Amy Setkoski v. Lance Bauer et al. (2012)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (# 101)

FACTS

On June 27, 2011, the plaintiff, Amy Setkoski, filed a one-count complaint against the defendants, Lance Bauer and Yifrah Kaminer.   The complaint alleges the following facts.   The plaintiff was employed by the University of Connecticut Health Center (Health Center) ¹ from September 14, 1998 until August 25, 2008.   On or about March 27, 2008, the plaintiff, who had been working as a clinical research assistant under the supervision of the defendants, took a leave of absence, as instructed by her doctor, because she was suffering from anemia.   She returned to work on or about July 7, 2008, following a surgery and a blood transfusion.

Upon her return, the plaintiff was met with hostility by the defendants and was denied work and access to her computer and email.   After a poor performance review based on her absence from work, which put a project behind schedule, she was told any requests for time off would no longer be automatically approved and she would receive task deadlines.   On July 24, 2008, the plaintiff was presented with a demand to leave the department and an offer of temporary reassignment to another department until September 15, 2008, at which time her employment would end.   The plaintiff refused the offer and was subsequently terminated on August 25, 2008, after a second negative performance evaluation.   The plaintiff alleges that the defendants discriminated against her because of her actual and/or perceived physical disability, retaliated against her for taking temporary medical leave, refused to accommodate her medical condition and aided and abetted the Health Center in its discrimination and retaliation.   The plaintiff further alleges that the present complaint was brought pursuant to General Statutes § 52–592(a).

On August 25, 2011, the defendants filed a motion to strike the one-count complaint in its entirety on the following grounds:  (1) failure to state a claim saved by § 52–592(a);  (2) failure to state a claim for physical disability discrimination or aiding and abetting said discrimination because the plaintiff fails to allege a chronic disability;  (3) failure to state a claim for perceived disability discrimination or aiding and abetting said discrimination because it is not a recognized cause of action in Connecticut;  (4) failure to state a claim for retaliation because the plaintiff fails to allege a protected activity;  (5) failure to state a claim for accommodation because she fails to allege she requested an accommodation or was denied one;  and (6) failure to state a claim for physical or perceived discrimination because the defendants cannot be liable as individuals.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

-A-

General Statutes § 52–592(a)

The defendants argue that the complaint fails to state a claim saved by § 52–592(a) because the original action was against different parties and did not commence within the time proscribed by law.²  “While it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52–592 ․ [our Supreme Court] has never held this to be a requirement ․ It has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised.”  (Internal quotation marks omitted.)  McKeever v. Fiore, 78 Conn.App 783, 795–96, 829 A.2d 846 (2003).  “[A]s a general matter ․ the proper procedural instrument for challenging the applicability of § 52–592(a) ․ [is] by way of a properly pleaded special defense ․” (Citation omitted.)  LaBow v. LaBow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).   A motion to strike in this particular case is, therefore, not the proper procedure for challenging the applicability of § 52–592(a).

-B-

Failure to Allege a Claim for Physical Disability

The defendants argue that the complaint fails to allege a physical disability because the alleged disability is not “chronic” as required to state a claim for discrimination under the Connecticut Fair Employment Practices Act (CFEPA).   The defendants argue that a disability is chronic if it is long term or has frequent reoccurrences and the plaintiff's anemia was short-lived and did not recur.   In addition, the defendants argue that there is no individual liability for physical disability discrimination.   The plaintiff counters that only physical handicaps must be chronic and she must only show an infirmity.   Additionally, the plaintiff argues that a surgery, a blood transfusion and three months of recovery satisfy the chronic requirement.

