Wanamaker v Town of Westport Bd of Educ - Working Together€¦ · Wanamaker v. Town of Westport Bd. of Educ., --- F.Supp.2d ---- (2014) 2014 WL 1281937 Wanamaker,

Wanamaker v. Town of Westport Bd. of Educ., --- F.Supp.2d ---- (2014)

2014 WL 1281937

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2014 WL 1281937Only the Westlaw citation is currently available.

United States District Court,D. Connecticut.

Sally J. WANAMAKER, Plaintiff,v.

TOWN OF WESTPORT BOARD OF EDUCATION,Defendant.

No. 3:11–CV–1791 MPS. | Signed March 27, 2014.

SynopsisBackground: Computer teacher at public school whosetenured employment had been terminated following herpregnancy leave filed suit against school district andsuperintendent alleging violations of Family and MedicalLeave Act (FMLA), Americans with Disabilities Act(ADA), and Connecticut Fair Employment Practices Act(CFEPA), and claim for breach of contract underConnecticut law. School district moved for summaryjudgment.

Holdings: The District Court, Michael P. Shea, J.,adopted report and recommendation of William I.Garfinkel, United States Magistrate Judge, and held that:

[1] teacher was not collaterally estopped from bringingdiscrimination claims;

[2] teacher received full 12-week leave to which she wasentitled under FMLA;

[3] there was no evidence that reason for termination waspretextual;

[4] fact issues precluded summary judgment on ADAclaims; and

[5] fact issues precluded summary judgment on pregnancydiscrimination claim under CFEPA.

Motion granted in part and denied in part.

West Headnotes (21)

[1] EducationDetermination

Findings by “Impartial Hearing Panel” thatconsidered whether computer teacher’s contractat public school was properly terminated underConnecticut law did not collaterally estop herfrom re-litigating whether computer technologyand classroom teaching assignments weredifferent enough to support discriminationclaims under Family and Medical Leave Act(FMLA), Americans with Disabilities Act(ADA), and Connecticut Fair EmploymentPractices Act (CFEPA); panel made clear that itdid not mean that teacher was precluded fromlitigating discrimination claims, conclusion thatteacher abandoned her position was not findingof fact, but rather characterization of teacher’sbehavior used to support termination, andunderlying finding of fact that teacher “did notaccept a position of classroom teacher on herreturn from unpaid leave, and did not report forthe classroom teacher assignment” did notpreclude teacher from asserting that refusal byschool district to reinstate her to computerteaching position was adverse employmentaction. 29 U.S.C.A. § 2612(a)(1); 42 U.S.C. §12112(a); C.G.S.A. §§ 10–151(d), 46a–60(a)(1).

Cases that cite this headnote

[2] JudgmentScope and Extent of Estoppel in General

In Connecticut, to be subject to collateralestoppel, an issue must have been (1) fully andfairly litigated, (2) actually decided, (3)necessary to the judgment in the first action, and(4) identical to the issue to be decided in thesecond action.


[3] JudgmentScope and Extent of Estoppel in General


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Under Connecticut law, issue preclusionexpresses no more than the fundamentalprinciple that once a matter has been fully andfairly litigated, and finally decided, it comes torest.


[4] Labor and EmploymentDenial of or Interference with Rights in

General

To establish a prima facie case of interferencewith Family and Medical Leave Act (FMLA)rights, a plaintiff must establish five elements:(1) that she is an eligible employee under theFMLA, (2) that the defendant is an employer asdefined by the FMLA, (3) that she was entitledto leave under the FMLA, (4) that she gavenotice to the defendant of her intention to takeleave, and (5) that she was denied benefits towhich she was entitled under the FMLA. 29U.S.C.A. § 2615(a)(1).


[5] Labor and EmploymentOther Particular Rights or Violations

Computer teacher at public school received full12-week leave to which she was entitled underFamily and Medical Leave Act (FMLA), thusprecluding her FMLA interference claim againstschool district. 29 U.S.C.A. § 2615(a)(1).


[6] Labor and EmploymentEquivalent Position

Failure to reinstate an employee to a priorposition or its equivalent following Family andMedical Leave Act (FMLA) leave is a properly

pled FMLA interference claim. 29 U.S.C.A. §2615(a)(1).


[7] Labor and EmploymentAbility to Perform

At expiration of 12 weeks of Family andMedical Leave Act (FMLA) leave, computerteacher at public school was not medically ableto return to work, and thus was not entitled toreinstatement to same or equivalent position,precluding her FMLA interference claim againstschool district. 29 U.S.C.A. § 2615(a)(1); 29C.F.R. § 825.216(c).


[8] Labor and EmploymentReinstatement; Restoration

A claim for interference on the basis of a failureto reinstate is not cognizable as a violation ofFamily and Medical Leave Act (FMLA), wherethe plaintiff remained on leave beyond theexpiration of her FMLA leave. 29 U.S.C.A. §2615(a)(1).



School district had a legitimate, nonretaliatoryreason for terminating employment of computerteacher in elementary school, since whenteacher’s Family and Medical Leave Act(FMLA) leave expired, teacher was medicallyunable to return to work for more than a year. 29U.S.C.A. § 2615(a)(1); 29 C.F.R. § 825.216(c).



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School district’s legitimate, nonretaliatoryreason for terminating employment of computerteacher in elementary school, that she was notmedically able to return to work at time Familyand Medical Leave Act (FMLA) leave expired,was not pretext for retaliation in violation ofFMLA; teacher was not terminated until 15months after her FMLA leave expired, and thus,temporal proximity between teacher’s exerciseof her FMLA rights and her termination did notexist, and there was no evidence that exercise ofrights under FMLA was motivating factor fortermination. 29 U.S.C.A. § 2615(a)(1); 29C.F.R. § 825.216(c).


[11] Civil RightsContinuing Violations; Serial, Ongoing, or

Related Acts

Each discrete discriminatory act by schooldistrict started a new clock for 300-day windowfor filing charges with Equal EmploymentOpportunity Commission (EEOC), and thuscontinuing violation rule did not cure timelinessof computer teacher’s Americans withDisabilities Act (ADA) discrimination claimsarising from acts which occurred more than 300days prior to computer teacher’s filing ofcharges with EEOC. 42 U.S.C.A. § 12117(a).


[12] Civil RightsPractices Prohibited or Required in General;

Elements

To make out a prima facie case of disabilitydiscrimination with respect to her termination

and/or failure to reinstate her to her originalposition under Americans with Disabilities Act(ADA), plaintiff must show that (1) she is aperson with a disability under the meaning ofthe ADA, (2) defendant is an employer subjectto the ADA, (3) she could perform the essentialfunctions of her job with or without reasonableaccommodation, and (4) she was terminated orsuffered some other adverse employment actionbecause of her disability. 42 U.S.C.A. §12112(a).


[13] Civil RightsIn General; Elements of Accommodation

Claims

To make out a prima facie case of disabilitydiscrimination under Americans withDisabilities Act (ADA) arising out ofdefendant’s failure to accommodate her,plaintiff must show that (1) she is a person witha disability within the meaning of the ADA, (2)defendant is an employer covered by the ADAand had notice of her disability, (3) withreasonable accommodation, she could performthe essential functions of her job, and (4)defendant refused to make suchaccommodations. 42 U.S.C.A. § 12112(a).


[14] Federal Civil ProcedureEmployees and Employment Discrimination,

Actions Involving

Genuine issue of material fact existed regardingwhether computer teacher in elementary schoolcould perform essential functions of job at timeshe was terminated from school, precludingsummary judgment on teacher’s Americans withDisabilities Act (ADA) discrimination claimagainst school district. 42 U.S.C.A. § 12112(a);20 C.F.R. § 1630.2(n)(1).



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[15] Civil RightsRequesting and Choosing Accommodations;

Interactive Process; Cooperation

Public school district was under an obligation toengage in an interactive process regarding areasonable accommodation for computer teacherunder Americans with Disabilities Act (ADA),where school district was aware of teacher’sdisability. 42 U.S.C.A. § 12112(a).


[16] Civil RightsAdverse Actions in General

An “adverse employment action” underAmericans with Disabilities Act (ADA) is amaterially adverse change in the terms andconditions of employment; an employee neednot show that he or she was formally demoted orterminated. 42 U.S.C.A. § 12112(a).


[17] Civil RightsAdverse Actions in General

An alteration of an employee’s job duties mayqualify as a materially adverse change underAmericans with Disabilities Act (ADA) where italters the terms and conditions of theemployee’s employment in a materially negativeway. 42 U.S.C.A. § 12112(a).


[18] Civil RightsParticular Cases

Computer teacher produced sufficient evidenceto meet her initial burden of establishing a primafacie case of disability discrimination underAmericans with Disabilities Act (ADA);teacher, a tenured teacher with nearly ten yearsof computer teaching experience, who wasdisabled, was replaced by a non-disabled,non-tenured teacher with little if any computerteaching experience, and teacher producedevidence that school district officials aware ofboth her situation, and the health problems ofher child. 42 U.S.C.A. § 12112(a).



Actions Involving

Genuine issue of material fact existed regardingwhether school district’s proffered reason forterminating computer teacher at elementaryschool was pretext for discrimination,precluding summary judgment on teacher’sAmericans with Disabilities Act (ADA) andConnecticut Fair Employment Practices Act(CFEPA) discrimination claims against schooldistrict. 42 U.S.C.A. § 12112(a); C.G.S.A. §46a–60(a)(1).


[20] Civil RightsElements of Discrimination Claims in

General

While Connecticut Fair Employment PracticesAct (CFEPA) and the Americans withDisabilities Act (ADA) are not identical,Connecticut courts apply the same standards toanalyze CFEPA disability claims as are appliedto ADA disability claims. 42 U.S.C.A. §12112(a); C.G.S.A. § 46a–60(a)(1).



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Actions Involving

Genuine issue of material fact existed regardingwhether classroom teaching position offered toformer computer teacher at elementary schoolwas an “equivalent” position to computerteaching position, precluding summaryjudgment on teacher’s pregnancy discriminationclaim under Connecticut Fair EmploymentPractices Act (CFEPA). C.G.S.A. §46a–60(a)(7)(D).


Attorneys and Law Firms

Jeffrey S. Bagnell, Scott R. Lucas, Lucas Bagnell VargaLLC, Southport, CT, for Plaintiff.

Johanna G. Zelman, Michael J. Rose, Robin B. Kallor,Rose Kallor LLP, Hartford, CT, for Defendant.

Opinion

RULING ON MOTION FOR SUMMARY JUDGMENT

MICHAEL P. SHEA, District Judge.

*1 After reviewing the record, the Court OVERRULESthe Defendant’s Objection [Doc. # 95] and ADOPTSMagistrate Judge Garfinkel’s Recommended Ruling [Doc.# 90]. Defendant’s Motion for Summary Judgment [Doc.# 63] is GRANTED IN PART AND DENIED IN PART,as set forth in Magistrate Judge Garfinkel’sRecommended Ruling. The Court adds only the followingcomments on the collateral estoppel argument in theDefendant’s Objection.

[1] Defendant argues that findings by the “ImpartialHearing Panel” that considered whether Plaintiff’scontract was properly terminated under Conn. Gen.Stat.Sec. 10–151(d) collaterally estop her from re-litigatingcertain issues here. While I agree that findings of factmade by the Panel may not be re-litigated in this

proceeding, see Matusick v. Erie County Water Auth., 739F.3d 51 (2d Cir.2014), none of the findings Defendantcites involved issues identical to those being contested inthis lawsuit. For example, Defendant argues that thePanel’s finding that the computer technology andclassroom teaching assignments are “interchangeable”and that “the essential responsibilities of the positions arethe same” (Def.’s Obj. at 18) precludes re-litigation ofseveral issues in this action. Whatever that finding mighthave meant in the contract-termination proceeding beforethe Impartial Panel, the Panel took pains to make clearthat it did not mean that Plaintiff was precluded fromlitigating whether the two positions were different enoughto support any discrimination claims she might assert incourt. (See, e.g., Impartial Panel’s Findings of Fact andRecommendation [Doc. # 64–36] at para. 29 (“Weexpress no view as to whether [the classroom teacher andcomputer teacher positions] are interchangeable understate anti-discrimination laws.”); para. 46 (“We expressno views as to whether state anti-discrimination lawsoperate as an external limit on [the authority of theSuperintendent to assign elementary teachers to thecomputer teacher assignment or vice versa]; para. 47(“We express no views as to whether the Connecticutanti-discrimination laws prohibit or otherwise affect thepractice of shifting a teacher returning from an unpaidleave of absence occasioned by a complication frompregnancy from technology teacher to classroomteacher.”); para. 143–44 (“While we have found that theassignment of classroom teacher and the assignment oftechnology teacher are considered interchangeable andcomparable by the Westport Schools and by the collectivebargaining agreement with the Westport EducationAssociations, we express no view as to the state lawclaims advanced by Ms. Wanamaker in this proceeding.We express no view as to whether the failure by theWestport administration to remove a teacher from theassignment of technology teacher and replace her withMs. Wanamaker violated state law.”(emphasis added).)

