Stubbs v. ICare Management, LLC ( 2020 )

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TANYA STUBBS v. ICARE MANAGEMENT, LLC,
ET AL.
(AC 42551)
Keller, Bright and Beach, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for employment
discrimination pursuant to the Connecticut Fair Employment Practices
Act (§ 46a-51 et seq.) following the termination of her employment. The
plaintiff, who was employed by the defendants as a certified nursing
assistant (CNA), alleged that she was approved for unpaid leave by
the defendants in order to undergo knee surgery but, while she was
recovering from that surgery, she was terminated for failing to report
to work and for failing to report her absences on two dates that occurred
approximately one week before her surgery. The plaintiff alleged that
prior to these absences, she received a phone call from one of the
defendants’ employees, who told her not to report to work on those
two dates, as the defendants were overbooked with CNAs. Since her
surgery, the plaintiff has not sought work as a CNA, because she believed
she has not yet recovered sufficiently to perform the essential functions
required of that position. The defendants filed a motion for summary
judgment and in support thereof, submitted various documents including
the defendants’ attendance policy, portions of the plaintiff’s sworn depo-
sition, disciplinary reports warning the plaintiff about her absenteeism
and the certified letter sent to the plaintiff, which terminated her employ-
ment. The trial court granted the defendants’ motion for summary judg-
ment and rendered judgment thereon, from which the plaintiff appealed
to this court. Held:
1. The trial court erred in rendering summary judgment in favor of the
defendants as to the plaintiff’s discrimination claims, as there was a
genuine issue of material fact as to whether the termination of the
plaintiff’s employment was pretextual and as to whether, at the time
her employment was terminated, the plaintiff was qualified to perform
the essential functions of her job, with a reasonable accommodation of
a leave of absence: the record was devoid of any evidence regarding
how the defendants treated employees similarly situated to the plaintiff
who had sought leave to accommodate a disability, and a jury reasonably
could conclude that the defendants told the plaintiff not to report to
work on the dates at issue in order to create a pretext so that they
would have a ground to terminate her employment independent of her
disability and of her request for a leave of absence accommodation; the
court’s conclusion that the plaintiff failed to establish a prima facie case
of discrimination based on the material fact that the plaintiff was not
qualified to perform the essential functions of her job was incorrect, as
it was based on evidence of the plaintiff’s ability to perform after her
employment was terminated, the determination of whether the defen-
dant was qualified, with or without an accommodation, must be made
at the time of termination.
2. The trial court erred in rendering summary judgment for the defendants
on the plaintiff’s reasonable accommodation claims, as there was at
least a genuine issue of material fact as to whether the plaintiff could
perform the essential functions of her job with an accommodation of
a leave of absence to have and recover from surgery; the court incorrectly
focused on the plaintiff’s accommodations after the defendants termi-
nated her employment, had the defendants terminated the plaintiff’s
employment at the end of the three month leave of absence, her inability
to perform the essential functions of her job at that time would have
been highly relevant, and likely to be dispositive of her claim, however,
the defendants terminated her employment shortly after her leave of
absence had begun and thus, it was expected, although not certain, that
the plaintiff would have been able to return to work following the
accommodation of a leave of absence.
3. This court declined to review the plaintiff’s claims alleging retaliation, as
those claims had been inadequately briefed; the brief was devoid of any
discussion of the elements of retaliation, the law governing such, or the
court’s analysis of the plaintiff’s claims.
Argued February 5—officially released June 30, 2020
Procedural History
Action to recover damages for, inter alia, alleged
employment discrimination, and for other relief,
brought to the Superior Court in the judicial district of
New Haven, where the trial court, S. Richards, J.,
granted the defendants’ motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Reversed in part; further pro-
ceedings.
Zachary T. Gain, with whom, on the brief, was James
V. Sabatini, for the appellant (plaintiff).
Rachel V. Kushnel, for the appellees (defendants).
