DocketNumber: No. CV 99 0588990 S
Citation Numbers: 2001 Conn. Super. Ct. 6279, 30 Conn. L. Rptr. 133
Judges: BEACH, JUDGE.
Filed Date: 5/14/2001
Status: Non-Precedential
Modified Date: 7/5/2016
In the first count1, the plaintiff alleges that she was employed by the defendant as a nurse's aide part time in 1985, and in a full time capacity since 1987. She alleged her performance evaluations were good from 1987 through 1996, when she was terminated. She allegedly injured her back in 1991 while at work, was out of work for one year, presumably receiving workers' compensation benefits, and returned with a permanent CT Page 6280 lifting limitation of forty pounds. On her return to work she was discharged, presumably because of the weight limitation. The plaintiff goes on to allege that her union advised her to ask her physician to remove the limitation, and she persuaded her treating physicians to do so. She then returned to work.
She further alleged that she missed various days because of illness, doctors' appointments and doctors' orders, and in August, 1993, and January, 1994, received formal warnings from work for taking too much time off from work, and on December 17, 1993, her treating physician asked the employer to place her on the 11:00 p.m. to 7:00 a.m. shift because there was less lifting of patients required on that shift. She alleged that because of lifting a patient on August 20, 1994, she suffered an injury that caused her to be out of work from August 28 through October 6, 1994, and that she missed a number of other days subsequently because of her work-related disability. She alleged that she continued to receive formal warnings regarding her attendance. On October 18, 1996, she attempted to help a patient up and accidentally caught a ring on the patient's skin, and was subsequently terminated as a result of this incident and a second incident in which she was accused of misconduct but was not actually at work that day. The plaintiff had allegedly been warned that the administrators were out to get her. Her termination occurred on October 23, 1996. She claimed that the employer pursued a course of conduct resulting in her termination which was in retaliation for her having exercised rights under the Workers' Compensation Act and that she suffered various ailments as a result of the discriminatory actions.
The second count incorporates by reference most of the allegations of the first count and alleges in addition that the conduct was extreme and outrageous, and that the employer knew or should have known that such emotional distress would result from its conduct. It claims intentional infliction of emotional distress. The third count alleges negligent infliction of emotional distress.
Summary judgment should be granted "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." Section 17-49 of the Practice Book. A material fact is one which will make a difference in the result. Barrett v. SouthernConnecticut Gas Company,
The necessary elements and shifting burdens in employer retaliation cases are well known and often stated. See, e.g., Ford v. Blue Cross andBlue Shield of Connecticut, Inc.,
"In order to make out a prima facie case in a Worker's Compensation discrimination case, the plaintiff must present evidence of" (a) participation in a protected activity known to the defendant; (b) an employment action disadvantaging the plaintiff (c) the causal connection between the protected activity and the adverse employment action."D'Agata v. Sears Roebuck Co., 1999 WL 643189 (Conn.Super.Ct.)"Musshorn v. East Hamption Board of Education, 2000 Ct. Super. 728 (Jan. 14, 2000) (Rogers, J.). "A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." Musshorn, supra
The burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis." McClee v. Chrysler Corporation,
109 F.3d 130 ,134 (2nd. Cir. 1997). "We have previously held that the level of proof a plaintiff is required to present in order to establish a prima facie case of discrimination is low." De La Cruz v. New York Human Resources Administration Dept. of Social Services,82 F.3d 16 ,20 (2nd. Cir. 1996). The de minimis standard, as the plaintiffs burden of proof for prima facie discrimination, has been universally accepted in federal case law. See Essex v. United ParcelCT Page 6282 Service, Inc.,111 F.3d 1304 (7th Cir. 1997); Henson v. Liggett Group, Incorporated,61 F.3d 270 (4th Cir. 1995); Morgan v. Hilti, Inc.,108 F.3d 1319 (10th Cir. 1997). The plaintift to make out a prima facie case of retaliatory discharge, must establish through de minimis evidence, "(a) participation in a protected activity known to the defendant; (b) an employment action disadvantaging the plaintiff and (c) a causal connection between the protected activity and the adverse employment action." DuBois v. State of New York,966 F. Sup. 144 ,147 (N.D.N.Y. 1997); Johnson v. Palma,931 F.2d 203 ,207 (2nd Cir. 1991).
The defendant also argues that even if a prima facie case can be established, there is no genuine issue as to the ultimate issue of whether the proffered reason for termination was pretextual. It does not CT Page 6283 seem to be seriously disputed that the defendant sustained its burden of offering evidence of a legitimate reason, i.e., the alleged mishandling of patients. The defendant points to portions of the plaintiff's deposition in which she admits that complaints were filed against her for such handling and that she had made such mistakes. The defendant also notes that it accommodated the plaintiff's disabilities for several years. The plaintiff, on the other hand, has submitted evidence suggesting that of the two incidents cited in her termination, one was entirely false because she was not on duty at the time and the other was relatively minor and, in any event, accidental. She suggests, then, that there is evidence that the firing was pretextual. I agree that the plaintiff has submitted sufficient evidence to avoid summary judgment.
The defendant has also moved for summary judgment as to the second count, which alleges intentional infliction of emotional distress. In order to recover on this cause of action, a plaintiff must prove that the alleged conduct was extreme, outrageous and outside the bounds of civilized behavior. Appleton v. Board of Education,
The third count alleges negligent infliction of emotional distress. The defendant relies on Parsons v. United Technologies Corp.,
The motion for summary judgment is denied as to count one and granted as to counts two and three.
_____________________ BEACH, JUDGE
Morgan v. Hilti, Inc. , 108 F.3d 1319 ( 1997 )
William J. McLEE, Plaintiff-Appellant, v. CHRYSLER ... , 109 F.3d 130 ( 1997 )
Wilbert ESSEX, Plaintiff-Appellant, v. UNITED PARCEL ... , 111 F.3d 1304 ( 1997 )
leonard-a-johnson-v-frank-palma-individually-and-as-representative-of , 931 F.2d 203 ( 1991 )
sergio-de-la-cruz-v-new-york-city-human-resources-administration , 82 F.3d 16 ( 1996 )
Shirley S. Henson v. Liggett Group, Incorporated, D/B/A ... , 61 F.3d 270 ( 1995 )
Barrett v. Southern Connecticut Gas Co. , 172 Conn. 362 ( 1977 )