Similarly, the Panel’s determination that Plaintiff“abandoned” her position does not foreclose the litigationof any issues in this case. First, as a matter of labeling, thePanel’s conclusion that Plaintiff abandoned her positionwas not a finding of fact at all but a characterization ofPlaintiff’s behavior used by the Panel in its“Recommendation” that there was an adequate legalground to terminate her—specifically, “other due andsufficient cause”—under Conn. Gen.Stat. § 10–151(d)(6).(See id. at 17.)Second, the underlying finding offact—that Plaintiff “did not accept a position of classroomteacher on her return from unpaid leave, and did notreport for the classroom teacher assignment” for the2010–2011 school year, see id.—does not preclude


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Plaintiff from asserting that the refusal by the Defendantto reinstate her to the computer teaching position was anadverse employment action. I agree with Magistrate JudgeGarfinkel’s finding that there are disputed issues of facton the question whether the proposed transfer to theclassroom teaching position altered the terms andconditions of Plaintiff’s employment in a materiallynegative way. (See Doc. # 90 at 42.) If Plaintiff ultimatelyprevails on that issue, then her failure to accept whatamounted to a lesser position does not undermine herclaims.

*2 The remaining arguments raised in Defendant’sObjection are fully addressed by Magistrate JudgeGarfinkel’s Recommended Ruling, and I adopt the adoptthe reasoning therein in rejecting those arguments.

For the reasons set forth above and in Magistrate JudgeGarfinkel’s Recommended Ruling, I grant in part anddeny in part Defendant’s Motion for Summary Judgment.

IT IS SO ORDERED.

RECOMMENDED RULING ON DEFENDANT’SMOTION FOR SUMMARY JUDGMENT

WILLIAM I. GARFINKEL, United States MagistrateJudge.

Plaintiff, Sally J. Wanamaker, a former elementary schoolteacher with the Westport Board of Education (“BOE”),brought this suit against the BOE for alleged violations ofthe Family and Medical Leave Act, 29 U.S.C. § 2601 etseq. (“FMLA”), the Americans with Disabilities Act, 42U.S.C. § 12101 et seq. (“ADA”), and the Connecticut FairEmployment Practices Act, Conn. Gen.Stat. § 46a–60(a)etseq. (“CFEPA”). On September 25, 2012, the HonorableVanessa L. Bryant, District Judge, issued a detailed andwell-reasoned opinion on Defendant’s Motion to Dismiss,Wanamaker v. Westport Board of Education, 899F.Supp.2d 193 (D.Conn. Sept.25, 2012), granting it inpart and denying it in part. Following this decision,Plaintiff filed an Amended Complaint [Doc. # 41], whichis now the operative complaint. Pursuant to Rule 56,Fed.R.Civ.P., Defendant has moved for summaryjudgment [Doc. # 63] on all five counts of Plaintiff’sAmended Complaint on the ground that there is nogenuine issue of material fact and that it is entitled tojudgment as a matter of law. For the reasons set forthbelow, the Court recommends that Defendant’s motionshould be granted in part and denied in part.

Summary Judgment Standard

Rule 56(a) provides that “[t]he court shall grant summaryjudgment if the movant shows that there is no genuinedispute as to any material fact and the movant is entitledto judgment as a matter of law.”Rule 56(a), Fed.R.Civ.P.The burden is on the moving party to demonstrate theabsence of any material factual issue genuinely in dispute.Am. Int’l Group, Inc. v. London Am. Int’l Corp. Ltd., 664F.2d 348, 351 (2d Cir.1981). A fact is “material” if it“might affect the outcome of the suit under the governinglaw.”Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to amaterial fact is “genuine” if “the evidence is such that areasonable jury could return a verdict for the nonmovingparty.”Id.

*3 In making these determinations, the Court shouldreview all of the evidence in the record, drawing allreasonable inferences in favor of the non-moving party.Reeves v. Sanderson Plumbing Prods. ., Inc., 530 U.S.133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). TheCourt, however, may not make credibility determinationsor weigh the evidence, which are functions for the jury.Id. Rather, the role of the Court is to determine whetherthere are genuine issues of material fact for trial. Cioffi v.Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158,162 (2d Cir.), cert. denied,549 U.S. 953, 127 S.Ct. 382,166 L.Ed.2d 270 (2006).“Only when reasonable mindscould not differ as to the import of the evidence issummary judgment proper.”Bryant v. Maffucci, 923 F.2d979, 982 (2d Cir.), cert. denied,502 U.S. 849, 112 S.Ct.152, 116 L.Ed.2d 117 (1991). Stated differently, “if thereis any evidence in the record that could reasonablysupport a jury’s verdict for the non-moving party,”summary judgment must be denied. Marvel Characters,Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002).

Factual Background

Judge Bryant’s previous ruling on Defendant’s Motion toDismiss sets forth the factual background of this case indetail. Wanamaker, 899 F.Supp.2d at 196–99. Those factswere based upon the factual allegations of Plaintiff’scomplaint, which the Court properly accepted as true forthe purpose of determining whether they “plausibly[gave] rise to an entitlement to relief.”Id. at 199 (internalcitations and quotation marks omitted). For purposes of


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ruling on Defendant’s summary judgment motion,however, the Court must base its decision on the evidencein the record-not mere factual allegations. Thus, althoughlargely duplicative of the factual background set forth inJudge Bryant’s ruling, the Court includes herein a detaileddiscussion of the facts based upon the evidence presentedby the parties both in support of, and in opposition to,Defendant’s motion.

The facts as presented are undisputed unless otherwiseindicated.1

Plaintiff began her relationship with the Westport Boardof Education as an elementary school paraprofessional atKings Highway Elementary during the 1998–99 schoolterm, where she assisted three second grade teachers. Shethen did her student teaching at Green’s FarmsElementary School. In the fall of 1999, Plaintiff served asa substitute teacher and, in January 2000, she was hired asa substitute library media specialist at Green’s Farms(Pl.’s Ex. 31 at 111). For the 2000–01 school year,Plaintiff was hired on a full-time basis at Green’s Farms,with her time allocated as .6 FTE (full-time equivalent) tomath support, .2 FTE to gifted math, and .2 FTE as acomputer teacher. As an elementary school teacher, theterms and conditions of her employment were governedby a collective bargaining agreement (Def.’s Ex. A).

Plaintiff testified that, during the time she was a studentteacher in a regular classroom setting, she had “thisrevelation that this is just not for me” (Def.’s Ex. OO at109; Pl.’s Ex. 23 at 102). Thus, in 2001, she interviewedfor the computer teacher position at Green’s Farms(Def.’s Ex. OO at 124). For the 2001–02 school year,Plaintiff was assigned to the position of full-timecomputer teacher, and continued in that position until2009. In 2004, Plaintiff achieved tenure. In 2005, theBOE granted Plaintiff’s request to reduce her position to.8 FTE, so that she could take time off during the weekfor fertility treatments. A .2 FTE computer teachercovered for Plaintiff on Fridays when she was out (Def.’sEx. Z). From 2001 to 2009, Plaintiff was never rotated outof the computer lab position to a regular classroomteaching assignment (Pl.’s Ex. 31 at 125).

While Plaintiff was employed by the BOE, she wascertified in elementary education, kindergarten throughsixth grade (Def.’s Ex. C). No separate certification wasrequired to be a computer teacher. Classroom teachersand computer teachers receive the same salary andbenefits, and both are evaluated using the sameperformance indicators and using the same form, thePDEP form (Pl.’s Ex. 32 at 23–25).

*4 Plaintiff described her job as a computer teacher atGreen’s Farms as follows: The classroom teachers wouldbring their students for technology education to hercomputer laboratory, which contained approximately 25computer workstations that the students would use on arotating basis (Pl.’s Ex. 31 at 116–18, 123; Pl.’s Ex. 23 at127–38). Plaintiff developed her own unique lesson plansbased upon the Information and Technology LiteracyCurriculum that was implemented collaboratively by thecomputer teacher and the classroom teacher (Pl.’s Ex. 31at 117; Pl.’s Ex. 32 at 27–28). School BoardSuperintendent Elliott Landon further elaborated on thework of the computer teacher:

We assign ... whole classrooms to acomputer teacher on a scheduledbasis. Computer teacher worksvery, very closely with theclassroom teacher. They share thecurriculum. They share theactivities and the classroom teacherworks in the computer laboratorywith the computer teacher side byside. Additionally, the computerteacher, when not in the laboratory,also had unassigned time to workdirectly with classroom teachersand their students on regularclassroom curriculum throughoutthe year. Beyond that, the computerteacher meets with the grade-levelteams to have a full understandingof curriculum so there’s anintegration of function that takesplace ...

(Def.’s Ex. P P at 28; see also Pl.’s Ex. 32 at 28).

Plaintiff offered the following comparison of the positionsof classroom teacher and computer teacher: the computerteacher is responsible for one subject at six grade levels;the classroom teacher is responsible for six subjects at onegrade level. The computer teacher sees approximately 500children from 24 to 26 classes; the classroom teacher iswith the same 24 to 26 children everyday. The computerteacher stays in one classroom the entire day; theclassroom teacher moves all over the school with her oneclass of students, from the classroom to lunch, to recess,to every special program (Pl.’s Ex. 23 at 250–52).

During the 2008–09 school year, John Bayers becameprincipal of Green’s Farms. In 2008, Plaintiff notified himthat she was pregnant. On February 23, 2009, Plaintiffwas unexpectedly ordered to bed rest by her physician


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due to complications with her pregnancy. The followingday, Plaintiff emailed Superintendent Landon:

Hello Dr. Landon—

I would like to request Family Medical Leave. I amexpecting a baby (due April 24), however, wasunexpectedly ordered to bedrest beginning today.According to my doctor, it is possible I may return towork in one month if I haven’t had the baby yet (but itwill be developed enough that standing up and workingwon’t be a risk).

Thank you very much for your consideration!

Sally Wanamaker

*5 (Def.’s Ex. D). Landon responded that same day:

Best wishes to you and your family. Heed your doctor’sadvice. My daughter was ordered to bedrest, she actedaccordingly and gave birth to a wonderful little girl.

Elliott Landon.

(Def.’s Ex. E). Plaintiff’s requested leave was designatedas Family and Medical Leave Act (“FMLA”) leave as ofFebruary 23, 2009.

On April 30, 2009, Plaintiff gave birth to her daughter.Thereafter, Plaintiff developed transverse myelitis as aresult of a spinal injury that occurred during childbirth,which caused severe pain in her back, numbness in herfeet and hands, and interfered with her ability to stand andwalk for extended periods, as well as with her bowelfunctions (Pl.’s Ex. 23 at 13–14, 16–19; Pl.’s Ex. 27 at67–68, 70, 88). As a result of this condition, Plaintiff washospitalized five times over the next three months (Def.’sEx. Z). Additionally, her daughter was born with acongenital heart defect that would later require surgery(Pl.’s Ex. 23 at 159–60).

Plaintiff’s FMLA leave expired on May 22, 2009 (Pl.’sEx. 35). On May 17, 2009, Plaintiff notified PrincipalBayers that she had been hospitalized for “severe andunaccounted for pain and numbness for almost 2 weeks”(Def.’s Ex. G). Bayers responded, expressing his regrets,hoping that things worked out quickly, and inquiring if hecould update the staff on her situation (Def.’s Ex. H).Plaintiff was then given extended sick through June 22,2009. Her expected return date was August 27, 2009(Def.’s Ex. F). During her absence, her responsibilities asa computer teacher at Green’s Farms were filled bySherry Black, a long-term substitute teacher. Plaintiffworked closely with Black on lesson plans for theremainder of the school year (Def.’s Ex. Z).