Opinion
BRIGHT, J. The plaintiff, Tanya Stubbs, appeals from
the summary judgment rendered by the trial court in
favor of the defendants, ICare Management, LLC
(ICare), and Meriden Care Center, LLC (Meriden), on
the plaintiff’s complaint, which alleged violations of the
Connecticut Fair Employment Practices Act, General
Statutes § 46a-51 et seq. In particular, the plaintiff
alleged that the defendants terminated her due to her
disability, failed to provide her with a reasonable
accommodation for her disability, and retaliated against
her for requesting a reasonable accommodation.1 On
appeal, the plaintiff claims that the court erred in
determining that there were no genuine issues of mate-
rial fact as to whether (1) the defendants’ stated reason
for their termination of the plaintiff’s employment was
pretextual and as to whether, at the time her employ-
ment was terminated, she was qualified, with or without
a reasonable accommodation, to perform the essential
functions of her job, and (2) the defendants failed to
provide the plaintiff with a reasonable accommodation.
Because there are genuine issues of material fact as to
the plaintiff’s claims of discrimination and failure to
accommodate, we reverse the judgment of the trial
court as to those claims. We affirm the trial court’s
judgment as to the plaintiff’s claims of retaliation
because she has failed to brief the claims and, therefore,
has abandoned them.
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are relevant
to our analysis of the plaintiff’s claims on appeal. Meri-
den is a skilled nursing facility that does business as
Silver Springs Care Center; ICare manages Silver
Springs Care Center. The plaintiff began working for
the defendants in April, 2015, as a certified nursing
assistant (CNA). Prior to being hired by the defendants,
the plaintiff had worked as a licensed CNA since shortly
after she graduated from high school in 1982. When she
was hired by the defendants, the plaintiff was able to
perform the essential functions of her job, which
included pushing residents in wheelchairs, pushing
medical carts, and direct patient care, including feeding
and assisting with ambulation. In June, 2015, the defen-
dants gave the plaintiff a positive performance review.
The review did not identify any function of her job that
the plaintiff could not perform. In fact, the evaluation
stated that the plaintiff met the standards for all job
requirements, except for attendance, as to which the
evaluation stated that there was one issue, and that the
plaintiff had taken actions to ensure that the issue did
not arise again. The evaluation also described the plain-
tiff as an excellent employee.
The plaintiff does have a physical disability2 and had
a history of knee problems, which resulted in multiple
surgeries on both of her knees, before she began work-
ing for the defendants. Nevertheless, she was experienc-
ing no difficulties with her knees when she was hired
by the defendants. At some point while working for the
defendants, the plaintiff began experiencing severe pain
in both knees. Consequently, she requested that her
work hours be reduced from twenty hours per week
to twelve hours per week. The defendants agreed. By
the end of 2015, the plaintiff informed the defendants
that she needed to have surgery on her right knee. She
requested leave under the Family and Medical Leave
Act, 29 U.S.C. § 2601 et seq., which request the defen-
dants denied because the plaintiff had not worked for
the defendants long enough to qualify for such leave.
The defendants informed the plaintiff, however, that
she could apply for an unpaid leave of absence, which
she did. The defendants approved the plaintiff’s unpaid
leave of absence, to begin on February 10, 2016, so
that the plaintiff could have and recover from her knee
surgery. It was anticipated that the plaintiff would need
approximately three months to recuperate.
While the plaintiff was recovering from surgery, she
received a phone call from an employee of one of the
defendants informing her that her employment was
being terminated for failing to report to work and for
failing to call to report her absence, which the defen-
dants termed a ‘‘no call no show,’’ on February 6 and
7, 2016.3 Thereafter, the plaintiff received a letter from
Gail Mari, an employee of Meriden, confirming the plain-
tiff’s termination from employment. The letter stated
that the plaintiff’s employment was terminated ‘‘due
to second occurrence of no call no show activity on
[February 6 and 7, 2016].’’4 The defendants’ ‘‘Daily eCen-
tral Facility Call Out/Replacement Log,’’ submitted by
the plaintiff in opposition to the defendants’ motion for
summary judgment, includes an entry for the plaintiff,
dated February 6, 2016, stating that the plaintiff was a
‘‘no call no show’’ on that date. The log does not contain
an entry for the plaintiff for February 7, 2016. In addi-
tion, no party submitted an affidavit or any other evi-
dence explaining the log, when it was completed, or by
whom it was completed.
