Jessica Seely v. Winchester Electronics Corporation and Staffing Source, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 125)

BACKGROUND AND FACTS

Jessica Seely (“plaintiff'), commenced the action on March 4, 2011, by service upon the defendants, Winchester Electronics Corporation and Staffing Source, Inc. (“defendant”).  The plaintiff's two-count complaint alleges violations of the Connecticut Fair Employment Practices Act (CFEPA), specifically General Statutes § 46a–60(a)(1),¹ against each defendant.²

In her complaint the plaintiff alleges the following facts.   The plaintiff is a disabled military veteran who was stationed in Iraq from February 2004 through March 2005.   As a result of her military service, she suffers from posttraumatic stress disorder.³  She also has cysts on her scalp that produce chronic pain, headaches and adversely affect her concentration.

On October 13, 2008, the plaintiff began working for the defendant.   The defendant was aware that the plaintiff was a disabled veteran.   On November 3, 2008, the plaintiff notified the defendant that she required surgery involving her physical disability.   The defendant emailed the plaintiff on November 5, 2008, directing her to a website that would allow her to work from home while she was out of the office due to the surgery.   On November 7, 2008, the plaintiff's physician notified her that X rays needed to be taken in advance of the procedure, and on that same day, the plaintiff notified the defendant that she was required to have the X rays taken.   Subsequently on November 7, the defendant terminated the plaintiff's employment.   According to the plaintiff, the defendant used her upcoming medical absences for treatment and care of her physical disability as a motivating factor in terminating her, even though such absences from work constitute a reasonable accommodation.

On December 20, 2012, the defendant moved for summary judgment as to count one of the plaintiff's complaint on the grounds that:  (1) the plaintiff has failed to adduce evidence sufficient to establish two elements of a prima facie case for disability discrimination;  and (2) even if the plaintiff was capable of proving a prima face case, there is no evidence from which a jury could reasonably conclude that the defendant's legitimate business reasons for the decision to terminate the plaintiff's employment were merely a pretext and that the decision was motivated by illegal discriminatory bias.   Also on December 20, 2012, the defendant filed a memorandum of law and evidence in support of its motion for summary judgment.   On March 26, 2013, the plaintiff filed an objection to the defendant's motion, along with a memorandum of law and evidence in support of her position.   The defendant filed a reply memorandum of law in further support of its motion for summary judgment on April 18, 2013.   The defendant also filed a supplemental memorandum of law in further support of its motion on May 17, 2013.   The parties' arguments were heard at short calendar on May 6, 2013.

LAW RE SUMMARY JUDGMENT

“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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

ANALYSIS

In its motion for summary judgment, the defendant's argument is three-fold.   First, the defendant argues that the plaintiff cannot make the requisite prima facie showing that she suffers from a CFEPA covered disability in that her cysts do not amount to a chronic condition.   The defendant also asserts that even if the plaintiff's cysts were considered chronic, they do not impair her in her day-to-day activities.   Second, the defendant argues that the plaintiff cannot make the requisite prima facie showing that the defendant ended her employment on account of her alleged disability in that the defendant made it clear that it would be accommodating of any need the plaintiff had for medical treatment and that the plaintiff's supervisor was unaware of the plaintiff's November 7, 2008 medical appointment when the decision to discharge her was made.   Third, the defendant argues that the plaintiff cannot meet her ultimate burden of proving that the defendant's proffered legitimate reason for terminating her assignment was a pretext for unlawful disability-based discrimination.   The defendant asserts that the plaintiff continued to display performance-related deficiencies throughout her employment that culminated on November 6, 2008, when the plaintiff allegedly twice walked out of a training program.

