Assunta Amarena v. Connecticut Department of Public Health (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 117)

The plaintiff brought this employment discrimination action by Complaint dated September 6, 2011, seeking recovery from the State of Connecticut Department of Health (“DPH”) for alleged violations of the Connecticut Fair Employment Practices Act (“CFEPA”).

The defendant filed a Motion for Summary Judgment dated December 3, 2012, the plaintiff filed an Objection dated January 22, 2013, and the defendant filed a Reply Brief dated February 14, 2013.   The parties argued oral argument before the court on March 18, 2013.

I

Facts

The following facts are undisputed:  Since 1997, the plaintiff Assunta Amarena has worked in the Practitioner Investigations Unit of DPH (“the Unit”), first as a Clerk Typist and since 1999, as an Office Assistant.   Ms. Amarena has a hearing impairment, which consists of a complete loss of hearing in her right ear and severe loss of hearing in her left ear.   Ms. Amarena's duties as an Office Assistant include answering the telephone, processing mail, preparing letters, data entry and case tracking.   She is the only Office Assistant in the Unit and the only person responsible for handling incoming telephone calls.

In April 2010, Ms. Amarena applied for the position of Special Investigator at DPH. She was not hired for the position, which went to an individual with 14 years experience as a police officer.   On June 9, 2010, Ms. Amerena received a written warning from DPH stemming from two incidents in which she allegedly displayed an unprofessional attitude with members of the public.

On August 27, 2010, Ms. Amarena asked DPH to provide her with accommodations for her hearing impairment, specifically the provision of a “Hamilton system telephone,” relocation of her cubicle to a quieter location in the office, and a change to a position compatible with her degree and experience.   In response to Ms. Amarena's accommodation requests, DPH provided Ms. Amarena with an amplification system and a “CapTel” telephone,¹ but refused to relocate her desk to a quieter area of the office and did not provide her with a different position.

On September 10, 2010, Ms. Amarena filed a complaint against DPH with the Connecticut Commission on Human Rights and Opportunities (“CHRO”).   On June 10, 2011, CHRO issued a draft finding of no probable cause for her claim and issued a Release of Jurisdiction letter on June 22, 2011.

II

Discussion of Law

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Connecticut Medical Insurance Co. v. Kulikowski, 286 Conn. 1, 4–5 (2008).

In view of the fact that any complaint filed pursuant to CFEPA must be filed within 180 days after the alleged discrimination, Conn. Gen.Stat. § 46a–82(f), any allegations of behavior occurring prior to March 2010, which is 180 days from the filing of Ms. Amarena's CHRO complaint, are timed barred and the court will not consider them in rendering its decision.

A) Is the Defendant Entitled to Judgment as a Matter of Law on the Plaintiff's Discrimination Claims?

Ms. Amarena argues that DPH discriminated against her based on her hearing impairment for the following reasons:  (1) She was required to perform a greater portion of telephone responsibilities for her position;  (2) She was reprimanded because of her disability;  and (3) She was denied a promotion to the position of “Special Investigator.”

Ms. Amarena has worked as an office assistant in her unit of the DPH since 1997 and continued her job responsibilities of answering the telephone until her request for accommodations in August 2010.   Ms. Amarena is the only office assistant in her unit of the DPH and is responsible for answering the telephone.   The fact that Ms. Amarena was reprimanded for unprofessional behavior when the DPH received two separate complaints from members of the public does not serve as a basis for concluding that she was discriminated against because of her hearing disability.   Lastly, DPH has set forth facts demonstrating that Ms. Amarena was not denied a promotion to “Special Investigator” because of her hearing impairment, but was denied the promotion because a candidate, who had 14 years of experience as a police officer, was more qualified for the position.

In order to establish a discrimination claim, Ms. Amarena must prove that an adverse employment action took place under circumstances giving rise to an inference of discrimination.  Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705–06 (2006).   Unfortunately for Ms. Amarena, the undisputed facts in this case as set forth herein fail to support the conclusion that Ms. Amarena was discriminated against on the basis of her hearing impairment, entitling defendant to judgment as a matter of law.