General Statutes § 46a–60(a) provides in relevant part:  “It shall be a discriminatory practice in violation of this section (1) For an employer, by the employer or the employer's agent ․ to refuse to hire or employ or to bar or 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 ․ physical disabilities ․” Under the CFEPA, “ ‘[p]hysically disabled’ refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device.”  General Statutes § 46a–51(15).³  There is no statutory definition of “chronic.”  Caruso v. Siemens Business Communication Systems, Inc., 392 F.3d 66, 70 (2d Cir.2004).⁴

Decisions of the Superior Court have turned to the dictionary in an attempt to define the term “chronic.”   See e.g., Commission on Human Rights & Opportunities v. Hartford, Superior Court, judicial district of New Britain, Docket No. CV 09 4019485 (October 27, 2010, Cohn, J.) (50 Conn. L. Rptr. 750, 757).   Chronic is defined as, “[w]ith reference to diseases, of long duration, or characterized by slowly progressive symptoms;  deepseated and obstinate, or threatening a long continuance;—distinguished  from acute.”   (Internal quotation marks omitted.)   Gilman Brothers Co. v. Connecticut Commission on Human Rights & Opportunities, Superior Court, judicial district of Hartford, Docket No. CV 95 0536075 (May 13, 1997, McWeeny, J.).

The Connecticut Supreme Court has found that an employee suffering from hypertension was disabled under the CFEPA when the employee's doctor noted, after the employee had to take a two-week leave of absence from work as a result of high blood pressure, that the plaintiff's condition had become more serious in recent months.  Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 314 n.7, 596 A.2d 426 (1991).   Additionally, carpal tunnel syndrome diagnosed only one month prior to an employee's termination has qualified as a physical disability under the CFEPA.  Gilman Brothers Co. v. Connecticut Commission on Human Rights & Opportunities, supra, Superior Court, Docket No. CV 95 0536075.   Conversely, pregnancy complications that required an employee to be out of work for two months was found not to be a disability under the CFEPA.  Kucharski v. Cort Furniture Rental, 536 F.Sup.2d.   196 (D.Conn. December 21, 2007).

The complaint alleges that the plaintiff suffered a serious medical condition that required surgery and a blood transfusion.   In addition, she had to take a leave of absence from work for a period of three months.   The plaintiff does not allege that her condition is continuing or will require medication or additional procedures in the future.   Rather, she states in paragraph twelve of her complaint that her leave was to resolve her medical condition.   Additionally, she does not allege that her condition is subject to reoccurrences.   Even viewing the allegations in favor of the plaintiff, the court cannot infer either situation exists.   A determination of whether the plaintiff's condition qualifies as a physical disability therefore depends upon whether a condition that lasts three months is a chronic infirmity.   Much like a pregnancy complication that is of a limited duration, the plaintiff's allegation that she suffered a disability that lasted three months is insufficient to be considered chronic.   As a result, the complaint fails to allege the defendants discriminated or aided and abetted the Health Center in discriminating against the plaintiff.

-C-

Perceived Disability under the CFEPA

The defendants argue that the complaint fails to allege a claim for perceived disability because no such cause of action is recognized in Connecticut.   The defendants cite to Beason v. United Technologies, 337 F.3d 271 (2d Cir.2003), in support of their argument.   The plaintiff counters that Beason is not controlling and the court should follow decisions of the Superior Court that have refused to follow Beason and recognized a cause of action for a perceived disability.

A claim of perceived disability is one in which the employee “in fact was not disabled but the employer perceived him as such and as a result discriminated against him.”   Graham v. Boehringer Ingelheim Pharmaceuticals, Superior Court, judicial district of New Haven, Docket No. CV 04 0488908 (October 19, 2007, Corradino, J.).   There is no Connecticut appellate authority holding that a claim of perceived disability is a viable cause of action under the CFEPA.   In Beason v. United Technologies, supra, 337 F.3d 271, the Second Circuit held that Connecticut does not recognize such a claim.   The court noted that the definition of physically disabled did not include “any mention of the perception of a physical disability” although such language is found in the federal definition of physical disability as well as the CFEPA's definitions of sexual orientation and mental disability.⁵  Id., 279–80.   Numerous decisions have cited to Beason with approval.   See McGee v. New Breed Logistics, Inc., United States District Court, Docket No. 3:09–cv–89 (D.Conn. July 14, 2011) (listing cases).

The Beason decision is well-reasoned in finding that the CFEPA does not provide a cause of action for perceived disabilities.   The plain language of the statute does not include perceived disabilities.   Additionally, the legislature has specifically included “regarded as” language in defining sexual orientation and mental disability but chose not to adopt the federal definition of physical disability that included such language.   This court concludes that a cause of action for perceived disability discrimination does not exist under the CFEPA.