The plaintiff responds to each of the defendant's arguments in turn.   Initially, she argues that she has submitted evidence that would permit a factfinder to determine that she has a CFEPA covered disability in that her physical disability is chronic and an impairment to her life.   Next, she argues that she was discriminated against for that disability and the circumstances show that when the defendant was informed of her X ray medical appointment on November 7, 2008, the defendant's response was to fire her.   The plaintiff asserts that this adverse employment action, despite the defendant's prior acquiescence with regard to her medical appointments, was for a medical appointment that would have been protected under the law if the defendant had continued to provide the reasonable accommodation it told the plaintiff that it was fine with.   Lastly, she argues that the defendant's proffered reason for her termination is a pretext to mask unlawful discrimination and termination in that:  she denies the performance-related deficiencies that the defendant accuses her of, she was not given any warnings about her performance-related deficiencies, she was prospectively fitted with new work attire for future work events the morning of her termination and the performance-related reasons for her discharge are inconsistent with the original explanation of discharge for many reasons, specifically “personal” ones.   The plaintiff also argues that she “can demonstrate that her termination was more likely caused by discriminatory animus due to the temporal proximity of the qualified leave of absence and the termination.”

In response, the defendant argues that the plaintiff's self-serving affidavit describing her physical disability as chronic and impairing, prepared in response to its motion for summary judgment, contradicts the plaintiff's deposition testimony that she suffered from occasional, episodic pain and headaches from the cysts, which only needed to be surgically removed three times over a multiple-year span.   The defendant reasserts its claim that the plaintiff is not physically disabled within the meaning of the CFEPA because she is not limited by her condition.   The defendant also asserts that “[g]iven the undisputed chronology of events establishing that [the defendant] decided to discharge [the] plaintiff before learning of her doctor's appointment, the case law relied upon by [the] plaintiff, standing for the proposition that temporal proximity between an employee's protected activity and an adverse action can establish a causal connection sufficient to prove a prima facie case for retaliation ․ is necessarily inapposite—naturally, a discharge decision cannot possibly be causally linked to an employee's subsequent protected activity.”  (Citation omitted.)   The defendant argues that taking time off for a medical appointment is not even a form of statutorily protected activity under the CFEPA.   Additionally, the defendant posits that the plaintiff cannot meet her ultimate burden of presenting admissible evidence sufficient to show discrimination “on the basis of her self-serving denial that she was inattentive during training, rank conjecture as to [the defendant's] motives and inadmissible hearsay evidence [as to what Staffing Source, Inc. allegedly told the plaintiff what the reasons for her discharge were] ․”

Additionally, the defendant has submitted a supplemental memorandum highlighting a recent Appellate Court case, Feliciano v. Autozone, Inc., 142 Conn.App. 756, 66 A.3d 911 (2013).   The defendant argues, under the auspices of that case, that a plaintiff alleging disability discrimination under the CFEPA cannot survive summary judgment where she “[does] not produce any medical evidence from which a reasonable jury could find that she is disabled within the meaning of the [CFEPA].”  Id., 764.   The defendant concedes that the plaintiff does submit medical notes documenting a surgical procedure to remove the cysts, but that those medical notes go to the treatment of the cysts and not to whether the plaintiff can “establish either temporary or permanent disability, which is needed to place her within the protected class of disabled persons.”  Id. Thus, the defendant argues that under Feliciano, the plaintiff is not capable of making a prima facie case in that she cannot show that she is physically disabled under the CFEPA.   The plaintiff has not submitted a response to the defendant's supplemental memorandum.

Initially, the court will address the defendant's contention that the plaintiff cannot make the requisite prima facie showing that she suffers from a CFEPA covered disability.  “Although this case is based solely on Connecticut law, [the court] review[s] federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.”  Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).  “The framework [the] court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny.”  Lyon v. Jones, 291 Conn. 384, 406–07, 968 A.2d 416 (2009).  “In the disability context, a prima facie case for disparate treatment is established under the McDonnell Douglas Corp. framework if the plaintiff shows:  (1) he suffers from a disability or handicap, as defined by the [applicable statute];  (2) he was nevertheless able to perform the essential functions of his job, either with or without reasonable accommodation;  and that (3) [the defendant] took an adverse employment action against him because of, in whole or in part, his protected disability.”  (Internal quotation marks omitted.)  Curry v. Allen S. Goodman, Inc., 286 Conn. 390, 426, 944 A.2d 925 (2008).

“The burden of establishing a prima facie case is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder ․ 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.”  (Citation omitted.)  Crane v. Trinity College, supra, 259 Conn. 638.  “Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.”  Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 108.

