Sonya Kenney v. Connecticut Department of Mental Health and Addiction Services (2011)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

This discrimination suit was filed by Sonya Kenney, the plaintiff, against her former employer, the Connecticut Department of Mental Health and Addiction Services (DMHAS), the defendant alleging in her two-count amended complaint, the following relevant facts:  Kenney is a black woman who worked for DMHAS from October 2, 1998 to December 11, 2000.   On or about October 16, 2000, Kenney informed Sheryl Enzor, her supervisor, and Ellen Mantel, a DMHAS human resources employee, that she was pregnant.   Kenney also disclosed to Enzor that she was suffering from extreme morning sickness and that her pregnancy was considered to be high-risk.   Kenney further alleges that she requested an alternative work schedule;  she asked to invoke her rights under the FMLA;  her requests were denied;  and during this time period DMHAS changed its rules regarding attendance.   On December 11, 2010, DMHAS terminated Kenney, citing excessive absenteeism as the reason.

In her first count, Kenney alleges that DMHAS violated General Statutes § 5-248a, which provides a family and medical leave of absence for qualifying employees, and General Statutes § 31-51pp, which prohibits discrimination due to the exercise of leave rights.   In count two, Kenney alleges that DMHAS discriminated against her in violation of General Statutes § 46a-60(a)(1), (4), (5), (7) and (8), which prohibits discriminatory employment practices.   On November 23, 2010, DMHAS moved for summary judgment as to both counts.

I

This motion was filed pursuant to a proper scheduling order and is not barred by collateral estoppel or res judicata, as claimed by plaintiff.

II

As to count one, alleging violations of §§ 5-248a and 31-51pp, DMHAS moves for summary judgment on the grounds that Kenney will be unable to provide factual support for her claims of discrimination based on race, pregnancy, hostile work environment and violation of FMLA, and Kenney cannot prove that DMHAS' reason for terminating her was pretextual.   Specifically, DMHAS argues that the state is excluded from the definition of “employer” as the term is used in General Statutes § 31-51pp.   Alternatively, DMHAS argues that if it is an employer under that section, Kenney's remedy under § 31-51pp(c)(2) must be to file a complaint with the state labor commissioner, with a right of appeal to the Superior Court.

Kenney contends that the following issues of fact exist in this case:  whether there was a causal connection between Kenney's act of exercising her FMLA rights and DMHAS' act of terminating her;  whether DMHAS had a legitimate business reason for the termination;  and whether her supervisors acted under or were aided by DMHAS' actual or apparent authority in harassing Kenney.

III

DMHAS claims that § 31-51pp does not apply to DMHAS.

Section 31-51pp provides, in pertinent part:  “(a)(1) It shall be a violation of sections 5-248a and 31-51kk to 31-51qq, inclusive, for any employer to interfere with, restrain or deny the exercise of, or the attempt to exercise, any right provided under said sections.”  Section 31-51kk(4) defines “employer” as:  “a person engaged in any activity, enterprise or business who employs seventy-five or more employees, and includes any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer and any successor in interest of an employer, but shall not include the state ․” (Emphasis added.)  General Statutes § 17a-450 provides, in pertinent part:  “(a) There shall be a Department of Mental Health and Addiction Services ․ established pursuant to section 17a-456.”   Because DMHAS exists pursuant to § 17a-450, it is a state actor.   Since neither party has submitted any evidence showing whether DMHAS employs seventy-five or more employees, whether DMHAS is an employer subject to §§ 31-51kk through 31-51qq is an unresolved question of fact.

IV

DMHAS contends that § 5-248a does not create a private cause of action, but merely sets out the length of leave that may be taken.

Section 5-248a provides, in pertinent part:  “(a) ․ Each permanent employee, as defined in subdivision (20) of section 5-196, shall be entitled to ․ a medical leave of absence upon the serious illness of such employee.”

The record contains portions of Kenney's deposition, which contains conflicting evidence as to whether Kenney requested medical leave verbally, in writing, or both.   Kenney's deposition also contains evidence that some of her absences from work occurred during her pregnancy;  and at the time of her termination DMHAS was aware of her pregnancy and she was in the process of completing the documentation necessary for medical leave.   The allegations and evidence, viewed in the light most favorable to Kenney, reveal that genuine issues of material fact exist.

V

DMHAS argues that count two, which alleges discrimination in violation of § 46a-60(a)(1), (4), (5), (7) and (8), which is part of the Connecticut Fair Employment Practices Act (CFEPA), is legally insufficient for the following reasons:  Kenney has failed to establish a prima facie case that her separation from state service was due to her race, color or pregnancy in violation of General Statutes § 46a-60 (Connecticut Fair Employment Practices Act (CFEPA));  DMHAS has presented evidence of the legitimate non-discriminatory reasons of excessive absenteeism and tardiness for its decision to terminate Kenney;  and claims that she has failed to prove that DMHAS' reason for terminating Kenney was a pretext for discrimination;  and that she failed to allege or prove that the allegedly hostile environment was based on her gender or race.