-D-

Failure to Allege a Protected Activity for a Retaliation Claim

The defendants argue that the complaint fails to allege a claim for retaliation because the plaintiff fails to allege that she engaged in a protected activity.   The defendants further argue that the plaintiff's medical leave is not a protected activity because she did not oppose a discriminatory employment practice or assist in a complaint process.   The plaintiff counters that her refusal to leave when she was presented with a demand letter rendered her medical leave a protected activity.

General Statutes § 46a–60(a) provides in relevant part:  “It shall be a discriminatory practice in violation of this section ․ (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person opposed any discriminatory employment practice ․” “To establish a prima facie case of retaliation, an employee must show [1] participation in a protected activity known to the defendant;  [2] an employment action disadvantaging the plaintiff;  and [3] a causal connection between the protected activity and the adverse employment action.”  (Internal quotation marks omitted.)  Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 770, 886 A.2d 1248 (2005).

“A protected activity is an action taken to protect or oppose statutorily prohibited discrimination.   These actions can include the filing of formal charges of discrimination, as well as, informal protests of discriminatory employment practices, including complaints to management, writing critical letters to customers, protecting against discrimination by industry and expressing support of co-workers who have filed formal charges ․ The objective is to forbid employers from retaliating against employees because of employees' opposition to unlawful employment practices.”  (Internal quotation marks omitted.)   Andreoni v. Forest Enterprises, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 07 6000743 (April 21, 2010, Brazzel–Massaro, J.).⁶

In the present case, in paragraph twelve of the complaint the plaintiff alleges in relevant part that the defendants “retaliated against her because she took a temporary leave to resolve a serious medical condition.”   The prohibition against retaliation is to prevent employers from striking back at an employee who opposes an unlawful employment practice.   Taking leave was not an opposition to an unlawful employment practice and is not a protected activity.   The complaint, therefore, fails to allege that the defendants retaliated against the plaintiff or aided and abetted the Health Center's retaliation against the plaintiff.

-E-

Failure to Allege a Request for an Accommodation

The defendants argue that the complaint fails to allege a claim for failure to accommodate because the plaintiff does not allege that she ever asked for an accommodation or was denied one.   The plaintiff counters the claim is based on the plaintiff's termination for using the reasonable accommodation, i.e. medical leave.

The Connecticut Supreme Court has held that “ § 46a–60(a)(1) ․ require[s] employers to make a reasonable accommodation for an employee's disability.”   Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008).   To prove a claim for accommodation under the CFEPA, the plaintiff must show “(1) he is disabled within the meaning of the [statute], (2) he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiff's] disability, did not reasonably accommodate it.”  Id. “Once a disabled individual has suggested to his employer a reasonable accommodation ․ the employer and the employee [must] engage in an informal, interactive process with the qualified individual with a disability in need of the accommodation ․ [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations ․ In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion.”  (Citation omitted;  internal quotation marks omitted.)  Id., 416.

In the present case, the plaintiff alleges that after she returned from medical leave she was met with hostility and later terminated.   In paragraph thirteen of the complaint, she alleges that the defendants “failed reasonably to accommodate the plaintiff's serious medical condition.”   The plaintiff does not allege that she requested an accommodation that was refused.   Although the plaintiff argues that the defendants' reaction to her use of medical leave was unreasonable, the issue in an accommodation claim is not how the plaintiff was treated for using an accommodation but rather whether the employer refused a request for a reasonable accommodation.   The plaintiff's bare assertion that the defendants did not reasonably accommodate her is simply a legal conclusion, unsupported by the factual allegations.   The complaint therefore fails to allege that the defendants refused to accommodate the plaintiff.

CONCLUSION

As the allegations of the complaint fail to allege a cause of action for physical discrimination, perceived discrimination, retaliation or accommodation, the defendants' motion to strike the complaint in its entirety is granted.⁷

Domnarski, J.