The defendant, in its supplemental memorandum, directs the court to the recent Appellate Court case, Feliciano v. Autozone, Inc., supra, 142 Conn.App. 756.   In that case, a plaintiff brought a reasonable accommodation claim of disability discrimination,⁴ inter alia, against her employer.   Reviewing the trial court's granting of the defendant's motion for summary judgment, the Appellate Court stated that “[t]he plaintiff failed to submit any medical evidence of [the] alleged disability to raise a genuine issue of material fact.”  Id., 763.   Looking to federal law, as Connecticut courts do in state employment discrimination cases;  Crane v. Trinity College, supra, 259 Conn. 636–37 n.6;  the court cited to a Connecticut federal district court case for the proposition that “[c]ourts in the Second Circuit have consistently held that when a plaintiff fails to offer any medical evidence substantiating the specific limitations to which [s]he claims [s]he is subject due to h[er] conditions, [s]he cannot establish that [s]he is disabled within the meaning of the [Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.]  ․ Because [the][p]laintiff provides no evidence of h[er] disability beyond h[er] own testimony ․ from which the extent or duration of h[er] impairment or limitation may be discerned, and more is required in the Second Circuit, [the][p]laintiff has failed to demonstrate [Americans with Disabilities Act] or [Connecticut Fair Employment Practices Act] disability, and summary judgment will enter on h[er] [Connecticut Fair Employment Practice Act] claim.” ⁵  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Feliciano v. Autozone, Inc., supra, 142 Conn.App. 763–64, quoting Buotote v. Illinois Tool Works, Inc., 815 F.Sup.2d 549, 557–58 (D.Conn.2011).

The Feliciano court “agree[d] with the [trial] court that this kind of expert evidence, which was not proffered by the plaintiff, was necessary in order for [the] claim to [have] survive[d] the defendant's motion for summary judgment.   The plaintiff did not produce any medical evidence from which a reasonable jury could [have found] that she [was] disabled within the meaning of the [CFEPA].   The plaintiff, therefore, [could not have] establish[ed] either temporary or permanent disability, which [was] needed to place her within the protected class of disabled persons.  [The court] reject[ed] the plaintiff's claim on appeal that her unsupported testimony that she was disabled create[d] any issue of material fact regarding her claim of disability discrimination.   The plaintiff's reasonable accommodation disability discrimination claim, thus, fail[ed] to survive the defendant's motion for summary judgment.”  Feliciano v. Autozone, Inc., supra, 142 Conn. 764.

In the present case, the plaintiff brings a state law claim under the CFEPA.   General Statutes § 46a–51(15) provides the definition of “physically disabled” for purposes of the CFEPA and states:  “ ‘Physically 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.”   This definition is broader than that under the Americans with Disabilities Act (ADA).   See Beason v. United Technologies Corp., 337 F.2d 271, 278 (2d Cir.2003) (collecting cases finding that the CFEPA, unlike the ADA, does not require the plaintiff to show that she is substantially limited in a major life activity).   The plaintiff must, however, still make out a prima facie case that she is disabled under the CFEPA by submitting the proper evidence to raise a genuine issue of material fact.

To be physically disabled under the CFEPA, the plaintiff's disability must be chronic and a physical handicap, infirmity or impairment.  “The statute [§ 46a–51(15) ] does not define chronic, but courts have defined it as marked by long duration or frequent recurrence or always present or encountered ․ With reference to diseases, the term chronic has been defined to mean of long duration, or characterized by slowly progressive symptoms;  deepseated or obstinate, or threatening a long continuance;  distinguished from acute.”   (Internal quotation marks omitted.)  Martinez v. State of Connecticut State Library, 817 F.Sup.2d 28, 51 (D.Conn.2011).  “[T]he accepted definition of the term requires that any inquiry into the chronic nature of a condition must ․ consider whether the condition is responsive to medical treatment and ameliorative measures ․ If [the] plaintiff does not suffer from symptoms of her condition when she is on her medication and she is able to take her medication such that she is not chronically handicapped, infirm, or impaired then she would not be actually disabled under ․ § 46a–60(a)(1).”  (Citation omitted;  internal quotation marks omitted.)   Medvey v. Oxford Health Plans, Inc., United States District Court, District of Connecticut, Docket No. CV 1977 (D.Conn. September 20, 2005).   In Medvey, the court stated that “[the] [d]efendant correctly argues ․ [that] a condition may be incurable, yet its symptoms may respond to treatment ․ It is undisputed that [the] plaintiff's condition responds to treatment with small doses of the medication Valium and, failing that, [the] plaintiff compensates by reducing the pace and intensity of her work ․ It is for this reason that [the] plaintiff's condition cannot be considered chronic for the purposes of ․ § 46a–60(a)(1).”  (Citations omitted.)  Id.