On June 21, 2009, Plaintiff again informed Bayers byemail that she was again hospitalized for “continuedundiagnosed severe pain, and a bad reaction to a thoracicepidural they did the day after the staff picnic that wassupposed to help the pain,” and that she was “about 2months behind in life (paperwork, bill paying,etc.)”(Def.’s Ex. I).

According to Plaintiff, around mid- to late-July, she had aconversation with Marggaret Brienes in HumanResources about her options. Brienes informed Plaintiffthat if she stayed out on medical leave, as opposed tounpaid leave, her job would be held for her (Pl.’s Ex. Z).Based upon this advice, Plaintiff consulted with herneurologist, Dr. Peter J. McAllister, and requested that hewrite a note to Bayers letting him know that she might notbe able to return at the beginning of the school year (Id.).

On July 27, 2009, Plaintiff emailed Bayers, stating thatshe had been diagnosed with Transverse Myelitis and that“getting through the day [was] a challenge” (Def.’s Ex. J).

Around this time, Plaintiff and Bayers had a conversationabout whether Plaintiff would be returning and whetherBayers could retain Black for the beginning of the2009–10 school year (Pl.’s Ex. 23 at 169). On August 4,2009, Plaintiff faxed to Bayers a letter from herneurologist, Dr. McAllister, dated July 24, 2009 (Def.’sEx. K), in which he explained that Plaintiff had developedan inflammation of her spinal cord after delivery, whichhad led to “severe pain and marked disability.” Hereported that they were aggressively working her up andtreating her, but “she wanted [Bayers] to have a ‘headsup’ that, unless we turn the pain around ratherdramatically in the next six weeks, she may not be able towork or may be able to only work on a limited basis”(Pl.’s Ex. 7). At that point, Dr. McAllister was unwillingto opine how much additional leave Plaintiff wouldrequire at the beginning of the school year (see Def.’s Ex.L), but he later testified that, in his opinion, she did nothave the ability to work at all as of July 24, 2009 (Def.’sEx. QQ at 35).

*6 On August 6, 2009, Plaintiff emailed Bayers:

I faxed to you the note that Ireceived from my neurologistyesterday. I realize that it is vagueand doesn’t state exactly what timeoff I will need, so I called himyesterday and asked him if he couldwrite a letter that would be morespecific. He said that it is hard for


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him to predict how I will be in onemonth. I explained that you reallyneed something concrete in order toget staffing in order for thebeginning of the year. He asked meto call him in one week, we wouldassess how things are going, andlikely he would write a note for a60 day sick leave followed by areassessment in the office. I askedif he could write that note now, andhe said he was more comfortablewaiting a week to see how I wasdoing.

(Def.’s Ex. L). Bayers responded on August 10, 2009,asking her to call him when she had a chance “to discuss[her] situation” (Def.’s Ex. M).

During the summer, staffing decisions for Green’s Farmswere being made, and it was projected that one teacherwould have to be displaced from Green’s Farms for2009–10 due to budget constraints and decreased studentenrollment. According to Landon, staffing decisions weremade by Bayers, who presented them to Landon, althoughthey did not require his approval (Pl.’s Ex. 22 at 28).Landon testified that, given the indefiniteness ofPlaintiff’s leave of absence, Bayers wanted to reassignsomeone to the computer teacher position. Given thenumber of vacancies due to planned absences (maternityleaves) throughout the school year, Bayers anticipatedbeing able to assign Plaintiff to a classroom when shereturned (Def.’s Ex. LL, Landon Aff. ¶ 20). Thisassignment would be as a building substitute, filling in forclassroom teachers who were taking maternity leave.Bayers explained that, when a teacher is hired by theBOE, he or she does not have any continuing right toremain in a particular assignment. Every year, he makesstaffing decisions in consultation with the central office,based upon staffing needs and the needs of the students(Def.’s Ex. MM, Bayers Aff. ¶ 10).

While there is some discrepancy in the record as toexactly when a decision regarding Plaintiff’s employmentwas made, according to Landon and Bayers, once theylearned that Plaintiff would be out for at least 60 days atthe start of the school year, they finalized what they hadpreviously discussed, which involved assigning aclassroom teacher to the computer teacher position andgiving Plaintiff a classroom assignment when shereturned to fill in for anticipated absences (Def.’s Ex. LL,Landon Aff. ¶ 22; Def.’s Ex. MM, Bayers’ Aff. ¶ 28).Landon testified that, with this arrangement, Plaintiffwould not suffer a loss of salary or benefits and would

have a regular teaching position, covering for teachers onleave (Def.’s Ex. LL, Landon Aff. ¶ 22). This would alsoensure consistency throughout the school year for thecomputer teacher assignment, and also avoided the needto possibly displace another classroom teacher fromGreen’s Farms at the beginning of the school year (Def.’sEx. LL, Landon Aff. ¶ 23; Def.’s Ex. MM, Bayers Aff. ¶29).

At some point, during the week of August 10, 2009,Bayers spoke by telephone with Plaintiff and informedher of the likelihood that she would be reassigned to theclassroom upon her return (Def.’s Ex. MM, Bayers’ Aff.¶¶ 24–25). According to Plaintiff, Bayers told her that hehad already offered the computer teaching job to Black,who had accepted (Pl.’s Ex. 23 at 186), although, as itlater turned out, Black was not given this position.Plaintiff was upset with this news and related to Bayersthat she was contacting the Union (Def.’s Ex. MM,Bayers’ Aff. ¶ 25).

Despite the fact that Plaintiff would have retained hersalary and benefits, Plaintiff regarded the position ofbuilding substitute as a demotion. She testified that everyday she could have a different classroom assignment;there would be no predictability; there would be “a tonmore physical activity than in the computer position. Aton more stress. A huge learning curve” (Pl.’s Ex. 23 at189). On days in which there were no openings for asubstitute teacher, the building substitute would be in theoffice doing filing, cleaning out the refrigerator in thestaff room. “It would have been extremely humiliating togo back into that role” (Pl.’s Ex. 23 at 190).

Plaintiff also did not want a classroom teacher position atthat time because of the differences in the two jobs. Thefirst year of teaching was always very stressful anddifficult. Plaintiff felt that she had enough stress in herlife and did not want to endanger her own health. She alsodid not feel that it would be fair to the students (Pl.’s Ex.23 at 198).

According to Bayers, Plaintiff did not indicate that shewould be able to return at the beginning of the school yearnor did she request any accommodation that would allowher to return (Def.’s Ex. MM, Bayers’ Aff. ¶ 26).Plaintiff, on the other hand, testified that she told Bayerthat if her employment was indeed at stake, she wouldreturn to her position as the computer teacher by thebeginning of the school year and, at most, would need abrief medical leave or some reasonable accommodationsuch as teaching from a chair instead of standing (Pl.’sEx. 27 at 119–20; Pl.’s Ex. 23 at 177–78).


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*7 On August 12, 2009, Dr. McAllister hand-wrote a notestating that “due to her neurological illness,” Plaintiffwould not be able to work for a period of at least 60 daysfrom the start of the school year” (Def.’s Ex. N).

On August 13, 2009, after receiving a message fromBayers, Plaintiff emailed him that she was headed to Mt.Sinai Hospital for an appointment with an MS specialist,who treated Transverse Myelitis.

On August 13, 2009, Plaintiff emailed John Horrigan, theUnion Treasurer, stating that she had been informed nolater than August 10, 2009, that Bayers had beenreviewing her situation with Superintendent Landon andthey had decided “for the consistency of the computerprogram at Green’s Farms, and because they [were]concerned about [her], they [were] going to put someonein the computer job [for 2009–10] ... and when [she cameback she could] spend the year covering the manymaternity leaves” (Pl.’s Ex. 8).

Horrigan contacted Edward Huydic, the Union President,advising him that Plaintiff was upset about the proposedjob placement. Huydic then spoke with Landon, whoconfirmed that the position being offered to Plaintiff wasa “building substitute” position (Def.’s Ex. P P at 15).Landon made clear that they had no issue with Plaintiff’sjob performance (Pl.’s Ex. 31 at 15–16). Huydicdescribed this decision as “somewhat out of the ordinary”but not improper, under the terms of the Union contract,as this position was within Plaintiff’s certification (Def.’sEx. P P at 17, 47). Huydic informed Plaintiff that he didnot think the Union could successfully manipulate thesituation so that she would be placed in the computerteaching position (Pl.’s Ex. 31 at 48). And, in fact, theUnion never filed a grievance on Plaintiff’s behalf.

Huydic testified that, during his conversation withLandon, Landon inquired about Plaintiff’s health and thehealth of the baby (Pl.’s Ex. 31 at 21–22).

On August 17, 2009, an email from Bayers to Landon andMarge Cion, the Director of Human Resources for theBOE, announced that, due to a drop in kindergartennumbers, Sarah Stefans, a kindergarten teacher, wouldmove to Grade 2, that Nicole Fieschel would move fromGrand 2 to Computer, and that Plaintiff would be on leavefor at least the first two months of school. He stated, “Wewill determine her position upon her possible return”(Def.’s Ex. O). Fieschel was non-tenured at the time andis not disabled. Bayers testified that, at the time he madethe decision to move Fieschel to the computer teachingposition (with the approval of Landon), he did not haveany criticism of Plaintiff’s performance (Pl.’s Ex. 21 at

31).

On September 4, 2009, Cion wrote Plaintiff confirmingthat, because she had sufficient accrued sick time, therewould be no interruption in her pay or medical benefitsduring this 60–day medical leave of absence, whichwould expire on October 26, 2009. She asked Plaintiff toprovide Human Resources with a note from her doctorbefore returning to work, which should state when shewas able to return to work and if there would be anyrestrictions on her duties (Def.’s Ex. P).

On October 20, 2009, PA Karen Brown with AssociatedNeurologists faxed a note to Cion stating that Plaintiffwas unable to return to work due to her medical conditionthrough December 21, 2009 (Def.’s Ex. Q). On November3, 2009, she sent a second fax stating that Plaintiff couldnot return to work until December 31, 2009 (Def.’s Ex.R).

On December 9, 2009, Plaintiff emailed Cion that shewould let her know what her doctor said about returningto work on January 1 st (Def.’s Ex. U). She further statedthat, as she was weaning off morphine, which she hadbeen on for seven months, her symptoms were rushingback, but she really wanted and needed to be off ofnarcotics (Def.’s Ex. U). In response, Cion reminded herthat, as a tenured teacher, she could apply for unpaidleave, which was up to Landon to approve (Def.’s Ex. U).

*8 Dr. McAllister followed up with a hand-written note toCion dated December 17, 2009, stating that “[d]ue to herongoing neurological condition, Mrs. Wanamaker needsto remain out of work, full restriction, for a period of 90days, at which time she’ll be reevaluated” (Def.’s Ex.T)(underlining in original). The BOE approved each ofPlaintiff’s requests for extended leave.

On December 28, 2009, Plaintiff and Cion had anexchange of emails regarding Plaintiff’s flexible spendingaccount if she were to take unpaid leave. Plaintiff thankedCion for the information and related that the “tricky part”was that she did not know if she was going to be onunpaid leave or released to return to work. She indicatedthat she would not be seeing Dr. McAllister until Marchbut that she planned to return to see the neurologist atYale before then, as her symptoms did not appear to bechanging and her feet were still numb. She noted that Dr.McAllister told her that time was what she needed, but,she remarked, “time won’t pay for my health insurance,”so she planned to get a second opinion. She concludedthat “[e]ither way I am sure I will be using the FlexSpending Acct in some form as Lucy [her baby] has herfollow up for her heart condition, I have my medical


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condition and Chris [her huband] has Lupus, allconditions that incur medical expenses. I will be back intouch after reviewing with my husband” (Def.’s Ex. V).

On March 2, 2010, Plaintiff faxed a note from Dr.McAllister to Cion stating that Plaintiff was“neurologically cleared to return to work one day perweek in April (beginning April 6th), then two days aweek in May and June, non consecutive” (Def.’s Ex. W).In response, on March 5, 2010, Landon emailed Plaintiff:

1. Based upon the clearance given by your doctor, it isour determination that you are unable at this time tofully perform the essential job functions of a teacher.

2. We do not have any “one day” teaching assignments.3. At such time as you are able to return to our employas a full time teacher, we will re-assess ourdetermination that you are unable to fully perform theessential functions of a teacher.