The plaintiff testified at her deposition that she was
not a no call no show on February 6 and 7, 2016. She
testified that she had received a phone call from one
of the defendants’ employees, whom she could not iden-
tify, telling her not to report to work on those dates
because the defendants were overbooked with CNAs.
She further testified that the defendants ‘‘constantly’’
overbooked employees and that she and other CNAs
were called quite often and told not to report to work.
She also testified that she told the director of nursing,
the assistant director, and some of the other CNAs that
she had been told not to report to work on February
6 and 7, 2016. She identified the director of nursing as
‘‘Valerie something.’’ According to the plaintiff, Valerie
said that she would look into it. The defendants submit-
ted no affidavit from Valerie or any other employee
addressing the plaintiff’s testimony that she was told
not to report to work because Meriden was overbooked
and that the plaintiff had reported the call to various
employees of the defendants.
Although the plaintiff received clearance from her
physician to return to work without restrictions on May
10, 2016, she has not sought work as a CNA. In fact,
as of March 23, 2018, the date of her deposition, the
plaintiff still believed that she had not recovered suffi-
ciently to perform the essential functions of a CNA and
she had no plans to return to that profession.
Following a January 31, 2017 release of jurisdiction
notice from the Commission on Human Rights and
Opportunities, the plaintiff, on March 25, 2017, com-
menced this action by service of process against the
defendants. The plaintiff alleged the following causes of
action against each defendant: disability discrimination
(counts one and two), retaliation (counts three and
four), failure to accommodate (counts five and six)—
all in violation of General Statutes § 46a-60—and aiding
and abetting against ICare.5 The defendants responded
with an answer and several special defenses.
On April 26, 2018, the defendants filed a motion for
summary judgment on all counts of the plaintiff’s com-
plaint. In their motion, the defendants alleged that there
were no disputed material facts, and that they were
entitled to judgment as a matter of law because (1)
the plaintiff could not establish a prima facie case to
support any of her claims, and (2) her employment was
terminated for a nondiscriminatory reason, namely, that
she had failed to report to work on two scheduled days
before her leave of absence without notifying them, in
violation of their attendance policy. In support of their
motion, the defendants submitted a memorandum of
law, a portion of the plaintiff’s sworn deposition, and
various documents, including the defendants’ atten-
dance policy, disciplinary reports warning the plaintiff
about her absenteeism and no call no shows, and Mari’s
February 17, 2016 certified letter that had been sent to
the plaintiff by the defendants terminating her employ-
ment for ‘‘no call no show activity’’ on February 6 and
7, 2016.
The plaintiff objected to the defendants’ motion, con-
tending that there existed genuine issues of material
fact. Attached to her memorandum of law in opposition
to the defendants’ motion for summary judgment was
a portion of her deposition and various documents,
including her request for leave, the defendants’ ‘‘Daily
eCentral Facility Call Out/Replacement Log,’’ and the
defendants’ letter notifying her that her employment
had been terminated ‘‘for cause.’’
Following a September 24, 2018 short calendar hear-
ing, the court, on January 18, 2019, issued a memoran-
dum of decision in which it granted the defendants’
motion for summary judgment. After setting forth the
applicable law governing the plaintiff’s claims and the
standard for summary judgment, the court concluded
that the plaintiff had set forth sufficient, albeit scant,
evidence showing that her employment was terminated
‘‘under circumstances giving rise to an inference of
discrimination.’’ Specifically, the court referred to the
plaintiff’s deposition wherein she testified that she had
requested and been granted time off to have knee sur-
gery, but, just a few days before she was scheduled to
begin her leave of absence, the defendants told her that
she did not have to report to work, specifically on the
February 6 and 7, 2016, due to overstaffing, and there-
after wrote her up as a no call no show for those days,
using her nonattendance as a basis for the termination
of her employment. The court also concluded, however,
that the defendants had produced documents that dem-
onstrated a legitimate nondiscriminatory reason for the
termination of the plaintiff’s employment, namely, that
the plaintiff repeatedly had violated the defendants’
absenteeism policy, and that the plaintiff had produced
no evidence to indicate that the call she had received
telling her not to report to work on February 6 and 7,
2016, was ‘‘motivated by illegal discriminatory bias.’’
The court also focused on the fact that the plaintiff
testified that she was treated the same as other employ-
ees while at work.