The Medvey court also found that “[the] plaintiff's condition [did not] rise to the level of a ‘physical handicap, infirmity, or impairment’ as those terms are commonly defined and as required by [the] CFEPA.   In turn, those terms are commonly defined as follows:  Handicap—a disadvantage that makes achievement unusually difficult;  especially:  a physical disability that limits the capacity to work ․ Infirm—not strong or sound physically;  of poor or deteriorated vitality especially as a result of age;  feeble ․ Impair—to make worse;  diminish in quantity, value, excellence, or strength;  do harm to;  damage, lessen.”  (Citations omitted.)  Medvey v. Oxford Health Plans, Inc., supra, United States District Court, District of Connecticut, Docket No. CV 1977.   The court found that “[n]one of [the] definitions aptly describe[d] [the] plaintiff's condition.  [The][p]laintiff cannot be said to be handicapped, as she not only was not limited in her capacity to work, but she also surpassed normal achievement in her job performance as evidenced by consistently positive performance reviews and compliments from clients ․ [The][p]laintiff also continued normal achievement in her personal life as well, continuing to care for her household, travel, drive, exercise, and maintain hobbies ․ For similar reasons, [the] plaintiff is not impaired within the meaning of [the] CFEPA.   Finally, plaintiff's active life of travel, exercise, and daily activities belie any claim that she could be considered infirm.   Because [the] plaintiff cannot establish that she was disabled within the meaning of [the] CFEPA, [the] plaintiff is unable to make out a prima facie case of discrimination under the statute.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Here, at her deposition,⁶ the plaintiff testified that “[the cysts] can rupture.   They're very sore.   I get headaches.   They need to be removed at times, especially when they can rupture, they get infected.”  (Plaintiff's Deposition, p. 112.)   When asked if she was incapacitated at all after her first surgery for the cysts in 2005, she answered “[n]o.   That's why I asked if I could work from home.   The only side effects are a little—you know, with the anesthesia, a little drowsy for a little while.   Other than that, there's no pain pills.   There's none of that.   Just need to rest so that the sutures could not—they could stay in place, time to heal.”  Id., 115.   When asked if she always has the cysts, she responded “[y]es.   I guess they're always going to be there.”  Id., 116.   The plaintiff was also asked if the cysts had any disruptive effect on her day-to-day activities, and she responded that that was “[p]retty much” right.  Id., 118.   She stated that “[t]here's just certain things I can do.   Sometimes they're very sore to touch, things of that nature.   I mean, I can still function doing a job, if that's what you're asking.”  Id. The plaintiff confirmed that the cysts “only become problematic if they're on the verge of rupturing,” and when asked if there was any medical treatment that she had for the cysts, she responded “[o]ther than the surgery, no.   There's nothing that I can do.   I do put warm compresses on them when they become sore, you know, take Tylenol when I have headaches or things of that nature.   There's nothing they can do to stop them.”  Id. When asked how she ascertains when it is time to go to the doctor, she responded “[b]asically, they are very, very red and they're very sore and the pain is excruciating.   And they'll leak, so then they smell.”  Id., 121.

The plaintiff and the questioning attorney then engaged in the following colloquy at the plaintiff's deposition:

Q: And what do you do to deal with the pain that you experience from time to time?

A: Either Tylenol, Motrin and warm compress.

Q: Okay. And during the period of time when you're experiencing this pain or discomfort, are you still able to work if you were employed at the time?

A: Yes.

Q: Is there anything you can't do?

A: No. There's nothing that I wouldn't be able to do if they weren't like leaking.   Obviously I'm not going to sit next to somebody and they're leaking.   The only thing is I would have to wear my hair different.   It would have to be up instead of down which that would be different.

Q: But it doesn't prevent you from taking care of your children?

A: No.