Given your desire to return to work on aone-day-a-week basis, we are willing to employ you asa per diem teacher until you are able to fully performthe essential job functions of a teacher.

(Def.’s Ex. X). According to Landon, a per diem teacherwould receive 1/180th of his or her annual salary for eachday worked, not the $90 per day paid to regular substituteteachers (Def.’s Ex. LL, Landon Aff. ¶ 27).2 Plaintiff,however, testified that this was never communicated toher. She had informed Landon that she was not going towork for $90 per day, and he never corrected herassumption that this would be her salary (Pl.’s Ex. 23 at222).

As of March 17, 2010, Plaintiff had exhausted all of theaccrued paid time-off and the remainder of her leave wasunpaid (Def.’s Ex. NN, Cion Aff. ¶ 18).

*9 Having received no response from Plaintiff to hisMarch 5th letter, on April 14, 2010, Landon wrotePlaintiff,

As of this date, you have not responded to my offer toaccept a per diem teaching assignment, nor have youadvised of your intention to return to our employ.

It is now evident that you have no intention to return towork in the Westport Public Schools and to perform theessential job functions of a teacher. As such, I aminforming you by way of this communication that youwill need to tender your resignation from our employ.Failure to do so will result in my initiating terminationproceedings to end your employment with the Westport

Public Schools.

(Def.’s Ex. Y). Landon copied Thomas Mooney, theBOE’s attorney, on this letter. Plaintiff testified that, aftershe saw this, she decided she needed to retain an attorneyas well (Pl.’s Ex. 23 at 224–25).

On April 26, 2010, at Cion’s suggestion that there mustshave been a misunderstanding, Plaintiff responded toLandon with a six-page, single-spaced letter, in which sheoutlined the background of her employment, her requestsfor leave, etc., and concluded:

The only conclusion that I can come to is that I amsomehow being retaliated against because I need totake time off for my illness and am now perceived asneeding time off in the future due to my medicalcondition and that of my infant daughter.

Since you have not permitted me to return to myposition as Computer Teacher (or to the position ofSubstitute Teacher with my daily payrate as JohnBayers offered me back in August), the responsibilitiesof which I am fully capable of performing with minoraccommodations, I would like to request an unpaidleave for the remainder of the year. I would also like tobe reinstated to the job of Computer Teacher at GreensFarms School next year.

(Def.’s Ex. Z).

Landon granted her request for an unpaid leave ofabsence through the end of the school year. Noting thatthe next school year would be most difficult due todeclining enrollment and the return of many of thetenured elementary school teachers, he agreed to holdopen a regular elementary classroom teaching position inone of five elementary schools and asked that she notifyhim no later than June 11, 2010, whether she would bereturning (Def.’s Ex. AA; Def. Ex. PP, Landon Testimony23). Through her attorney, Plaintiff responded on May 27,2010, that she was willing to return to her originalposition as a Technology Teacher at Green’s Farms “or anequivalent position, as equivalent position is definedunder state law and regulations, as of August 2009.”Theletter concluded, “[i]f we do not receive a response byJune 15, 2010, we will assume that the District has nointerest in an equitable resolution of this matter” (Def.’sEx. BB).

On July 29, 2010, Plaintiff’s counsel sent a second letter,this time to the BOE’s attorney, Mooney, advising himthat Plaintiff had been medically cleared to return to heroriginal “Technology Teacher position or to an equivalentposition” (Def.’s Ex. CC). Plaintiff’s counsel reiterated


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his position that a regular classroom teaching job was notan “equivalent position” to the Technology Teacher jobPlaintiff previously held (Def.’s Ex. CC). To his letterwas appended a letter from Dr. McAllister dated July 1,2010, stating that Plaintiff “continues to recover from herinflammatory myelitis. She is currently able to resume heroccupation as Technology Teacher which, by nature, haslimited physical requirements, but I do not feel she shouldendanger her recovery with a new, unfamiliar physicallyand emotionally stressful, physically active position of afull time classroom teacher” (Def.’s Ex. CC). Dr.McAllister testified that he had no personal knowledge ofthe essential functions of these jobs. His understandingwas based on information provided to him by Plaintiff(Def.’s Ex. QQ, McAllister Dep. 14).

*10 On August 16, 2010, Landon wrote Plaintiff that, onbehalf of the BOE, he was accepting her resignation ofemployment (Def.’s Ex. DD).

After Plaintiff advised Landon that she had not resignedher employment, he wrote her on August 18, 2010, that“[w]ithout prejudice to my position that your refusal ofthe assignment offered you was in fact a resignation ofyour employment, pleased be advised that the terminationof your contract of employment as a teacher in theWestport Public Schools is under consideration” (Def.’sEx. EE). He advised her of her rights to a statement ofreasons and to request a hearing. He concluded, “[a]llfurther proceedings will be conducted in accordance withConn. Gen.Stat. Section 10–151” (Def.’s Ex. EE).

In response, Plaintiff requested a statement of the reasonswith specifics as to times, locations, witnesses, andrelated documentation (Def.’s Ex. FF).

On September 2, 2010, Landon responded that the reasonsfor considering termination of her employment were:insubordination against the reasonable rules of the BOE;disability as shown by competent medical evidence; andother due and sufficient cause (Def.’s Ex. GG). Landontook the position that “there is no material differencebetween the classroom teaching position I offered you lastMay and last July and the one specific position you aredemanding” (Def.’s Ex. GG).

Thereafter, Plaintiff’s counsel requested a hearing beforea tripartite panel, pursuant to the Employment of TeachersStatute, Conn. Gen.Stat. § 10–151a (Def.’s Ex. HH). Afive-day hearing (“the § 10–151 hearing”) was then heldbefore a panel consisting of Peter Adomeit, Esq., Chair,Joseph Garrison, Esq., appointed by Plaintiff, and JohnRomanow, Esq., appointed by the BOE. On April 14,2011, the panel issued its Findings of Fact and

Recommendation to the BOE that Plaintiff’s failure toreport or perform her assignment as a classroom teacherfor the 2010–11 school year constituted abandonment andprovided “other due and sufficient cause” under Conn.Gen.Stat. § 10–151(d)(6) for her termination (Def.’s Ex.JJ). The recommendation of the panel was accepted andadopted by the BOE on April 27, 2011 (Def.’s Ex. KK).

Horrigan, who was one of three presidents of theTeachers’ Union as of the summer of 2010, testified that,in his opinion and based upon his experience in theWestport school system since 1989, Landon couldreassign teachers so long as they held the propercertification for the new position (Pl.’s Ex. 18 at 21, 30).It was also his observation that, after a teacher took amedical leave of absence, when she returned, she returnedto the job she had left, not a different job (Pl.’s Ex. 18 at37, 75). However, that was not necessarily true if theteacher took unpaid leave (Pl.’s Ex. 18 at 37, 39, 75). Hetestified further that, if a teacher was going to beterminated, the Union would get involved to work withLandon on an exit strategy that would not involve atermination (Pl.’s Ex. 18 at 25). He could only recall afew tenured teachers who had been terminated (Pl.’s Ex.18 at 26). He further explained that, if a teacher wereoffered a different assignment and she declined to take it,in his opinion, the BOE would need to institute atermination hearing (Pl.’s Ex. 18 at 77).

*11 As for the BOE’s decision to give Plaintiff’scomputer teaching job to another person, Horrigan did notthink the decision was reasonable or fair (Pl.’s Ex. 18 at28). In fact, he described it as a “shocking situation” (Pl.’sEx. 18 at 57–58). Plaintiff had been out on leave, and shehad exercised due diligence in helping the substituteduring her absence (Pl.’s Ex. 18 at 28). Horrigan alsoquestioned the BOE’s and Landon’s failure to advise theUnion that Plaintiff, who was a Union member, was goingto be terminated. He would have expected the Union tohave been kept in the loop when a termination wasinvolved (Pl.’s Ex. 18 at 54–56). He noted that it wasPlaintiff, not the BOE, who contacted the Union (Pl.’s Ex.18 at 77). He also stated, that based on his experience, adecision by the BOE to move a teacher to a differentteaching assignment would generally not be made at theend of the summer, but rather earlier in the year so thatthe teacher would have time to plan for the upcomingschool year (Pl.’s Ex. 18 at 94). Likewise, DiannDrenosky, another of the three Union presidents, testifiedthat she was surprised that Landon had not talked to theUnion before terminating Plaintiff (Pl.’s Ex. 19 at 43).

Plaintiff testified that she believed she could haveperformed her computer teacher job at the beginning of


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the 2009–10 school year, because the physicalrequirements of that job are significantly different than fora building substitute (Def.’s Ex. P P at 124). She furthertestified that she never requested an accommodation forthe building substitute teacher position because she didnot believe that there were any accommodations thatcould be made when every day was something different.“It would have been like hiring a full-timeparaprofessional to follow [her] around” (Def.’s Ex. P Pat 124; Pl.’s Ex. 23 at 209–10). As of the fall of 2010, shewould have been able to perform the job of classroomteacher, but that she did not accept the offer of thatposition because she believed her rights had been violated(Def.’s Ex. OO, Pl .’s Dep. 232).

Huydic, Horrigan, and Drenosky testified that teacherabsences had been a big issue to Landon (Pl.’s Ex. 31 at24, Pl.’s Ex. 18 at 40, 59; Pl.’s Ex. 19 at 27). In fact in2008, Landon had sent out letters to teachers withexcessive absences. A number of the teachers found theletter to be unfair, intimidating, and unreasonable (Pl.’sEx. 18 at 43–44). Huydic met with Landon on severaloccasions about these letters and, ultimately, it wasdetermined that the letters would be sent from HumanResources (Pl.’s Ex. 31 at 26, 27, 39, 30).

Discussion

I. Collateral EstoppelInitially, Defendant asserts that collateral estoppel, orissue preclusion, prevents Plaintiff from relitigating thoseissues previously litigated in the § 10–151 hearing.Defendant maintains that Plaintiff had the opportunity tofully and fairly litigate her case, and that the ImpartialPanel determined that Plaintiff had engaged in jobabandonment, which constituted “other due and sufficientcause” to terminate her employment under Conn.Gen.Stat. § 10–151(d)(6).

*12 [2] [3] Because the decision of the Impartial Panel wasrendered in Connecticut, this Court must look to the lawof Connecticut to determine the preclusive effect of thatproceeding. Migra v. Warren City Sch. Dist. Bd. of Educ.,465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984);LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir.2002). InConnecticut, to be subject to collateral estoppel, an issuemust have been (1) fully and fairly litigated, (2) actuallydecided, (3) necessary to the judgment in the first action,and (4) identical to the issue to be decided in the secondaction. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d1243 (1988); Crochiere v. Bd. of Educ. of Town of

Enfield, 227 Conn. 333, 343, 630 A.2d 1027 (1993); Statev. Joyner, 255 Conn. 477, 490, 774 A.2d 927 (2001);Faraday v. Blanchette, 596 F.Supp.2d 508, 515(D.Conn.2009). Issue preclusion expresses “no more thanthe fundamental principle that once a matter has beenfully and fairly litigated, and finally decided, it comes torest.”State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974(1985).

It is well-settled that a valid and final administrativeadjudication may give rise to collateral estoppel. NewEngland Rehab. Hosp. of Hartford, Inc. v. Comm’n onHosps. & Health Care, 226 Conn. 105, 129, 627 A.2d1257 (Conn.1993); Genovese v. Gallo Wine Merchs., Inc.,226 Conn. 475, 483–84, 628 A.2d 946 (1993). The burdenis on Defendant, as the party asserting collateral estoppel,to prove these requirements. Kulak v. City of New York,88 F.3d 63, 72 (2d Cir .1996); Havoco of Am. Ltd. v.Freeman, Atkins & Coleman, Ltd., 58 F.3d 303, 308 (7thCir.1995).

Initially, to invoke collateral estoppel, Defendant mustdemonstrate an identity of issues between those litigatedin the prior proceeding and those sought to be litigated inthis case. See Crochiere, 227 Conn. at 345, 630 A.2d1027. At the § 10–151 hearing, while Plaintiff may havehad a full and fair opportunity to litigate the issue ofwhether she engaged in “job abandonment,” Plaintiff didnot litigate, nor did the Panel consider or determinePlaintiff’s federal and state discrimination claims. Indeed,the Panel went to great lengths to make clear the issuesthat it was not deciding.