Additionally, the court concluded that the plaintiff
could not establish a prima facie case of discrimination
because she admitted in her deposition that she was
not qualified for the position of CNA at the time she
was terminated from her employment and that she has
not been qualified since that time. As to the plaintiff’s
claim that the defendants failed to provide her with a
reasonable accommodation, the court concluded that
the plaintiff admitted that she had never requested an
accommodation other than her medical leave, which
the defendants granted. Insofar as the plaintiff argued
that the defendants effectively denied her the accommo-
dation of a leave of absence because they terminated
the plaintiff’s employment shortly after her leave com-
menced, the court concluded that the plaintiff readily
admitted that she had not been able to perform the
functions of her job since her surgery, with or without
an accommodation. Finally, as to the plaintiff’s claim
of retaliation, the court concluded that because the
defendants had advanced a nondiscriminatory reason
for terminating the plaintiff’s employment, namely, her
repeated no call no shows, she could not establish a
prima facie case of retaliation. Accordingly, the court
rendered judgment in favor of the defendants. This
appeal followed.
Initially, we set forth our standard of review. ‘‘The
standard of review of a trial court’s decision granting
summary judgment is well established. Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The courts are in entire agreement that the
moving party . . . has the burden of showing the
absence of any genuine issue as to all the material facts
. . . . When documents submitted in support of a
motion for summary judgment fail to establish that
there is no genuine issue of material fact, the nonmoving
party has no obligation to submit documents establish-
ing the existence of such an issue. . . . Once the mov-
ing party has met its burden, however, the [nonmoving]
party must present evidence that demonstrates the exis-
tence of some disputed factual issue. . . . Our review
of the trial court’s decision to grant the defendants’
motion for summary judgment is plenary. . . . On
appeal, we must determine whether the legal conclu-
sions reached by the trial court are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Internal quotation marks omitted.) Barbabosa v. Board
of Education, 189 Conn. App. 427, 436–37, 207 A.3d
122 (2019).
I
On appeal, the plaintiff claims that the court erred
in rendering summary judgment on her disability dis-
crimination claims because there are genuine issues of
material fact as to whether the defendants’ stated rea-
son for its termination of the plaintiff’s employment
was pretextual and as to whether, at the time her
employment was terminated, she was qualified, with or
without a reasonable accommodation, to perform the
essential functions of her job. We agree with the
plaintiff.
‘‘Under the Connecticut Fair Employment Practices
Act . . . employers may not discriminate against cer-
tain protected classes of individuals, including those
who are physically disabled.’’ Desrosiers v. Diageo
North America, Inc., 314 Conn. 773, 775, 105 A.3d 103(2014). Section 46a-60 (b) (1) provides in relevant part:
‘‘It shall be a discriminatory practice . . . [f]or an
employer . . . to discharge from employment any indi-
vidual or to discriminate against such individual in com-
pensation or in terms, conditions or privileges of
employment because of the individual’s . . . physical
disability . . . .’’
‘‘The term pretext is most often used in the context
of evaluating claims of discrimination based on adverse
employment action under the burden shifting analysis
enumerated by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and adopted
by this court in Ford v. Blue Cross & Blue Shield of
Connecticut, Inc., 216 Conn. 40, 53–54, 578 A.2d 1054(1990). Under this analysis, the employee must first
make a prima facie case of discrimination. The
employer may then rebut the prima facie case by stating
a legitimate, nondiscriminatory justification for the
employment decision in question. The employee then
must demonstrate that the reason proffered by the
employer is merely a pretext and that the decision actu-
ally was motivated by illegal discriminatory bias.
Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d
518 (2002).
‘‘In order to establish a prima facie case, the com-
plainant must prove that: (1) he [was] in the protected
class; (2) he was qualified for the position; (3) he suf-
fered an adverse employment action; and (4) that the
adverse action occurred under circumstances giving
rise to an inference of discrimination. . . . Jacobs v.
General Electric Co., 275 Conn. 395, 400, 880 A.2d 151(2005). We note, additionally, that [t]he [fact finder’s]
disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion
of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimina-
tion. Thus, rejection of the defendant’s proffered rea-
sons will permit the trier of fact to infer the ultimate
fact of intentional discrimination, and . . . upon such
rejection, [n]o additional proof of discrimination is
required . . . . St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 511, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).’’