Q: Or preparing meals at home?

A: No.

Q: Or going to the supermarket or otherwise performing day-to-day activities;  is that right?

A: No, correct.

Q: And other than taking Advil or Tylenol or using a warm compress, is there anything different that you do on a day when you're experiencing symptoms from the cysts than you would do on a day that you're not experiencing those sort of symptoms?

A: Yes. If they're very sore and there's like a head to them, I'll try to push on them to alleviate some of the—because a lot of the pressure is the stuff on the inside.   So if it had a head on it, that means there's an opening.   I try to get some of the junk out of there to alleviate the pressure.

Q: But in terms of your daily activities—

A: There's nothing different.

Q: So if you need to go to the CVS, you're not going to say, I can't go because this is bothering me?

A: Correct.

(Plaintiff's Deposition, pp. 122–24.)

The plaintiff also submits evidence in the form of a twenty-six -page medical document entitled “Radiology Reports” and “Progress Notes.”  (Plaintiff's Exhibit G, Radiology Reports and Progress Notes.)   Included in that document are notes that pertain to the plaintiff's cysts and their effect on her.   In relevant part, the report states, on July 18, 2008, that “[the plaintiff] ․ [complains of] multiple itchy and painful cysts on her scalp, which are increasing in [number] for a year.”  Id., 12.   As part of the same set of notes, the report states:  “Sebaceous cysts on the scalp:  painful while combing [hair].  [W]ill get general surgery consult for excision.  [N]o signs of infection, no abx for now.”  Id., 14.   In an addendum added on July 23, 2008, the notes state:  “Multipl[e] scalp lipomas [versus] [sebaceous] [cysts] that are [bothersome] and painful when combing her hair.”  Id., 15.

The court finds that this evidence is not sufficient to raise a genuine issue of material fact as to whether the plaintiff was disabled under the CFEPA.   The evidence shows that the plaintiff's cysts respond to “medical treatment and ameliorative measures”;  Medvey v. Oxford Health Plans, Inc., supra, United States District Court, District of Connecticut, Docket No. CV 1977;  including surgery, pain-relievers and warm compresses, and that, although long-lasting, the cysts cannot be considered chronic under the CFEPA.   The evidence also clearly shows that the cysts do not rise to the level of a handicap, infirmity or impairment, as the plaintiff is able to function both at work and while performing day-to-day activities.   While the plaintiff, under the CFEPA, does not need to show that she is substantially limited in a major life activity as she would under the ADA, the plaintiff still must proffer evidence to show that she meets the CFEPA definition of physically disabled, and she has not done so in this case.

As to the medical evidence that the plaintiff submits, there is no medical evidence supporting the plaintiff's own statements about her cysts “from which the extent or duration of h[er] impairment or limitation may be discerned ․” (Internal quotation marks omitted.)  Feliciano v. Autozone, Inc., supra, 142 Conn.App. 763.   This medical evidence supports the plaintiff's claim that the cysts were painful, particularly while combing her hair.   It does not, however, “substantiat[e] the specific limitations to which [s]he claims [s]he is subject due to h[er] conditions ․” (Internal quotation marks omitted.)   Id. In this case, the plaintiff claims limitations beyond pain while combing her hair.   For instance, in her complaint, the plaintiff alleges that “[t]he cysts produce chronic pain and headaches,” and “[t]he cysts adversely affect [her] concentration.”   The plaintiff also states in her affidavit that “[t]he cysts produce chronic pain, headaches and a discharge with odor,” and that “[t]he cysts affect [her] ability to concentrate.”  (Plaintiff's Exhibit A, Affidavit of Jessica Seely, p. 1.) In her objection to the defendant's motion for summary judgment, the plaintiff argues that she is disabled under the CFEPA and that her cysts are an impairment in that “[the][p]laintiff is damaged, diminished in strength and made worse by the excruciating pain she suffers because of the cysts, as well as the odor the discharge from the cysts cause.”   The medical evidence the plaintiff submits does not substantiate that the cysts are ever-present nor does it substantiate the extent or the type of the pain she experiences.