We make no finding as to whether Ms. Wanamakerwas constructively discharged. We have no jurisdictionto do so. Under the decisions of the ConnecticutSupreme Court, a teacher facing termination cannotunder a Section 10–151 hearing assert claims arisingunder other laws....

Thus, the claim that the administration did not offerMs. Wanamaker a “comparable” position within themeaning of the Connecticut anti-discrimination laws; orwhether the only comparable position was that of acomputer teacher; or whether the administration had alegal duty to remove someone from that assignmentand give it to Ms. Wanamaker are all issues which canonly be addressed by the agencies assigned thatjurisdiction under Connecticut law. We have nojurisdiction to decide them. To try them under a Section10–151 hearing would trespass on the procedures andjurisdiction of the state courts and the ConnecticutCommission on Human Rights and Opportunities. Thepanel has decided that under the law as stated by theConnecticut Supreme Court, the panel has no


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jurisdiction to make findings as to whether theAdministration did or did not comply with these laws.

*13 (Def.’s Ex. JJ at 19–20). Clearly, Plaintiff did nothave a full and fair opportunity to litigate her FMLA,CFEPA, and ADA claims in this earlier proceeding, and,thus, collateral estoppel does not bar the litigation of thoseclaims in this case. See Faraday, 596 F.Supp.2d at 515;Marvel Characters, 310 F.3d at 288; Prestopnik v.Whelan, 249 F. App’x 210, 212 (2d Cir.2007) (holdingthat collateral estoppel did not bar plaintiff from litigatingher equal protection claims in federal court where thestate court explicitly noted that it made no findings as tothe constitutionality of the school district’s tenuredecision).

Additionally, Connecticut would not give preclusiveeffect to the findings of the Panel because Conn. Gen.Stat.§ 31–51bb explicitly provides that a statutory claimcannot be lost just because an employee is covered by acollective bargaining agreement. Section 31–51bbprovides:

No employee shall be denied theright to pursue, in a court ofcompetent jurisdiction, a cause ofaction arising under the state orfederal Constitution or under a statestatute solely because the employeeis covered by a collectivebargaining agreement.

This statute was enacted to ensure that employees coveredby a collective bargaining agreement retained the right topursue a statutory cause of action despite an adversedetermination in a grievance or arbitrationproceeding.Genovese, 226 Conn. at 484–86, 628 A.2d946 (citing McDonald v. West Branch, 466 U.S. 284, 104S.Ct. 1799, 80 L.Ed.2d 302 (1984); Barrentine v.Arkansas–Best Freight Sys., 450 U.S. 728, 101 S.Ct.1437, 67 L.Ed.2d 641 (1981); Alexander v.Gardner–Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39L.Ed.2d 147 (1974), in which the U.S. Supreme Courtrefused to give preclusive effect to a prior arbitraldecision in a subsequent court action brought to vindicatean employee’s statutory rights). Thus, the issues presentedin this case are not subject to attack based upon thedoctrine of collateral estoppel. See Nichols v. City ofBridgeport, No. CV020394052, 2008 WL 2895901, at *6(Conn.Super.Ct. July 7, 2008).

II. Plaintiff’s FMLA ClaimsDefendant raises three grounds for granting summary

judgment as to Plaintiff’s FMLA interference andretaliation claims asserted in Counts I and II of herAmended Complaint: (1) her FMLA interference claimfails as a matter of law because she was granted twelveweeks of FMLA leave and she was still unable to returnto work at the end of this period; (2) her FMLA retaliationclaim fails as a matter of law because Plaintiff cannotdemonstrate that she was terminated or constructivelydischarged; and (3) her FMLA claims are barred in partby the applicable two-year statute of limitations, 29U.S.C. § 2617(c)(1).

The FMLA creates a series of substantive rights orentitlements for eligible employees. It grants to eligibleemployees the right to “a total of 12 workweeks of leaveduring any 12–month period”...“[b]ecause of the birth of ason or daughter of the employee and in order to care forsuch son or daughter,”“[i]n order to care for the ... son[or] daughter ... if such ... son [or] daughter has a serioushealth condition,” or “[b]ecause a serious health conditionthat makes the employee unable to perform the functionsof the position of such employee.”29 U.S.C. § 2612(a)(1).The FMLA further grants to the employee the right to bereinstated to his or her former position or an equivalentposition with equivalent employment benefits, pay, andother terms and conditions of employment, upon returnfrom such leave. 29 U.S.C. § 2614(a)(1). The right toreinstatement, however, is not absolute. “If the employeeis unable to perform an essential function of the positionbecause of a physical or mental condition, including thecontinuation of a serious health condition, ... theemployee has no right to restoration to another positionunder the FMLA.”29 C.F.R. § 825.216(c); see Sarno v.Douglas Elliman–Gibbons & Ives, Inc., 183 F.3d 155,161–62 (2d Cir.1999). To ensure the availability of theserights, the FMLA makes it unlawful for an employer “tointerfere with, restrain, or deny the exercise of or theattempt to exercise, any right provided under thissubchapter,”29 U.S.C. § 2615(a)(1) or “to discharge or inany other manner discriminate against any individual foropposing any practice made unlawful by thissubchapter.”29 U.S.C. § 2615(a)(2); see also29 U.S.C. §2615(b) (making it unlawful for an employer to dischargeor in any other manner discriminate against any individualbecause such individual has filed a charge or institutedproceedings under this subchapter, has given or is aboutto give information in connection with any inquiry orproceeding relating to any right provided under thissubchapter, or has testified or is about to testify in anyinquiry or proceeding relating to any right provided underthis subchapter).

*14 The Second Circuit has recognized two distinctFMLA causes of action-interference claims based upon §


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2615(a)(1), and retaliation claims based upon §2615(a)(2) and § 2615(b).Potenza v. City of New York,365 F.3d 165, 167–68 (2d Cir.2004); Wanamaker, 899F.Supp.2d at 204. With interference claims, the issue issimply whether the employer provided the employee withthe entitlements set forth in the FMLA-for example, atwelve-week period of leave or reinstatement following amedical leave. The employer’s subjective intent is not anissue. Reid–Falcone v. Luzerne Cnty. Cmty. Coll., No.3:CV–02–1818, 2005 WL 1527792, at *4 (M.D.Pa. June28, 2005). With retaliation claims, however, retaliatory ordiscriminatory intent is an issue.Id. at *9.

In this case, Plaintiff alleges both. In Count I of herAmended Complaint, she claims that Defendant interferedwith the exercise of her rights under the FMLA byterminating her employment and refusing to restore her toher position or an equivalent position (Pl.’s Am. Comp. ¶44) and by terminating her because it anticipated that shewould need to take FMLA leave in the future (Pl.’s Am.Comp. ¶ 45). Plaintiff further alleges in Count II thatDefendant retaliated against her by terminating her for heruse of FMLA leave and her anticipated future use ofprotected FMLA leave, as well as her complaints aboutDefendant’s conduct that violated her rights under theFMLA (Pl.’s Am. Comp. ¶ 48).

A. Plaintiff’s FMLA Interference Claim[4] [5] To establish a prima facie case of interference withFMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiffmust establish five elements: (1) that she is an eligibleemployee under the FMLA; (2) that the defendant is anemployer as defined by the FMLA; (3) that she wasentitled to leave under the FMLA; (4) that she gave noticeto the defendant of her intention to take leave; and (5) thatshe was denied benefits to which she was entitled underthe FMLA.Basso v. Potter, 596 F.Supp.2d 324, 337(D.Conn.2009); Ridgeway v. Royal Bank of ScotlandGrp., No. 3:11cv976, 2012 WL 1033532, at *6 (D.Conn.Mar.27, 2012). There can be no dispute that Plaintiff hasmet the first four elements. There also is no dispute thatPlaintiff received her twelve weeks of FMLA leave. Herleave commenced on February 23, 2009, when she wasordered to bedrest for unexpected complications with herpregnancy (Def.’s Ex. F; Pl.’s Resp. to Def.’s St. ¶ 21).Her daughter was born on April 30, 2009 (Pl.’s Resp. toDef.’s St. ¶ 22). Plaintiff’s FMLA leave expired on May22, 2009, after which she was given extended leave to theend of the school year (Pl.’s Resp. to Def.’s St. ¶ 24).Thus, Plaintiff cannot base her FMLA interference claimon a denial of leave. See Singh v. New York State Dept. ofTaxation and Fin., 911 F.Supp.2d 223, 240(W.D.N.Y.2012) (holding that the plaintiff could not

establish an FMLA interference claim where she wasgranted the requested 12 weeks of FMLA leave and thentook an extended leave of absence).

*15 [6] The only other benefit that Plaintiff was allegedlydenied was reinstatement to her former computer teachingposition or an equivalent position. See Geromanos v.Columbia Univ., 322 F.Supp.2d 420, 428 (S.D.N.Y.2004)(“Because plaintiff received the full twelve weeks ofleave as allowed by the act, the only other right withwhich Columbia could be found to have interfered is theright to reinstatement at the end of her leave.”).“Failure toreinstate an employee to a prior position or its equivalentfollowing FMLA leave is a properly pled FMLAinterference claim.”Gauthier v. Yardney TechnicalProds., Inc., No. 3:05cv1362, 2007 WL 2688854, at *7(D.Conn. Sept.13, 2007).“An equivalent position is onethat is ‘virtually identical’ to the employee’s formerposition ‘in terms of pay, benefits, and workingconditions,’ and it ‘must involve the same or substantiallysimilar duties and responsibilities, which must entailsubstantially equivalent skill, effort, responsibility, andauthority.’ “ Wanamaker, 899 F.Supp.2d at 206 (quotingPizzo v. HSBC USA, Inc., No. 04–CV–114A, 2007 WL2245903, at *5 (W.D.N.Y. Aug.1, 2007) (quoting 29C.F.R. § 825.215(a))). While the parties spendconsiderable time arguing about whether Plaintiff wasoffered a position that was “equivalent” for purposes ofthe FMLA to her former computer teaching position, theCourt does not need to reach that issue.

[7] Rather, as Defendant contends, the Court finds thatPlaintiff has no viable FMLA interference claim becauseat the expiration of her twelve weeks of FMLA leave, shewas not medically able to return to work and, therefore,she was not entitled to reinstatement to the same orequivalent position. The regulations provide that, if theemployee is unable to perform “an essential function ofthe position because of a physical or mental condition,including the continuation of a serious health condition ...the employee has no right to restoration to anotherposition under the FMLA.”29 C.F .R. § 825.216(c).

Plaintiff, however, argues that Defendant voluntarilyextended her leave until the beginning of the next schoolyear and is now equitably estopped from using thisextension of leave against Plaintiff.

In Kosakow v. New Rochelle Radiology Associates, P.C.,274 F.3d 706, 725 (2d Cir.2001), the Second Circuit heldthat the “doctrine of equitable estoppel is properlyinvoked where the enforcement of the rights of one partywould work an injustice upon the other party due to thelatter’s justifiable reliance upon the former’s words or


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conduct.”Under federal law, which applies when a claimof equitable estoppel is made under a federal statute, “aparty may be estopped from pursuing a claim or defensewhere: (1) the party to be estopped makes amisrepresentation of fact to the other party with reason tobelieve that the other party will rely upon it; (2) and theother party reasonably relies upon it; (3) to herdetriment.”Id. (citing Heckler v. Cmty. Health Servs. ofCrawford Cnty., Inc., 467 U.S. 51, 59, 104 S.Ct. 2218, 81L.Ed.2d 42 (1984)).“Whether equitable estoppel appliesin a given case is ultimately a question of fact.”Id.

*16 In Murphy v. FedEx National LTL, Inc., 618 F.3d893, 899–900 (8th Cir.2010), the Eighth Circuit held that“an employer who makes an affirmative representationthat an employee reasonably and detrimentally believedwas a grant of FMLA leave can be estopped from laterarguing that the employee was not in fact entitled to thatleave because she did not suffer a serious healthcondition.”Reversing a judgment in favor of the plaintiff,the court held that, on remand, the district court “mustinstruct the jury that, in order to return a verdict for [theplaintiff], it is required to find that [the plaintiff]reasonably believed that [the employer] represented that itgranted her FMLA leave, rather than some other kind ofleave.”Id. at 900;see also Woodford v. Cmty. Action ofGreene Cty., Inc., 268 F.3d 51, 57 (2d Cir.2001) (holdingthat the doctrine of equitable estoppel may apply in thecontext of a FMLA interference claim).