FOOTNOTES

FN1. Although the plaintiff refers to the Health Center as a “defendant” in the complaint, the Health Center was not served and is not a party to the present case but rather has been sued by the plaintiff in a separate action.   See Setkoski v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV 10 6012794..  FN1. Although the plaintiff refers to the Health Center as a “defendant” in the complaint, the Health Center was not served and is not a party to the present case but rather has been sued by the plaintiff in a separate action.   See Setkoski v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV 10 6012794.

FN2. The parties have filed documentary evidence and the defendants have asked this court to take judicial notice of court pleadings.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005)..  FN2. The parties have filed documentary evidence and the defendants have asked this court to take judicial notice of court pleadings.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).

FN3. The plaintiff argues that pursuant to the literal wording of the statute, “chronic” does not modify “infirmity or impairment” but rather only the words “physical handicap.”   The Supreme Court, however, has interpreted the statute so that the word “chronic” does modify both an “infirmity” and an “impairment.”   See Jackson v. Water Pollution Control Authority, 278 Conn. 692, 703, 900 A.2d 498 (2006) (“[Section] 46a–51(15) ․ includes a ‘chronic ․ infirmity ․ resulting from bodily injury ․’ ”)..  FN3. The plaintiff argues that pursuant to the literal wording of the statute, “chronic” does not modify “infirmity or impairment” but rather only the words “physical handicap.”   The Supreme Court, however, has interpreted the statute so that the word “chronic” does modify both an “infirmity” and an “impairment.”   See Jackson v. Water Pollution Control Authority, 278 Conn. 692, 703, 900 A.2d 498 (2006) (“[Section] 46a–51(15) ․ includes a ‘chronic ․ infirmity ․ resulting from bodily injury ․’ ”).

FN4. Although the court in Caruso v. Siemens Business Communication Systems, Inc., supra, 392 F.3d 66, certified to the Connecticut Supreme Court, inter alia, the question “[w]hat is the correct interpretation of “chronic” disabilities under CFEPA,” the issue was never resolved by the court as the parties reached a settlement and the certified questions were withdrawn.   See Caruso v. Siemens Business Communication Systems, Inc., 418 F.3d 164 (2d Cir.2005)..  FN4. Although the court in Caruso v. Siemens Business Communication Systems, Inc., supra, 392 F.3d 66, certified to the Connecticut Supreme Court, inter alia, the question “[w]hat is the correct interpretation of “chronic” disabilities under CFEPA,” the issue was never resolved by the court as the parties reached a settlement and the certified questions were withdrawn.   See Caruso v. Siemens Business Communication Systems, Inc., 418 F.3d 164 (2d Cir.2005).

FN5. The court did note that, although the commission has found that claims for perceived disabilities do exist, the legislative history and plain language of the statute were more persuasive.  Beason v. United Technologies, supra, 337 F.3d 271, 281–282..  FN5. The court did note that, although the commission has found that claims for perceived disabilities do exist, the legislative history and plain language of the statute were more persuasive.  Beason v. United Technologies, supra, 337 F.3d 271, 281–282.

FN6. The plaintiff cites to Ledan v. Danbury, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001301 (July 18, 2006, Sheedy, J.) [41 Conn. L. Rptr. 750].   In that case, the motion for summary judgment was denied because, although the employer argued that the employee's complaints occurred after the supposed retaliatory conduct, there was evidence that the employee had made a complaint prior to being denied her requested reclassification.   It does not support the plaintiff's contention in the present case that declining to leave the department made her previously taken medical leave a protected activity..  FN6. The plaintiff cites to Ledan v. Danbury, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001301 (July 18, 2006, Sheedy, J.) [41 Conn. L. Rptr. 750].   In that case, the motion for summary judgment was denied because, although the employer argued that the employee's complaints occurred after the supposed retaliatory conduct, there was evidence that the employee had made a complaint prior to being denied her requested reclassification.   It does not support the plaintiff's contention in the present case that declining to leave the department made her previously taken medical leave a protected activity.

FN7. The defendants also argued that the complaint should be struck as there is no individual liability under the statute.   As the plaintiff has not alleged a viable claim, this argument need not be addressed..  FN7. The defendants also argued that the complaint should be struck as there is no individual liability under the statute.   As the plaintiff has not alleged a viable claim, this argument need not be addressed.

Domnarski, Edward S., J.