(Internal quotation marks omitted.) Jackson v. Water
Pollution Control Authority, 278 Conn. 692, 705–706,
900 A.2d 498 (2006). ‘‘[T]o defeat summary judgment
[however] . . . the plaintiff’s admissible evidence
must show circumstances that would be sufficient to
permit a rational finder of fact to infer that the defen-
dant’s employment decision was more likely than not
based in whole or in part on discrimination . . . .’’
(Internal quotation marks omitted.) Taing v. Camrac,
LLC, 189 Conn. App. 23, 28, 206 A.3d 194 (2019).
A
We turn first to the court’s conclusion that, although
the plaintiff produced sufficient evidence to show that
her employment ‘‘was terminated under circumstances
giving rise to an inference of discrimination,’’ she failed
to present evidence sufficient to create a genuine issue
of material fact that the defendants’ stated reason for
terminating the plaintiff was pretextual. ‘‘To prove pre-
text, the plaintiff may show by a preponderance of the
evidence that [the defendant’s] reason is not worthy of
belief or that more likely than not it is not a true reason
or the only true reason for [the defendant’s] decision
to [terminate the plaintiff’s employment] . . . . Of
course, to defeat summary judgment . . . the plaintiff
is not required to show that the employer’s proffered
reasons were false or played no role in the employment
decision, but only that they were not the only reasons
and that the prohibited factor was at least one of the
motivating factors.’’ (Citation omitted; internal quota-
tion marks omitted.) Taing v. Camrac, LLC, supra, 189
Conn. App. 28–29. ‘‘A plaintiff may show pretext by
demonstrating such weaknesses, implausibilities,
inconsistencies, incoherences, or contradictions in the
employer’s proffered legitimate reasons for its action
that a reasonable [fact finder] could rationally find them
unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory rea-
sons.’’ (Internal quotation marks omitted.) Bombero v.
Warner-Lambert Co., 142 F. Supp. 2d 196, 203 n.7 (D.
Conn. 2000), aff’d 9 Fed. Appx. 38 (2d Cir. 2001).
The court correctly accepted, at the summary judg-
ment stage, the plaintiff’s sworn testimony that she was
not a no call no show on February 6 and 7, 2016, but
that she was told by the defendants not to report on
those days. Nevertheless, the court found that there
was no evidence that the plaintiff was treated differently
than other employees, and, therefore, there was no evi-
dence that the defendants’ decision to terminate the
plaintiff’s employment was motivated by an illegal dis-
criminatory bias.
The court’s analysis misses the import of the plain-
tiff’s claim. The plaintiff does not claim that she was
discriminated against because of her disability while at
work. Instead, her claim is that the defendants discrimi-
nated against her because she sought leave due to her
disability. The record is devoid of any evidence, one
way or the other, regarding how the defendants treated
employees similarly situated to the plaintiff who sought
leave to accommodate a disability. What the evidence,
viewed in the light most favorable to the plaintiff, does
reflect is that the plaintiff requested and was granted
a leave of absence beginning on February 10, 2016, to
have surgery to correct knee pain that arose from her
disability. The plaintiff submitted evidence that, four
days before her leave was scheduled to begin, the defen-
dants called her to tell her not to report to work on
February 6 and 7, 2016, because they were overbooked
with CNAs on those days. Days later, while the plaintiff
was recovering from surgery, an employee of the defen-
dants called the plaintiff and informed her that her
employment was being terminated for a no call no show
on February 6 and 7, despite the fact that the defendants
had told her not to report to work. Furthermore, the
daily log kept by the defendants does not show that
the plaintiff was a no call no show on February 7.
Finally, the plaintiff testified at her deposition that it
was not true that she had a previous no call no show
on December 3, 2015, or that she was suspended for
that alleged incident.6 On the basis of this evidence,
if believed, a jury reasonably could conclude that the
defendants told the plaintiff not to come to work on
February 6 and 7, 2016, in order to create a pretext that
she was a no call no show on those days so that they
would have a ground to terminate her independent of
her disability and her request for a leave of absence
accommodation. Consequently, the court erred in con-
cluding that there were no genuine issues of material
fact regarding whether the defendants’ stated reason for
terminating the plaintiff’s employment was pretextual.