In this case, there are at least two obstacles to Plaintiff’sinvocation of collateral estoppel to preserve her FMLAinterference claim. First, Plaintiff is seeking to usecollateral estoppel against a governmental defendant. “[I]tis well-settled that the Government may not be estoppedon the same terms as any other litigant.”Heckler, 467 U.S.at 60;see Office of Pers. Mgmt. v. Richmond, 496 U.S.414, 421, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990)(suggesting that some type of “affirmative misconduct”on the part of the Government is required to give rise toestoppel); see also Nagle v. ActonBoxborough Reg’l Sch.Dist., 576 F.3d 1, 4 (1st Cir.2009) (discussing therationale for this distinction).

The second and more significant reason is that Plaintiffdoes not contend, nor does the evidence support a finding,that Defendant told her it was extending her FMLA leave.Instead, Plaintiff has admitted that, when her FMLA leaveexpired on May 22, 2009, she was given “extendedleave.” (Def.’s St. ¶ 24, admitted by Pl.). There is noevidence that Defendant affirmatively represented to herthat this extended leave was FMLA leave. See Sjoblom v.Jersey Shore Med. Ctr., No. 05–1042, 2006 WL 1228709,at *4 (D.N.J. May 5, 2006) (dismissing the FMLA claims

where the employer provided actual notice as to when theFMLA leave expired); cf. Spagnoli v. Brown & BrownMetro, Inc., No. 06–414, 2007 WL 2362602, at *14(D.N.J. Aug.15, 2007) (finding issues of material fact asto whether the employer advised the plaintiff as to whenher FMLA leave would expire). Here, Plaintiff’s right toreinstatement under the FMLA expired when her FMLAleave expired. See Ridgeway, 2012 WL 1033532, at *10.

[8] As the Court held in Ridgeway, a claim for interferenceon the basis of a failure to reinstate is “not cognizable as aviolation of FMLA, where [the plaintiff] remained onleave beyond the expiration of [her] FMLA leave.”Id.Likewise, in Sabatino v. Flik Int’l Corp. 286 F.Supp.2d327, 336 (S.D.N.Y.2003), the Court found that, where theplaintiff did not return to work at the end of her FMLAleave period, defendants had no obligation to return theplaintiff to her former job, let alone to any other job. Seealso Dogmanits v. Capital Blue Cross, 413 F.Supp.2d452, 462 (E.D.Pa.2005) (holding that employees whoexhaust the 12 weeks of leave provided by the FMLAstand to lose their entitlement to job restoration even iftheir employers provide additional, non-FMLA leave);Hofferica v. St. Mary Med. Ctr., 817 F.Supp.2d 569, 577(E.D.Pa.2011) (holding that once an employee exceedsthe duration of her protected leave, the employer is notobligated by the FMLA to keep open the position or toreinstate the employee upon her return). Thus, the Courtfinds that any alleged misconduct by Defendant after May22, 2009, the date Plaintiff’s FMLA leave expired, cannotgive rise to a claim under the FMLA for interference withPlaintiff’s alleged right to reinstatement, and thatDefendant is not estopped from raising this defense.

*17 The evidence is undisputed that at the conclusion ofPlaintiff’s FMLA leave, on May 22, 2009, she remainedunable to perform the essential functions of her teachingposition due to the continuation of her serious healthcondition.3Thus, under 29 C.F.R. § 825.216(c), the FMLAdid not entitle her to be restored to her previous positionor an equivalent position. See Sarno, 183 F.3d at 161;Ridgeway, 2013 WL 1985016, at *20; Ainsworth v.Loudon Cnty. Sch. Bd., 851 F.Supp.2d 963, 976(E.D.Va.2012) (holding that an employer does not violatethe FMLA when it fails to reinstate an employee who isphysically unable to return to work at the conclusion ofthe 12–week period of FMLA leave).

Accordingly, finding no genuine issue of material fact asto Plaintiff’s FMLA interference claims asserted in CountI of the Amended Complaint, the Court concludes thatDefendant is entitled to summary judgment in its favor onCount I.


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B. Plaintiff’s FMLA Retaliation ClaimThe second count of Plaintiff’s Amended Complaint is foralleged unlawful retaliation under the FMLA. Plaintiffcontends that Defendant terminated her for her use andanticipated future use of protected FMLA leave and hercomplaints regarding Defendant’s conduct (Pl.’s Comp. ¶48). Defendant argues that this claim must fail as a matterof law because Plaintiff cannot demonstrate that she wasterminated.

At the summary judgment stage, FMLA retaliation claimsare analyzed under the McDonnell Douglas Corp. v.Green, 511 U.S. 792 (1973), burden-shifting framework.Potenza, 365 F.3d at 168; Weichman v. Chubb & Son, 552F.Supp.2d 271, 289 (D.Conn.2008). Plaintiff must firstmake out a prima facie case of retaliation by showing (1)that she exercised rights protected under the FMLA; (2)that she was qualified for the position: (3) that shesuffered a material adverse employment action by heremployer;4 and (4) that the adverse employment actionoccurred under circumstances giving rise to an inferenceof retaliatory intent. Potenza, 365 F.3d at 168. The burdenof proof at this stage has been characterized as “deminimis.” E.g., Hicks v. Baines, 593 F.3d 159, 166 (2dCir.2010). If this initial burden is met, a “presumption ofretaliation arises,” and the burden shifts to Defendant toarticulate a legitimate, non-retaliatory reason for theadverse employment action. Id. Defendant’s burden is oneof production, not persuasion, and it involves nocredibility assessment. Reeves v. Sanderson PlumbingProds., Inc., 530 U.S. at 142 (internal citations andquotation marks omitted). Defendant must merely setforth, through admissible evidence, “reasons for itsactions which, if believed by the trier of fact, wouldsupport a finding that unlawful discrimination was not thecause of the employment action.”St. Mary’s Honor Ctr. v.Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d407 (1993) (emphasis in original). If Defendant meets thatburden of production, Plaintiff must establish by apreponderance of the evidence that Defendant’s statedreason was pretextual. Serby v. New York City Dept. ofEduc., 526 F. App’x 132, 134 (2d Cir.2013); Wanamaker,899 F.Supp.2d at 207.

*18 In ruling on Defendant’s motion to dismiss, JudgeBryant held that, in order to establish pretext, Plaintiff“must submit evidence that would permit a rationalfact-finder to infer that the discharge was actuallymotivated, in whole or in part, by discrimination.”Id.Subsequently, the Supreme Court handed down itsdecision in University of Southwestern Medical Center v.Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 186 L.Ed.2d 503(June 24, 2013), which held that a “but-for” standard of

causation, rather than a “motivating factor” standard,applies to Title VII retaliation claims. In Nassar, theSupreme Court held that “Title VII retaliation claims mustbe proved according to the traditional principles of but-forcausation,” which “requires proof that the unlawfulretaliation would not have occurred in the absence of thealleged wrongful action or actions of theemployer.”Nassar, 133 S.Ct. at 2533.

Relying on the Supreme Court’s decision in Nassar,Defendant argues that this more arduous “but-for”standard should apply to Plaintiff’s FMLA retaliationclaim.

The cases that have addressed this issue have reachedconflicting results. In Chaney v. Eberspaecher NorthAmerica, 955 F.Supp.2d 811, 2013 WL 3381437, at *9 n.1 (E.D.Mich. July 8, 2013), the Court held that Nassar,which was decided under Title VII, did not change theapplicable causation standards for FMLA retaliationcases. In Sparks v. Sunshine Mills, Inc., No. CV3:12–CV–02544, 2013 WL 4760964, at *17 n. 4(N.D.Ala. Sept.4, 2013), however, the Court reasoned thatthe “but for” standard of Nassar did apply to FMLAretaliation claims because the Eleventh Circuit hadinterpreted the causation standard as requiring a plaintiffto prove that an employer discriminated against anemployee “because” he engaged in an activity protectedby the FMLA, which is similar to the statutory languageof Title VII on which the Nassar Court relied. See alsoTaylor v. Rite Aid Corp., No. WDQ–12–2858, 2014 WL320214, at * 10 (D.Md. Jan.27, 2014) (applying the “butfor” test of Nassar to both Title VII and FMLA retaliationclaims); Latta v. U.S. Steel–Edgar Thompson Plant, No.2:11–cv–1622, 2013 WL 6252844, at *5 (W.D.Pa. Dec.4,2013) (applying the “but-for” standard of causation to aretaliation claim under the FMLA).

Other courts have not had to reach the issue because, evenwhen the less arduous “motivating factor” standard wasapplied, the evidence did not create a genuine issue ofmaterial fact and, thus, summary judgment wasappropriate on the plaintiffs’ FMLA retaliation claims.See Ion v. Chevron USA, Inc., 731 F.3d 379, 380 (5thCir.2013) (recognizing the issue but not addressing it);Catay v. Ochsner Clinic Found., No. 13–2492, 2014 WL432518, at *2 n. 5 (E.D.La. Feb.4, 2014) (same); Reyes v.Texas Health & Human Servs. Comm’n, No.SA–12–CV–907–XR, 2013 WL 6633993, at *2 n. 1(W.D.Tex. Dec.17, 2013) (same); cf. Slade v. AlfredUniv., NO. 11–CV–396, 2013 WL 6081710, at *2(W.D.N.Y. Nov.19, 2013) (finding triable issues of factunder the “but for” standard and, thus, not addressingwhether Nasssar applied to FMLA retaliation claims). As


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discussed below, because the Court concludes that there isno genuine issue of material fact as to whether Plaintiff’sexercise of her exercise of her FMLA rights was amotivating factor in Defendant’s allegedly adverseemployment actions, the Court need not address this issueof first impression in the Second Circuit—i.e. whether toadopt the “but for” standard of Nassar in FMLAretaliation cases.

*19 [9] Assuming—without deciding—that Plaintiff canmeet her burden of establishing a prima facie case ofFMLA retaliation, Defendant has met its burden ofproduction of a legitimate, nonretaliatory reason forterminating her employment. Defendant has producedcompetent evidence that, when Plaintiff’s FMLA leaveexpired, Plaintiff was medically unable to return to workfor more than a year. See29 C.F.R. § 825.216(c) (“If theemployee is unable to perform an essential function of theposition because of a physical or mental condition ... theemployee has no right to restoration to another positionunder the FMLA.”) The burden then shifted to Plaintiff tooffer some evidence from which a jury could infer thatretaliation was at least a motivating factor, if not the “butfor” reason, for her termination. This she has not done.

[10] Plaintiff argues that genuine issues of material factexist concerning whether Defendant’s proffered reasonfor her termination was a pretext for retaliation. Sheargues that a reasonable jury could conclude thatDefendant’s reason was pretextual because (1) the BOEknew that both she and her daughter had suffered medicalsetbacks; (2) she had the ability to return to work in thefall of 2010; (3) Landon had an improper animus towardany teacher absences; (4) she, as a tenured teacher withnine years of experience as a computer teacher, wasreplaced by a classroom teacher with no computerteaching experience, thus negating their desire forclassroom continuity in the interests of the students.

Plaintiff, however, was not terminated until fifteenmonths after her FMLA leave expired on May 22, 2009.Thus, a temporal proximity between Plaintiff’s exercise ofher FMLA rights and her termination does not exist. See,e.g., O’Reilly v. Consol. Edison Co. of New York, Inc.,374 F.Supp.2d 278, 289 (E.D.N.Y.2005), aff’d,173 F.App’x 20 (2d Cir.2006) (finding that a three-month gapbetween a plaintiff’s FMLA leave and termination wasinsufficient to give rise to an inference of retaliation);Reilly v. Revlon, Inc., 620 F.Supp.2d 524, 538(S.D.N.Y.2009) (same holding with respect totwo-and-one-half months). Plaintiff remained anemployee only because her requests for extended leavesof absence were approved by Landon. In Reilly, theplaintiff argued that a retaliatory inference could be drawn

because she was terminated while she was on sick leavefor the same medical condition that caused her to takeFMLA leave. The court rejected this argument, reasoningthat “[i]f plaintiff’s argument were accepted by courts,judges would effectively amend FMLA to expandplaintiff’s right to reinstatement beyond the twelve weeksprovided by Congress, since it would always be possibleto infer a retaliatory motive if an employee’s conditionpersisted beyond twelve weeks.”620 F.Supp.2d at 538.Additionally, the fact that Plaintiff in this case was giventhis extended leave after she exhausted her FMLA leaveweighs against a finding of retaliatory motive on the partof Defendant.