In light of the deposition evidence that the defendant submits to carry its initial burden on summary judgment, the plaintiff has not submitted sufficient evidence to create a genuine issue as to a material fact involving her alleged disability, and subsequently cannot make her prima facie case necessary for her claim of disability discrimination.   Because the court deems this issue to be dispositive, it need not consider the other arguments proffered by the parties.

ORDER

For the reasons stated above, the defendant's motion for summary judgment is hereby granted.

Devine, J.

FOOTNOTES

FN1. General Statutes § 46a–60(a)(1) provides:  “It shall be a discriminatory practice in violation of this section:  For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, 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 race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness.”.  FN1. General Statutes § 46a–60(a)(1) provides:  “It shall be a discriminatory practice in violation of this section:  For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, 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 race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness.”

FN2. Winchester Electronics Corporation, named in count one, is the only defendant relevant to this memorandum of decision, and will henceforth be referred to as the defendant..  FN2. Winchester Electronics Corporation, named in count one, is the only defendant relevant to this memorandum of decision, and will henceforth be referred to as the defendant.

FN3. The plaintiff is not alleging that the defendant discriminated against her due to her posttraumatic stress disorder, as she admits that she never disclosed this condition to the defendant.   See (Plaintiff's Exhibit A, Affidavit of Jessica Seely, p. 1.) (“The only disability that the defendants knew about and that is the subject of this litigation is the recurring cysts.”).  FN3. The plaintiff is not alleging that the defendant discriminated against her due to her posttraumatic stress disorder, as she admits that she never disclosed this condition to the defendant.   See (Plaintiff's Exhibit A, Affidavit of Jessica Seely, p. 1.) (“The only disability that the defendants knew about and that is the subject of this litigation is the recurring cysts.”)

FN4. While the present case deals with a disparate treatment claim and Feliciano v. Autozone, Inc., 142 Conn.App. 756, 66 A.3d 911 (2013), dealt with a reasonable accommodation claim, the court finds this distinction inapposite when dealing with the disability prong of the plaintiff's required prima facie case.   Both employment paradigms require the plaintiff to make a prima facie showing that she is, for the reasonable accommodation test, “disabled within the meaning of the [statute]”;  Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008);  or, for the disparate treatment test, that she “suffers from a disability or handicap, as defined by the [applicable statute].”  Id., 426.  “No matter the type of discrimination alleged—either disparate treatment or failure to provide a reasonable accommodation—a plaintiff must establish first that he was a qualified individual with a disability.”  (Internal quotation marks omitted.)  Sieberns v. Wal–Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir.1997)..  FN4. While the present case deals with a disparate treatment claim and Feliciano v. Autozone, Inc., 142 Conn.App. 756, 66 A.3d 911 (2013), dealt with a reasonable accommodation claim, the court finds this distinction inapposite when dealing with the disability prong of the plaintiff's required prima facie case.   Both employment paradigms require the plaintiff to make a prima facie showing that she is, for the reasonable accommodation test, “disabled within the meaning of the [statute]”;  Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008);  or, for the disparate treatment test, that she “suffers from a disability or handicap, as defined by the [applicable statute].”  Id., 426.  “No matter the type of discrimination alleged—either disparate treatment or failure to provide a reasonable accommodation—a plaintiff must establish first that he was a qualified individual with a disability.”  (Internal quotation marks omitted.)  Sieberns v. Wal–Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir.1997).

FN5. The court noted that “[d]espite the fact that the [Connecticut Fair Employment Practices Act's] definition of physical disability is broader than the [Americans with Disabilities Act's definition]”;  Beason v. United Technologies Corp., 337 F.3d 271, 278 (2d Cir.2003);  the plaintiff offered no medical evidence of her alleged disability.”  (Emphasis in original;  internal quotation marks omitted.)  Feliciano v. Autozone, Inc., supra, 142 Conn.App. 764..  FN5. The court noted that “[d]espite the fact that the [Connecticut Fair Employment Practices Act's] definition of physical disability is broader than the [Americans with Disabilities Act's definition]”;  Beason v. United Technologies Corp., 337 F.3d 271, 278 (2d Cir.2003);  the plaintiff offered no medical evidence of her alleged disability.”  (Emphasis in original;  internal quotation marks omitted.)  Feliciano v. Autozone, Inc., supra, 142 Conn.App. 764.

Devine, James J., J.