B
We turn next to the court’s conclusion that the plain-
tiff failed to establish a prima facie case of discrimina-
tion because she failed to establish a genuine issue of
material fact as to whether she was qualified to perform
the essential functions of her job, with the reasonable
accommodation of a leave of absence, at the time the
defendants terminated her employment.
To establish a prima facie case of employment dis-
crimination pursuant to § 46a-60 (b) (1) on the basis of
either a disability discrimination claim or a reasonable
accommodation claim, a plaintiff must establish a com-
mon essential element, namely, that he or she is quali-
fied for the position. See Curry v. Allan S. Goodman,
Inc., 286 Conn. 390, 415, 425–26, 944 A.2d 925 (2008).
‘‘To be a qualified individual with a disability, a plain-
tiff must be able to perform the essential functions of
his job, with or without a reasonable accommodation,
at the time of the adverse employment decision.’’
(Emphasis added.) Tomick v. United Parcel Service,
Inc., 135 Conn. App. 589, 611 n. 15, cert. denied, 305
Conn. 920, 47 A.3d 389 (2012).
In the present case, the court rested its conclusion
that there was no genuine issue of material fact that
the plaintiff was not qualified to perform the essential
functions of her job on the plaintiff’s deposition testi-
mony. The plaintiff testified at her deposition, in March,
2018, that she was unable to perform the essential func-
tions of a CNA following her surgery and that, two years
after the surgery, she still was unable to perform those
functions. On the basis of this testimony, the court
concluded that ‘‘[t]he evidence shows that the plaintiff
was unable to perform the essential functions of her
job as a CNA at the time of the adverse employment
action and remained unable to do so at least until the
time of her deposition in March of 2018.’’
The problem with the court’s analysis is that it is
based on evidence of the plaintiff’s inability to perform
the essential functions of her job after her employment
was terminated. At the time the defendants terminated
her employment, the plaintiff had just undergone knee
surgery. The purpose of the plaintiff’s leave of absence
was to permit her to have the surgery and to recover
from it so that she could return to work. Put another
way, the expectation of the parties was that the plaintiff
would be able to perform the essential functions of
her job with the accommodation of a leave of absence
related to her knee surgery. Thus, when the defendants
terminated the plaintiff’s employment, immediately
after her surgery, it still was expected that she would
remain qualified to perform the essential functions of
her job, as she was before her surgery, if allowed the
accommodation of time to recover. It was only after
her employment was terminated, and she was unable
to recover sufficiently, that it became clear that she
would not be able to perform the essential functions
of her job, even with the accommodation of the leave
of absence.7 Because, however, the determination of
whether the plaintiff was qualified, with or without an
accommodation, must be made at the time of termina-
tion, the fact that she was unqualified posttermination
is irrelevant. The court’s reliance on the plaintiff’s post-
termination condition for its conclusion that the plain-
tiff was unqualified to perform the essential functions
of her job at the time that she was terminated, there-
fore, was improper, because all of the parties antici-
pated that she again would be qualified after her accom-
modation.8 Consequently, there is a genuine issue of
material fact as to whether the plaintiff was qualified
to perform the essential functions of her job, with the
reasonable accommodation of a leave of absence, at
the time the defendants terminated her employment.
II
We next consider the court’s rejection of the plain-
tiff’s claim that the defendants failed to provide her
with a reasonable accommodation. The plaintiff claims
that this was error, because, although the defendants
granted her request for a leave of absence to have and
recover from knee surgery, there is a genuine issue of
material fact as to whether they then fired her for taking
that accommodation.
‘‘In order to establish a prima facie case for a reason-
able accommodation claim, the plaintiff must produce
enough evidence for a reasonable jury to find that (1)
he is disabled within the meaning of the [statute], (2)
he was able to perform the essential functions of the
job with or without a reasonable accommodation, and
(3) [the defendant], despite knowing of [the plaintiff’s]
disability, did not reasonably accommodate it.’’ (Inter-
nal quotation marks omitted.) Barbabosa v. Board of
Education, supra, 189 Conn. App. 437–38.
