Bartolotta v. Hum. Res. Agency of New Britain, Inc.

312 A.3d 59

224 Conn.App. 248

Alyssa BARTOLOTTA

v.HUMAN RESOURCES AGENCY OF NEW BRITAIN, INC.

(AC 46091)

Appellate Court of Connecticut.

Argued October 19, 2023

Officially Released March 19, 2024

James V. Sabatini, Newington, for the appellant (plaintiff).

Tamara M. Nyce, Waterbury, with whom, on the brief, was Howard K. Levine, New Haven, for the appellee (defendant).

Elgo, Cradle and Seeley, Js.

ELGO, J.

₂₅₁The plaintiff, Alyssa Bartolotta, appeals from the summary judgment rendered by the trial court in favor of the defendant, Human Resources Agency of New Britain, Inc., in this employment discrimination action. On appeal, the plaintiff claims that the court improperly concluded that there is no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law on all four counts of her complaint. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, viewed in the light most favorable to the plaintiff, and procedural history are relevant to this appeal. The defendant is a nonprofit organization that provides, inter alia, educational services to qualified children. On February 12, 2018, it hired the plaintiff as a teaching assistant in the early childhood division ₂₅₂at its 180 Clinton Street location in New Britain (facility).¹ In that capacity, the plaintiff worked in classrooms with approximately twenty preschool children.

At the time of her hire, the defendant provided the plaintiff with a copy of its employee handbook, which contained various policies. Policy 701 sets forth "rules of conduct" and provides in relevant part: "To ensure orderly operations and provide the best possible work environment, [the defendant] expects employees to follow rules of conduct that will protect the interests and safety of all employees and the organization. The following .. infractions of rules of conduct .. shall result in disciplinary action, up to and including termination …. Working under the influence of alcohol or illegal drugs …. " Policy 703 pertains specifically to drug and alcohol use and provides in relevant part: "[The defendant] will not tolerate any controlled substance or alcohol use that threatens the health, safety or well-being of its employees, clients or the general public. To ensure worker safety and workplace integrity, this agency strictly prohibits the illegal manufacture, possession, distribution or use of controlled substances or alcohol in the workplace by employees. …" Appended to the defendant’s motion for summary judgment was the plaintiff’s signed employee acknowledgment form, in which the plaintiff acknowledged that she "received the handbook" and that she understood "that it is [her] responsibility to read and comply with the policies contained in this handbook …."

The defendant also signed an acknowledgment of the defendant’s drug free workplace policy, which stated in relevant part: "I understand that it is unlawful to manufacture, possess, distribute or use controlled substances or alcohol in the workplace. I have been informed ₂₅₃that violations of the Drug Free Workplace Policy will result in disciplinary action up to and including termination." In her deposition testimony, the plaintiff admitted that she was aware that her employment could be terminated if she came to work impaired.

The plaintiff has suffered from epilepsy her entire life and experiences, on average, one "bad" seizure a month. She nevertheless did not inform the defendant of that condition until she experienced her first seizure at work.² In response, the defendant adopted a medical alert protocol in the spring of 2018 that documented seizure symptoms, protocols, and emergency contacts for the plaintiff. A copy of that protocol, which was titled "Alyssa Bartolotta Medical Alert—Seizure—Partial Complex," was posted on the nurse’s desk. The defendant also allowed the plaintiff, in her discretion, to leave for the day whenever she experienced a seizure. In addition, the defendant transferred the plaintiff to a different classroom to ensure that she would be accompanied by a teacher or another teaching assistant at all times, and in the evenings in particular. In her deposition testimony, the plaintiff admitted that this transfer was an accommodation that the defendant provided for her safety, as well as the safety of students.