B) Is the Defendant Entitled to Judgment as a Matter of Law on the Plaintiff's Claim that DPH failed to Accommodate her Disability?

Ms. Amarena argues that DPH failed to accommodate her disability after she requested accommodations in August 2010.   Ms. Amarena's accommodation requests consisted of the provision of a “Hamilton system telephone,” relocation of her cubicle to a quieter location in the office, and a different position.   In response to Ms. Amarena's accommodation requests, the DPH provided Ms. Amarena with an amplification system and a “CapTel” telephone, but refused to relocate her desk to a quieter area in the office.   As relates to the desk relocation issue, the evidence indicates that DPH considered the request, but determined that it would impair Ms. Amarena's ability to perform her duties as an office assistant.   DPH also considered building taller walls around her desk to block out excessive noise, but determined that such a measure would prove too costly.

The critical issue is whether DPH failed to make reasonable accommodations for her disability.  Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415 (2008).   DPH can argue that the accommodation is not reasonable if it creates an undue hardship on the business.  Id. at 416.   Further, once an employee has requested an accommodation, federal law requires the employer and employee to engage in an informal, interactive process to identify the limitations of the disability and reasonable recommendations that could overcome those limitations.  Id. In addition, under Connecticut law, employers are not obligated to provide employees the accommodations they request or prefer but, rather, employers need only to provide some reasonable accommodation.   Ezikovich v. Comm'n on Human Rights & Opportunities, 57 Conn.App. 767, 775 (2000).   Ultimately, however, the questions of whether provision of the CapTel phone constituted a reasonable accommodation and whether the DPH's refusal to relocate Ms. Amarena's desk or to construct taller walls around her desk was reasonable present genuine issues of material fact.

C) Is the Defendant Entitled to Judgment as a Matter of Law on the Plaintiff's Claim that DPH Retaliated against Her?

Ms. Amarena argues that the DPH retaliated against her opposition to unlawful discrimination (i.e., the filing of her complaint with the CHRO) by requiring her to perform a greater share of telephone duties, reprimanding her for unprofessional behavior, and denying a promotion to the “Special Investigator” position.   An employee claiming that its employer retaliated against her must demonstrate, among other elements, that the employee suffered an adverse employment action.   Ms. Amarena, however, has failed to demonstrate that she suffered an adverse action by the DPH. Ms. Amarena filed a complaint with the CHRO in September 2010, while both the reprimands she received for unprofessional behavior and DPH's refusal to promote her to “Special Investigator” predated her complaint with the CHRO.

Even if these events did not predate Ms. Amarena's complaint, DPH has demonstrated nondiscriminatory reasons for its actions and decisions.   Specifically, the DPH demonstrated that it received two separate complaints from members of the public regarding her unprofessional behavior, and that a more qualified candidate was hired for the “Special Investigator” position.   Moreover, Ms. Amarena has not demonstrated that she was allocated a greater portion of telephone responsibilities due to her complaint with the CHRO. As previously noted, Ms. Amerena was only office assistant in her department, and thus, was largely responsible for answering the telephone.   For the forgoing reasons, Ms. Amarena has not demonstrated any issues of material fact demonstrating that she was retaliated against because she opposed unlawful discrimination.

III

Conclusion

Judgment shall enter in the defendant's favor on the discrimination and retaliation claims set forth in Counts One and Three of the plaintiff's Amended Complaint.   Defendant's Motion for Summary Judgment on Count Two of the plaintiff's Amended Complaint regarding DPH's alleged failure to make reasonable accommodations is hereby denied.

James W. Abrams, Judge

FOOTNOTES

FN1. The evidence reflects the fact that both the Hamilton phone and the CapTel phone are recommended by the state Department of Rehabilitation Services and provide similar assistance to users with hearing impairments..  FN1. The evidence reflects the fact that both the Hamilton phone and the CapTel phone are recommended by the state Department of Rehabilitation Services and provide similar assistance to users with hearing impairments.

Abrams, James W., J.