The court accurately set forth the parties’ respective
positions regarding the plaintiff’s claim. ‘‘The defendant
argues that there is no evidence in the record that the
plaintiff requested a reasonable accommodation, other
than time off for her surgery, which was granted . . . .
The plaintiff, on the other hand, contends that the defen-
dants effectively denied the leave of absence accommo-
dation because the defendants terminated the plaintiff
shortly after her leave commenced.’’ The court did not
address these respective arguments but, instead, ren-
dered summary judgment because the plaintiff failed
to produce evidence ‘‘that the leave of absence accom-
modation would have ever allowed her to perform the
essential functions of the job.’’ As it did with the plain-
tiff’s discrimination claims, the court focused on the
plaintiff’s deposition testimony that ‘‘she was physically
unable to work even after the alleged three month
period requested for the leave of absence.’’
As was true of its analysis of the plaintiff’s discrimina-
tion claim, the court incorrectly focused on the plain-
tiff’s qualifications after the defendants terminated her
employment. Had the defendants terminated the plain-
tiff’s employment at the end of the three month leave
of absence, her inability to perform the essential func-
tions of her job at that time would be highly relevant,
and, very likely, dispositive of her claim. However, the
defendants terminated her employment shortly after
her leave of absence had begun. At that point, it was
expected, although admittedly not certain, that the
plaintiff would be able to return to work following the
leave of absence accommodation. Thus, at the time of
her termination from employment, there was at least a
genuine issue of material fact as to whether the plaintiff
could perform the essential functions of her job with
the accommodation of a leave of absence to have and
recover from surgery to her right knee. Consequently,
the court erred in rendering summary judgment for the
defendants on the plaintiff’s reasonable accommoda-
tion claims.
III
Finally, the plaintiff claims that the court erred in
rendering summary judgment for the defendants on
her retaliation claims. We decline to review this claim
because it has been inadequately briefed. The appel-
lant’s brief makes only passing references to ‘‘retalia-
tion’’ in its statement of issues, introduction and in a
heading in the argument section of the brief. The brief
is devoid of any discussion of the elements of such
claims, the law governing such claims, or the trial
court’s analysis of the plaintiff’s claims. In fact, the
section of the appellant’s brief which, purportedly, was
going to address the retaliation claims, addresses only
the plaintiff’s disability discrimination claims and asks
only that the court’s decision rendering summary judg-
ment on the disability claims be reversed.
‘‘We are not required to review issues that have been
improperly presented to this court through an inade-
quate brief . . . . Analysis, rather than mere abstract
assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . [F]or
this court judiciously and efficiently to consider claims
of error raised on appeal . . . the parties must clearly
and fully set forth their arguments in their briefs . . . .
The parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case
and the law cited.’’ (Citation omitted; internal quotation
marks omitted.) State v. Michael T., 194 Conn. App.
598, 617, 222 A.3d 105 (2019). Accordingly, we decline
to review this claim.
The judgment is reversed as to counts one and two,
which allege discrimination on the basis of disability,
and as to counts five and six, which allege a failure to
accommodate, and the case is remanded for further
proceedings on those counts; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
In her complaint, the plaintiff also brought one count of ‘‘aiding and
abetting’’ against ICare. She raises no claim of error on appeal in regard to
the court rendering judgment in favor of ICare on that count.
2
It is not disputed that the plaintiff has a condition known as Turner
Syndrome.
3
The record is unclear as to the date of the plaintiff’s surgery. The plaintiff
testified at her deposition that she could not recall the exact date of her
surgery, but it was ‘‘something like’’ February 10, 2016. She further testified
that she was verbally informed of her termination by a phone call she
received while still under the effects of anesthesia. Finally, a February 17,
2016 letter from one of Meriden’s employees stated that it was confirming
her telephone discussion with the plaintiff that day. Thus, it appears from
the record that the plaintiff’s surgery happened no earlier than February
10, 2016, when her leave of absence started, and no later than February
17, 2016.
4
Mari’s letter does not identify the first no call no show occurrence.