Kenney claims that she engaged in a protected activity by disclosing her high risk pregnancy to DMHAS, which knew she was requesting medical leave;  she was not given the accommodations that were given to males with medical issues or white pregnant women;  and whether there was a causal connection between Kenney's act of exercising her FMLA rights and DMHAS's act of terminating her is a question of fact.

VI

Section 46a-60(a)(8) provides:  “(a) It shall be a discriminatory practice in violation of this section ․ (8) For an employer, by the employer or the employer's agent ․ to harass any employee ․ on the basis of sex.  ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (c) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.”

In the present case, Kenney has alleged that DMHAS discharged her due to her pregnancy, color and gender.   She has not, however, alleged that she was subjected to “any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature”;  although her amended complaint includes allegations of harassment and a hostile and offensive work environment.

One Superior Court decision analyzes § 46a-40 as follows:

In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60 ․ Although the language of [Title VII of the Civil Rights Act of 1964, § 703(a)(1);  42 U.S.C. § 2000e-2(a) ] and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting 1967 Public Acts, No. 426 (which extended the provisions of the Fair Employment Practices Act ․ to prohibit discrimination on the basis of sex) was to make the Connecticut statute coextensive with the federal ․ Therefore, in ruling on the defendants' motion for summary judgment, the court may rely on the case law analyzing claims under Title VII ․ A Title VII hostile work environment claim ․ is not limited to sexual advances or sexual behavior targeted at an employee.   It also includes non-sexual behavior directed at an employee because of her gender ․ In this type of hostile work environment case, the courts have generally ․ requir[ed] the plaintiff to prove that the hostile conduct was directed at her because of her gender, as opposed to, for example, the harasser's dislike of her as an individual, or the harasser's general misanthropic personality ․ The predicate acts which support a hostile-environment sexual-harassment claim need not be explicitly sexual in nature ․ Rather, the key issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

Bickford v. Phoenix Life Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 044001177 (May 03, 2007, Stengel, J.).

In Bickford, the plaintiff had alleged that she was non-sexually harassed by one of her supervisors because of her gender and the court denied the defendants' motion for summary judgment.

Here, Kenney's deposition contains evidence that she was discharged due to her status as a pregnant woman.   Harnad's affidavit contains evidence that Kenney was discharged for excessive absences and tardiness.   Whether DMHAS was at all motivated by Kenney's pregnancy as claimed, presents a question of material fact.

VII

Plaintiff claims that DMHAS violated § 46a-60(a)(1), (4), (5) and (7).   The statute provides, in pertinent part:

(a) It shall be a discriminatory practice in violation of this section:  (1) For an employer, by the employer or the employer's agent ․ to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color ․ sex ․ (4) For any ․ employer ․ to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84;  (5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so ․ (7) For an employer, by the employer or the employer's agent:  (A) To terminate a woman's employment because of her pregnancy;  (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;  (c) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer ․ (E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus;  (F) to fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter;  or (G) to fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position.

“When a plaintiff claims disparate treatment under a facially neutral employment policy, this court employs the burden-shifting analysis set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).   Under this analysis, the employee must first make a prima facie case of discrimination.   The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question.   The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias.”   Craine v. Trinity College, 259 Conn. 625, 636-37, 791 A.2d 518 (2002).

To establish a prima facie case of discrimination, the complainant must demonstrate that (1) he is in the protected class;  (2) he was qualified for the position;  (3) he suffered an adverse employment action;  and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination.   The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff's favor.  Vollemans v. Wallingford, 103 Conn.App. 188, 220, (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).

In the present case the evidence in the record reveals that Kenney is a black woman, who had requested an alternate work schedule, and that she was pregnant at the time of her dismissal.   Nothing in the record shows that Kenney was unqualified to perform the work that her position entailed.   Kenney was terminated within two months of informing DMHAS that she was pregnant.   These circumstances could give rise to a finding of discrimination based on pregnancy.  Vollemans v. Town of Wallingford, supra, 103 Conn.App. 220.

Harnad's affidavit stating that Kenney was terminated for the legitimate, nondiscriminatory reasons of excessive absenteeism and tardiness, some instances of which predated her pregnancy does not eliminate the question of material fact involving the motives of DMHAS employees.   Generally, summary judgment is inappropriate when issues of motive are in issue.  Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111.

Because genuine issues of material fact exist, the motion for summary judgment is denied.

Wagner, JTR

Wagner, Jerry, J.T.R.