*20 Accordingly, the Court finds that Plaintiff has failedto carry her burden of showing that her exercise of herrights under the FMLA was a motivating factor for anyadverse employment action taken by Defendant.Therefore, the Court holds that Defendant is entitled tosummary judgment on Plaintiff’s FMLA retaliation claimasserted in Count II.

Having found in favor of Defendant on both of Plaintiff’sFMLA counts, the Court does not address the statute oflimitations issue raised by Defendant.

III. Plaintiff’s ADA ClaimIn Count III, Plaintiff alleges that Defendant unlawfullydiscriminated against her and took adverse actions againsther in violation of the ADA, 42 U.S.C. § 12112(a), by (i)not allowing her to return to her computer teacherposition; (ii) not providing her with reasonableaccommodations; (iii) terminating her employmentbecause of her physical disability; and (iv) terminating heremployment because of her known relationship with herdaughter who was known to have a disability, namely acongenital heart defect that would require future surgery.

A. The Timeliness of Plaintiff’s ADA Claim[11] Defendant argues that Plaintiff’s ADA claims areuntimely to the extent that they are based upon conductthat occurred prior to April 16, 2010, which is 300 daysprior to February 10, 2011, the date on which Plaintifffiled her charge of discrimination with the EqualEmployment Opportunity Commission (“EEOC”).See42U.S.C. § 12117(a) (incorporating the enforcementprovisions of Title VII, including 42 U.S.C. § 2000e–5,which requires the filing of a charge with the EEOCwithin either 180 or 300 days5 of the unlawfulemployment practice as a prerequisite to any privateaction under Title VII). Plaintiff responds that the


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“continuing violation” exception applies to make the actsoccurring outside this 300–day window actionable underTitle I of the ADA.

In National Railroad Passenger Corporation v. Morgan,536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002),the Supreme Court held that the language of thecharge-filing provision of Title VII (incorporated into theADA), 42 U.S.C. § 2000e–5(e)(1), “makes the act offiling a charge within the specified time periodmandatory.”Id. at 109.The critical questions are whatconstitutes an “unlawful employment practice” and whenhas that practice “occurred.” Id. at 110.As for discrete actsof discrimination or retaliation, the Court held that the act“occurred” on the day that it “happened.” Id. A party,therefore, must file a charge within 180 or 300 days of thedate of the act or lose the ability to recover for it. Id. Ofparticular relevance to the instant case is the SupremeCourt’s further elaboration that “discrete discriminatoryacts are not actionable if time barred, even when they arerelated to acts alleged in timely filed charges. Eachdiscrete discriminatory act starts a new clock for filingcharges alleging that act.”Id. at 113.However,

*21 [t]he existence of past acts andthe employee’s prior knowledge oftheir occurrence ... does not baremployees from filing chargesabout related discrete acts so longas the acts are independentlydiscriminatory and chargesaddressing those acts arethemselves timely filed. Nor doesthe statute bar an employee fromusing the prior acts as backgroundevidence in support of a timelyclaim.

Id.; see also Kitchens v. U.S. Postal Serv., No. 3:05cv195,2007 WL 1186077, at *3 (D.Conn. Apr.19, 2007)(holding that a plaintiff is not barred from using prior actsas background evidence in support of a timely claim).

Thus, the Supreme Court has rejected the application ofthe “continuing violation” theory to discrete acts ofdiscrimination or retaliation, such as termination, failureto promote, denial of transfer, or refusal to hire, whichPlaintiff has alleged in this case. National RR PasssengerCorp., 536 U.S. at 114. In such a case, the employee canonly file a charge to cover discrete acts that “occurred”within the appropriate time period. Id.

Accordingly, the Court holds that the “continuingviolation” exception does not apply to render actionable

the alleged acts of discrimination and retaliation thatoccurred prior to April 16, 2010.

That holding, however, does not preclude Plaintiff’spursuit of an ADA claim. Here, Plaintiff alleges that shewas not reinstated to her position as a computer teacher,that she was not afforded a reasonable accommodation,and that was terminated because of her disability, whenshe sought to return for the 2010–11 school year. Theseacts fall within within the 300–day period. While Plaintiffcannot assert a claim of disability discrimination basedupon Defendant’s discrete acts of failing to reinstate herprior to April 16, 2010, she may rely on these past eventsas background evidence in support of her timely claims ofdiscrimination.

B. Plaintiff’s Prima Facie Case of Discrimination inViolation of Title I of the ADAThe ADA provides in relevant part that “[n]o coveredentity shall discriminate against a qualified individual onthe basis of disability in regard to ... the discharge ofemployees.. and other terms, conditions, and privileges ofemployment.”42 U.S.C. § 12112(a). Under the ADA, an“otherwise qualified individual” with a physical limitationis entitled to a “reasonable accommodation,” unless thataccommodation would cause an undue hardship to anemployer. 42 U.S.C. § 12112(b)(5). In addition, forpurposes of the ADA, a “qualified individual” is “anindividual who, with or without reasonableaccommodation, can perform the essential functions ofthe employment position that such individual holds ordesires.”42 U.S.C. § 1211(8).

Claims alleging disability discrimination in violation ofthe ADA are subject to the burden-shifting analysisestablished by the Supreme Court in McDonnell DouglasCorp. v. Green, discussed above. Plaintiff must establish aprima facie case; the employer must offer through theintroduction of admissible evidence a legitimatenon-discriminatory reason for the discharge; and theplaintiff must then produce evidence and carry the burdenof persuasion that the proffered reason is a pretext.McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92,96 (2d Cir.2009).

*22 [12] [13] To make out a prima facie case of disabilitydiscrimination with respect to her termination and/orfailure to reinstate her to her original position, Plaintiffmust show that (1) she is a person with a disability underthe meaning of the ADA; (2) Defendant is an employersubject to the ADA; (3) she could perform the essentialfunctions of her job with or without reasonableaccommodation; and (4) she was terminated or suffered


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some other adverse employment action because of herdisability. Reeves v. Johnson Controls World Servs., Inc.,140 F.3d 144, 149–50 (2d Cir.1998). Similarly, to makeout a prima facie case of disability discrimination arisingout of Defendant’s failure to accommodate her, Plaintiffmust show that (1) she is a person with a disability withinthe meaning of the ADA; (2) Defendant is an employercovered by the ADA and had notice of her disability; (3)with reasonable accommodation, she could perform theessential functions of her job; and (4) Defendant refusedto make such accommodations. Graves v. Finch Pruyn &Co., 457 F.3d 181, 184 (2d Cir.2006).

For purpose of this motion, Defendant concedes thatPlaintiff was disabled under 42 U.S.C. § 12102(3).Additionally, there is no question that Defendant is anemployer covered by the ADA, and that Defendant wasaware of her disability.

Defendant argues that Plaintiff cannot make out a primafacie case of disability discrimination both with respect toher alleged termination and her failure to accommodateclaims because (1) Plaintiff could not perform theessential functions of her job until the start of the 2011–12school year; (2) Defendant did not fail to provide areasonable accommodation; and (3) Plaintiff did notsuffer an adverse employment action.

(1) Whether Plaintiff Could Perform the EssentialFunctions of Her Job?[14] The implementing regulations provide that the term“essential functions” means “the fundamental job dutiesof the employment position that the individual with adisability holds or desires.”20 C.F.R. § 1630.2(n)(1).Defendant maintains that the evidence is undisputed thatPlaintiff could not perform the essential functions of herjob from the time she went on bedrest in February 2009through the conclusion of the 2009–10 school year.Defendant, however, overlooks the fact that Plaintiff isclaiming that she was not provided reasonableaccommodations for the following school year, that shewas terminated in the summer of 2010, and that she wasnot reinstated to her former position for the 2010–11school year. On July 1, 2010, Dr. McAllister wrote a letterstating that Plaintiff was able to resume her position astechnology teacher. Thus, at a minimum, there aregenuine issues of material fact as to whether Plaintiffcould perform the essential functions of her job for the2010–11 school year.

(2) Whether Defendant Failed to Provide a Reasonable

Accommodation?Defendant asserts that Plaintiff’s claim that it refused toaccommodate must fail because Plaintiff’s request to beable to work one day a week was not reasonable, as thereare no such teaching jobs, although Landon did agree toallow her work as a per diem teacher; and any contentionthat Defendant was required to keep Plaintiff’s teachingassignment open indefinitely is an undue hardship.

*23 With respect to Defendant’s first argument, asdiscussed above, a failure to accommodate claim basedupon actions taken prior to April 16, 2010, is time-barred.Dr. McAllister’s letter allowing Plaintiff to return to workone-day a week was dated March 2, 2010, and Landon’sresponse denying her request but offering her a per diemteaching position is dated March 5, 2010. Thus, theseevents fall outside the 300–day period.

[15] With respect to Defendant’s claim that it was notrequired to keep her computer teaching position openindefinitely, that is a correct statement of the law. See,e.g., Scott v. Memorial Sloan–Kettering Cancer Ctr., 190F.Supp.2d 590, 596–97 (S.D.N.Y.2002). However, here,Defendant granted Plaintiff’s request for an extension ofher leave through the end of the 2009–10 school year,which was a reasonable accommodation. Thereafter,Plaintiff’s doctor released her to return to her formercomputer teaching position.

Defendant argues that Plaintiff never requested areasonable accommodation with respect to the classroomteaching position that was offered to her in the summer of2010 and, thus, it cannot be faulted for failing to offer anaccommodation that was never requested. Whilegenerally it is the responsibility of the individual with adisability to inform the employer of an accommodationthat is needed, Graves, 457 F.3d at 184, the SecondCircuit has held that “an employer has a duty toaccommodate an employee’s disability if the disability isobvious—which is to say, if the employer knew orreasonably should have known that the employee wasdisabled.”See Brady v. Wal–Mart Stores, Inc., 531 F.3d127, 135 (2d Cir.2008).“[T]he ADA contemplates thatemployers will engage in ‘an interactive process’ [withtheir employees and in that way] work together to assesswhether an employee’s disability can be reasonablyaccommodated.”Id. (quoting Jackan v. New York StateDep’t of Labor, 205 F.3d 562, 566 (2d Cir.2000)). Here,Defendant clearly was aware of Plaintiff’s disability, and,thus, was under an obligation to engage in an interactiveprocess regarding a reasonable accommodation. See Id. at136.


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(3) Whether Plaintiff Suffered an Adverse EmploymentAction?[16] [17] An “adverse employment action” is a “materiallyadverse change in the terms and conditions ofemployment.”Galabya v. New York City Bd. of Educ., 202F.3d 636, 640 (2d Cir.2000).6 An employee need not showthat he or she was formally demoted or terminated. Analteration of an employee’s job duties may qualify as a“materially adverse” change where it “alters the terms andconditions of the [employee’s] employment in amaterially negative way.”Patrolmen’s Benevolent Ass’nof City of New York v. City of New York, 310 F.3d 43, 51(2d Cir.2002), cert. denied,538 U.S. 1032, 123 S.Ct.2076, 155 L.Ed.2d 1061 (2003). There is no exhaustivelist of what constitutes an “adverse employment action.”Weinstein v. Garden City Union Free Sch. Dist., No. CV11–2509, 2013 WL 5507153, at *22 (E.D.N.Y. Sept. 30,2013). The courts have found an adverse employmentaction where an employee was given “an assignment thatwas materially less prestigious, materially less suited tohis [or her] skills and expertise, or materially lessconducive to career advancement.”Galabya, 202 F.3d at641. The Second Circuit has further recognized that a“lateral transfer that does not result in a reduction in payor benefits may be an adverse employment action so longas the transfer alters the terms and conditions of theplaintiff’s employment in a materially negativeway.”Patrolmen’s Benevolent Ass’n, 310 F.3d at51. InRodriguez v. Board of Education of Eastchester UnionFree School District, 620 F.2d 362, 366 (2d Cir.1980), theSecond Circuit found it “abundantly clear that Congressdid not intend to confine the scope of Title VII simply toinstances of discrimination in pecuniary emoluments,”and held that the plaintiff’s transfer from an art teacherposition at the junior high school to one at the elementaryschool level constituted an adverse employment action.See also Brown v. Cox, 286 F.3d 1040, 1045 (8thCir.2002) (holding that reassignment of nurse fromsurgical duties to supply room for health reasons was anadverse employment action even though it did not resultin a reduction in pay). Likewise, employments actionsthat the Second Circuit has deemed sufficientlydisadvantageous to constitute an adverse employmentaction have included a less distinguished titled,significantly diminished responsibilities, or other indicesunique to a particular situation. Beyer v. Cnty. of Nassau,524 F.3d 160, 163 (2d Cir.2008).