The evidence submitted in support of the defendants’ motion for summary
judgment includes three corrective action records relating to the plaintiff’s
attendance. Only one of the records, dated December 17, 2015, indicates
that the plaintiff was a no call no show. That record reflects that the plaintiff
received a one day suspension due to being a no call no show on December 3,
2015. The corrective action record prepared in connection with the plaintiff’s
termination also states that the plaintiff was a no call no show on December
3, 2015. The plaintiff disputes the accuracy of these records. She testified
at her deposition that she had the day off on December 3, 2015, so she was
not a no call no show on that date. She further testified that she was never
suspended and noted that she did not sign the record where it calls for the
employee’s signature. On the line where the plaintiff would have signed,
someone handwrote the words ‘‘via telephone.’’ The plaintiff denied ever
having such a phone call with an employee of one of the defendants about the
December 3, 2015, alleged no call no show. Despite the plaintiff’s deposition
testimony, the defendants provided no affidavits from anyone who com-
pleted the record, who spoke to the plaintiff about the alleged no call no
show, or who could confirm that the plaintiff, in fact, was suspended.
5
See footnote 1 of this opinion.
6
The court also noted that the defendants presented evidence that the
plaintiff violated their absenteeism policy on at least three separate occa-
sions. Any reliance on those occasions to support the defendants’ motion
for summary judgment is misplaced because the defendants’ stated reason
for terminating the plaintiff’s employment was that her failure to come to
work on February 6 and 7, 2016, was her second no call no show incident,
with the first such incident allegedly having occurred on December 3, 2015.
On the basis of the plaintiff’s deposition testimony, there is a genuine issue
of material fact as to whether she was a no call no show on any of those
dates. Any other attendance issues, not being the stated reason for the
defendants’ termination of the plaintiff’s employment, are irrelevant to the
consideration of the defendants’ motion.
7
The plaintiff argues that there is a genuine issue of material fact as to
whether she was qualified after the defendants terminated her employment
because the plaintiff’s treating physician cleared her to return to work as
of May 10, 2016. Putting aside the relevance of her physician’s opinion,
given the plaintiff’s repeated admissions that she can no longer perform the
essential functions of a CNA, such evidence does not address directly
whether the plaintiff was qualified in February, 2016, when the defendants
terminated her employment.
8
The court and the defendants relied on two cases that made references
to a plaintiff’s posttermination deposition testimony that they remained
unable to perform the essential functions of their jobs at the time of their
depositions: Desmond v. Yale-New Haven Hospital, Inc., 738 F. Supp. 2d
331 (D. Conn. 2010), and Daley v. Cablevision Systems Corp., United States
District Court, Docket No. 12-CV-6316 (NSR) (S.D.N.Y. March 7, 2016), aff’d,
675 Fed. Appx. 97 (2d Cir. 2017). Such reliance is misplaced. Although the
court in each case made reference to the plaintiff’s condition at the time
of his or her deposition, each court’s decision was based on the plaintiff’s
ability to perform the essential functions of his or her job at the time
of his or her termination. In Desmond, the plaintiff’s employment was
terminated only after the plaintiff received an extended leave of absence
following surgery to address her disability and after a medical report indi-
cated that, despite the leave of absence, she remained unable to perform
the essential functions of her job. Desmond v. Yale-New Haven Hospital,
Inc., supra, 738 F. Supp. 2d. 341. Furthermore, she did not argue that the
defendant failed to accommodate her with a leave of absence but, rather,
that it should have provided either a second employee to do the physical
parts of her job that she was unable to perform; id., 348–49; or it should
have provided her with medical treatment to overcome her disability. Id.,
350. The court concluded that neither proposed accommodation was reason-
able as a matter of law. Id., 349–50, 352. Similarly, in Daley, the plaintiff’s
employment was terminated after he had received multiple leaves of
absences to address his disability, but was still unable to perform the essen-
tial functions of his job after the leaves of absence ended. Daley v. Cablevi-
sion Systems Corp., supra, United States District Court, Docket No. 12-CV-
6316 (NSR). The plaintiff also refused to pursue less physically demanding
positions that he could have performed with his disability. Id. In this case,
the defendants do not argue that the plaintiff’s request for a leave of absence
as an accommodation was unreasonable. Furthermore, unlike in Desmond
and Daley, the plaintiff’s employment was terminated during the reasonable
accommodation, not after it had expired.