In October, 2018, the plaintiff provided the defendant with a note from her physician, which requested that the defendant (1) store Valium³ in the nurse’s office and (2) have the nurse administer it to the plaintiff in the ₂₅₄event that she had a seizure at work.⁴ In her deposition testimony, the plaintiff explained that this note constituted an accommodation request "for the nurse to hold a few doses of Valium locked up somewhere safe, and then for me to lay down for thirty minutes to an hour, rest, and then hop back up and go back to my classroom …. "

In a sworn affidavit submitted in support of the defendant’s motion for summary judgment, Brenda Sherer, the defendant’s Director of Organizational Development and Human Resources, explained that the defendant had a nurse at the facility on only two days each week. Moreover, that nurse was not permitted to administer medications to staff, as such activities exceeded the scope of her employment with the defendant, For that reason, the defendant denied the plaintiff’s request in part. At the same time, the defendant, in consultation with the plaintiff, adopted a modified protocol for staff to follow when the plaintiff sustained a seizure at the facility. A copy of that December 5, 2018 protocol was appended to the defendant’s motion for summary judgment.⁵

Notably, the plaintiff was not prohibited from using Valium when needed at the facility. At her deposition, ₂₅₅the following colloquy occurred between the defendant’s counsel and the plaintiff:

"Q. Were you ever told that you could not have your Valium at work?

"A. No.

"Q. You were just told that the nurse could not be the custodian of your Valium; is that right?

"A. Yes. …

"Q. So … other than [denying the request] to maintain custody of your Valium in the nurse’s office, is there anything else that [the defendant] did not accommodate from your request for accommodation?

"A. No."

On January 2, 2019, an incident occurred at the facility between the plaintiff and Amanda Doty, a teacher in the classroom adjacent to the plaintiff’s. As Doty averred in her sworn affidavit: "I observed [the plaintiff] call a child by the wrong name. [The plaintiff] told me that she was ‘just out of it.’ [The plaintiff] then told me that she uses medical marijuana and that her ‘head is just not right from it yet.’ … [Her] comments made me concerned that she was not okay to be in the classroom with the children because she was still feeling the effects of the marijuana." Doty reported the incident to Suzanne Licki, the teacher in the plaintiff’s classroom, who advised Doty to notify a supervisor. Doty then informed Ana Erazo, the defendant’s Education Manager, of the statements made by the plaintiff that day.

In response, the defendant conducted an investigation into the plaintiff’s purported drug use. As Sherer recounted in her affidavit: "On January 8, 2019, [Erazo] and [Human Resources Director] Andrea Goodison met with [the plaintiff] to discuss the report that she was ₂₅₆impaired in the workplace. … [The plaintiff] admitted that she reported to work impaired and said the cause was taking too much medical marijuana." Copies of the investigation and interview notes were submitted in support of the defendant’s motion for summary judgment,⁶ which indicate that, during that investigation, the plaintiff for the first time presented her medical marijuana card to the defendant.⁷ Those notes also state in relevant part: "When presented with the allegations of what was reported [by Doty] … [the plaintiff] did not deny showing up to work impaired [and stated that] ‘I use a disposable vape pen which gives [between fifty and seventy] puffs [of medical marijuana]. I wasn’t keeping track and I believe the pen ran out. I take it at [8 p.m.]. … It is supposed to wear off within [eight] hours and I take it right after I take the Valium and other seizure medication. There is a possibility I may have used too much [and] more than prescribed [because] I ran out and had [two] seizures the following day, I am prescribed [four] puffs at [a] time." In addition, the notes indicate that the plaintiff "did not deny … reporting to work impaired and … stated, ‘It’s my mother’s fault! I knew I should’ve said something [about the use of medical marijuana]’ …. "

The notes also contain the following colloquy between the plaintiff, Erazo and Goodison:

"[Erazo]: Do you understand that you cannot show up to work impaired because the children require full ₂₅₇attention and if you are impaired you are unable to respond quickly to their needs?

"[The Plaintiff]: Yes, I understand, and I thought [the marijuana] would have worn off by then. My mother is [going to] kill me and I’m mad at myself because I knew I should have told you guys. … You guys have been so nice and accommodating and I messed up.

"[Goodison]: Do you understand that this has nothing to do with your epilepsy?

"[The Plaintiff]: Yes, I do."

At the conclusion of her interview, the plaintiff was suspended without pay and directed to submit to a drug test. The results from that test, which was administered six days after the January 2, 2019 Incident, came back positive for Valium but negative for marijuana.

As part of the investigation, Goodison interviewed Licki, the teacher who worked with the plaintiff on a daily basis. Licki informed her that, for approximately two weeks prior to the January 2, 2019 incident, she observed the plaintiff "to be forgetful, droopy, and unsteady on her feet." Licki at that time expressed concern regarding the safety of children in the plaintiff's care.

The defendant also received a letter...