of her employment. The court also concluded, however, that the defendants had...