*24 [18] After reviewing all of the evidence in the lightmost favorable to Plaintiff, as the nonmoving party, andbearing in mind that the burden of establishing a primafacie case is not onerous, Texas Dep’t of Cmty. Affairs v.Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d207 (1981), the Court concludes that there is sufficient

evidence to permit a jury to find that Defendant’s refusalto reinstate Plaintiff to her computer teaching positionwas an “adverse employment action” despite the fact thata classroom teacher position would have carried the samesalary and benefits. See Brady, 531 F.3d at 134. Basedupon Plaintiff’s testimony, the responsibilities andwork-loads of the two positions were significantlydifferent; the physical demands and stress associated withthe two positions were materially different; and, althoughPlaintiff was certified to teach all elementary grades, shehad acquired ten years of experience and skills teachingonly computer courses. A reasonable juror could concludethat Plaintiff had suffered an adverse employment action.

Regarding the last prong of the McDonnell Douglasframework, it is well-settled that a plaintiff can raise aninference of discrimination by showing disparatetreatment-namely, that a similarly situated employeeoutside the protected group received more favorabletreatment. Int’l Bhd. of Teamsters v. United States, 431U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396(1977). Here, Plaintiff, a tenured teacher with nearly tenyears of computer teaching experience, who was disabled,was replaced by a non-disabled, non-tenured teacher withlittle if any computer teaching experience. She has alsoproduced significant evidence that Landon harbored abias against teachers’ absences, and Landon and Bayerswere both aware of her situation, as well as the healthproblems of her child.

The Court concludes that Plaintiff has produced sufficientevidence to meet her initial burden of establishing a primafacie case of disability discrimination.

C. Whether Plaintiff Can Establish Pretext?[19] Finding that Plaintiff has produced sufficient evidenceto survive summary judgment as to her prima facie caseof disability discrimination, the burden now shifts toDefendant to articulate a legitimate, non-discriminatoryreason for its actions. Texas Dep’t of Cmty. Affairs, 450U.S. at 254. Defendant has met its burden of articulating alegitimate, non-discriminatory reason. Defendantprovided Plaintiff with all of the leave that she requestedas a reasonable accommodation. And, according toLandon and Bayers, the decision to permanently replacePlaintiff at the beginning of the 2009–10 school year wasdone for the consistency of the program and for thebenefit of the students.

Defendant argues that Plaintiff cannot establish that herdisability was the true reason for their actions—in otherwords, she cannot establish that Defendant’s articulatedrationale was a mere pretext for discrimination. In Reeves


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v. Sanderson Plumbing Products, Inc., 530 U.S. at 148,the Supreme Court held that a plaintiff’s prima facie case,combined with sufficient evidence that the employer’sasserted reason is false, may permit the jury to concludethat the employer unlawfully discriminated. In accordancewith Reeves, the Second Circuit in Zimmerman v.Associates of First Capital Corporation, 251 F.3d 376,382 (2d Cir.2001), directed that the task for the court is toexamine the entire record and make a case-specificassessment as to whether a finding of discrimination mayreasonably be made.

*25 Defendant cites to the fact that, despite its knowledgethat Plaintiff and her daughter had physical impairments,it held a job open for her for over a year and welcomedher back when she returned. But, the evidence does notsupport that contention. Defendant did not hold openPlaintiff’s job, and when she discussed with them thepossibility of returning for the 2009–10 school year, theyoffered her the position of a building substitute. When shesought to return for 2010–11, they offered her only aclassroom teaching position, which she had not beenmedically cleared to perform.

Defendant cites to the fact that when Plaintiff’s doctorcleared her to return to work oneday a week, it offered hera per diem teaching position at her pro-rated salary. But,the evidence is not that clear. Plaintiff testified that sheunderstood this position would be at the substituteteaching rate of $90 per day and that Landon nevercommunicated to her that she would be paid at her regularsalary rate.

Rather, when the record is reviewed as a whole, the Courtfinds sufficient evidence to create a genuine issue for trialas to whether Defendant’s reason was a pretext fordiscrimination. There is substantial evidence of Landon’sanimosity concerning teacher absences. Plaintiff hadsignificantly more computer experience than herreplacement. Plaintiff was tenured, her replacement wasnot. Plaintiff had far less classroom experience than herreplacement, thus raising a question as to why Defendantwould prefer to have Plaintiff in the classroom. Plaintiffworked with each of the students once a week and, thus, ifshe were absent for medical reasons, her absence wouldhave far less impact on the students than as a classroomteacher, who was responsible for the same 20 to 25students all day, every day. Moreover, for over threeyears, Defendant had been willing to split the computerteacher position between Plaintiff at. 8 FTE and another.2 FTE teacher. Additionally, although Defendant wasvery accommodating about Plaintiff’s requests forextended leave, it never engaged in an interactive processwith her to determine what accommodations she would

need to return to her former job. Finally, when Plaintiffwas cleared by her doctor in 2010 to return to hercomputer teaching job, Defendant refused to allow her toreturn to this position.

Accordingly, after a careful review of the record, theCourt concludes that there are genuine issues of materialfact as to Plaintiff’s disability discrimination claims setforth in Count III and denies Defendant’s motion forsummary judgment as to Count III.

IV. Plaintiff’s CFEPA Claims

A. Violation of Conn. Gen.Stat. § 46a–60(a)(1) forDisability DiscriminationIn Count IV, Plaintiff alleges that Defendant unlawfullydiscriminated against her in violation of CFEPA, Conn.Gen.Stat. § 46a–60(a)(1), by discharging her fromemployment and discriminating against her in the terms,conditions, and privileges of employment because of herphysical disability.

*26 Connecticut’s Fair Employment Practices Act makesit a discriminatory practice for an employer to dischargefrom employment any individual or to discriminateagainst such individual in compensation or in terms,conditions, or privileges of employment because of, interalia, the individual’s physical disability. Conn. Gen.Stat.§ 46a–60(a)(1).

Under CFEPA, a claim of discrimination must be filedwithin 180 days after the alleged discriminatory act.Conn. Gen.Stat. Ann. § 46a–82(f). Since Plaintiff’scharge of discrimination was filed on February 10, 2011,only those discrete acts of discrimination occurring on orafter August 14, 2010, are actionable. The only act thatPlaintiff alleges is Defendant’s failure to reinstate her. Asdiscussed above, while evidence of actions prior to thisevent can be admitted as background evidence, the onlyacts of discrimination as to which Plaintiff can seek anyrecovery are those occurring after August 14, 2010.

[20] While CFEPA and the ADA are not identical,Connecticut courts apply the same standards to analyzeCFEPA disability claims as are applied to ADA disabilityclaims. Wanamaker, 899 F.Supp.2d at 212 (noting thatCFEPA has a broader definition of disability than theADA). For the same reasons as set forth above withrespect to Plaintiff’s claims under the ADA, the Courtfinds genuine issues of material fact that preclude thegrant of summary judgment in favor of Defendant.


2014 WL 1281937


B. Violation of Conn. Gen.Stat. § 46a–60(a)(7) forPregnancy Discrimination[21] Count V of Plaintiff’s Amended Complaint asserts astate-law claim for pregnancy discrimination underCFEPA, Conn. Gen.Stat. § 46a–60(a)(7). Plaintiff claimsthat Defendant refused to grant her a reasonable leave ofabsence of disability resulting from her pregnancy andrefused to reinstate her to her original job or to anequivalent position with equivalent pay, accumulatedseniority, retirement, fringe benefits, and other servicecredits when she indicated her intent to return to work inAugust 2009.

Subsection 7 of Connecticut’s Fair Employment PracticesAct provides that it is a discriminatory practice for anemployer “(A) [t]o terminate a woman’s employmentbecause of her pregnancy; (B) to refuse to grant to thatemployee a reasonable leave of absence for disabilityresulting from her pregnancy;.... (D) to fail or refuse toreinstate the employee to her original job or to anequivalent position ... upon her signifying her intent toreturn....”Conn. Gen.Stat. § 46a–60(a)(7).

As Judge Bryant discussed in her ruling on Defendant’smotion to dismiss, while there is a paucity of caselawinterpreting this section, it is clear that the refusal toreinstate a pregnant employee to her original job or anequivalent position is a discriminatory practice.Wanamaker, 899 F.Supp.2d at 213 (citing Zamore v.Dyer, 597 F.Supp. 923, 927 (D.Conn.1984)). TheConnecticut Supreme Court has held that section46a–60(a)(7)(D) expressly requires, as a conditionprecedent to establishing a violation, that the claimantmust have signified her intent to return to employmentwith the employer. Comm’n on Human Rights &Opportunities v. Truelove and Maclean, Inc., 238 Conn.337, 353, 680 A.2d 1261 (1996).

*27 Defendant clearly provided Plaintiff with a

reasonable maternity leave. And, Plaintiff indicated herdesire to return to work in her former position as acomputer teacher for the 2010–11 school year, when shewrote Landon, “I would also like to be reinstated to thejob of Computer Teacher at Greens Farms School nextyear.”Defendant, however, refused to make her originalposition available to her and offered her a classroomteaching position in one of five elementary schools. Thus,the question is whether Defendant violated CFEPA byfailing to reinstate Plaintiff to her original job or anequivalent position upon her signifying her intent toreturn. As discussed above, the Court finds genuine issuesof material fact as to whether the classroom teachingposition offered to Plaintiff for the 2010–11 school yearwas an “equivalent” position to the computer teachingposition for purposes of the CFEPA, a matter not decidedin the § 10–151 hearing. Accordingly, the Court deniesDefendant’s motion for summary judgment as to CountV.

Conclusion

For the reasons set forth above, the Court grantsDefendant’s Motion for Summary Judgment as to CountsI and II of Plaintiff’s Amended Complaint and deniesDefendant’s Motion for Summary Judgment as to CountsIII, IV, and V.

This is a Recommended Ruling. SeeFed.R.Civ.P.72(b)(1). Any objection to this Recommended Rulingmust be filed within 14 days after service.SeeFed.R.Civ.P. 72(b)(2).

SO ORDERED.

Footnotes

1 Where the parties have agreed to a statement of fact, no citation to the Local Rule 56 Statements has been provided. Citations tothe record have been included if there was any dispute as to the accuracy of a statement, affidavit, or testimony.

2 Landon distinguished a per diem teacher from a per diem substitute, who would receive only $90 per day (Def.’s Ex. P P, LandonTestimony 29–30).

3 It is undisputed that in June 2009, Plaintiff continued to inform Bayers that she was hospitalized for continued severe pain (Def.’sSt. ¶ 28, admitted by Pl.); that in late July 2009, she informed Bayers that she had been diagnosed with Transverse Myelitis andthat getting through the day was a challenge (Def.’s St. ¶ 29, admitted by Pl.); and that on August 4, 2009, Plaintiff forwardedBayers a note from Dr. McAllister explaining her condition and that “unless we turn the pain around rather dramatically in the nextsix weeks, she may not be able to work or may be able to only work on a limited basis” (Def.’s St. ¶ 32, admitted by Pl.). In fact, itwas not until March 2010 that Dr. McAllister released her to work one day per week in April and two non-consecutive days in May2010.


2014 WL 1281937


4 In Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Courtheld that a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, in otherwords, that it would have dissuaded a reasonable worker from making or supporting a charge of discrimination.

5 In a state, such as Connecticut, that has an entity with the authority to grant or seek relief with respect to the alleged unlawfulpractice, an employee who initially files a charge or grievance with that agency must file the charge with the EEOC within 300days of the alleged unlawful employment practice. In all other states, the charge must be filed within 180 days. 42 U.S.C. §2000e–5(e)(1); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

6 Courts use the same definition for “adverse employment actions” in discrimination cases brought under the ADA, Title VII of theCivil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967. See Brady, 531 F.3d at 134; Noon v. Int’l Bus.Mach., No. 12 Civ. 4544, 2013 WL 6504410, at *6 n. 4 (S.D.N.Y. Dec. 11, 2013).

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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