Curry v. Allan S. Goodman, Inc.

944 A.2d 925

286 Conn. 390

John P. CURRY v. ALLAN S. GOODMAN, INC.

No. 18025.

Supreme Court of Connecticut.

Argued January 10, 2008.

Decided April 15, 2008.

Richard E. Hayber, Hartford, for the appellant (plaintiff).

Glenn A. Duhl, with whom was George J. Kelly, Jr., Hartford, for the appellee (defendant).

Nancy Alisberg and Charles Krich filed a brief for the office of protection and advocacy for persons with disabilities et ah, as amici curiae.

NORCOTT, KATZ, PALMER, VERTEFEUILLE and SCHALLER, Js.

KATZ, J.

The plaintiff, John P. Curry, appeals from the trial court's summary judgment rendered in favor of his former employer, the defendant, Allan S. Goodman, Inc., on the plaintiff's claims that the defendant discriminated against him because of his disability in violation of General Statutes § 46a-60 (a)(1)¹ of the Connecticut Fair Employment Practices Act (act). The plaintiff contends, inter alia, that the trial court improperly concluded that he had not met his burden of proving that he was a qualified person with a disability capable of performing the essential functions of his job with or without reasonable accommodation from the defendant. We conclude that the trial court improperly rendered summary judgment because there is a disputed issue of material fact as to whether the plaintiff was able to perform the job with reasonable accommodation and, accordingly, we reverse the trial court's judgment.

The record reveals the following relevant facts, which are, unless otherwise indicated, undisputed. The plaintiff began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff injured his back during work when lifting a case of liquor. Thereafter, in 1998 and 1999, the plaintiff underwent two surgeries for his injury. Following the second surgery, the plaintiff returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. Shortly thereafter, Kime increased the weight restriction to twenty-five pounds.

When the plaintiff returned to work, the defendant negotiated with the plaintiff's union and placed him in a night shift position, working the "split line" in the warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff's union and the defendant.

The split line duty is one of the primary warehouse responsibilities. During their ten hour shift, these workers stand along a conveyor belt and work as a team to fill empty cartons with bottles of liquor from flow racks abutting the belt. The bottles weigh only a few pounds and are stacked vertically in the flow racks at four different height levels; therefore, a split line worker must be able to pull the bottles from all four levels. Although the racks are restocked by employees on the prior shift, at times, a certain type of product may run out during the night shift. On such occasions, a night shift employee on the split line will have to retrieve a full case of that item, which may weigh more than twenty-five pounds, to restock the flow rack for that item.² If an employee's particular split line task is completed before the end of the shift, he or she may be asked to help with other miscellaneous responsibilities, such as loading trucks or driving forklifts, or to work on the "solid line."³

When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases. At that time, the company's policies with regard to work related injuries stated: "Light duty status is intended to be a temporary, transitional situation.... Employees who have been on light duty status for sixty days must have their status reevaluated to determine when and if they will be able to return to full duty status." In this light duty status, the plaintiff initially worked only a five hour shift, but gradually increased his hours to ten hours as his condition improved.

On or about October 12, 2000, the plaintiff had art altercation with the night shift supervisor, Brian O'Connor, after one of the racks ran out of a particular brand of liquor. The' events that ensued are in dispute. The plaintiff attested that the incident took place in the following manner. He marked an order form to indicate which item was "out of stock" and then asked a coworker, Art Schreiber, to retrieve a case from the warehouse for him. Before Schreiber could retrieve the case, O'Connor saw the form and asked the plaintiff: "What the fuck is this?" O'Connor then shut down the conveyor belt and demanded that the plaintiff instruct Schreiber or another worker immediately to retrieve the case for him. O'Connor then commented: "I've got handicapped people all over the place in here!"

In contrast, O'Connor attested that the events had transpired differently. He stated that, when he asked the plaintiff about the order form, the plaintiff told him that the liquor was out of stock. O'Connor then instructed the plaintiff to ask Schreiber to retrieve the item and returned to his desk. Later, O'Connor saw the plaintiff going to retrieve the item himself, at which point O'Connor stopped him and told him: "You're not going to get the case. I'm not going to have you hurt yourself more than you already are." The plaintiff then yelled, "[T]hese fucking guys aren't getting it; it's not my fucking job to tell them ... it's your fucking job."

After this incident, on or about December 26, 2000, the defendant's insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual), sent a letter to the plaintiff's physician, stating: "Unless [the plaintiff] is eventually able to stand for up to a[ten] hour shift and repetitively lift cases with maximum weight of [forty-five pounds], [the defendant] will no longer be able to continue his employment.... In your opinion, will [the plaintiff] ever be able to repetitively lift [forty-five pound] cases and will he ever be able to stand for up to a[ten] hour shift work day?" In response to this inquiry, Kime faxed back a copy of that same letter with "NO" written on the bottom, but provided no other information.

Thereafter, in a report to Liberty Mutual dated February 6, 2001, Kime wrote that the plaintiff could increase his shift to ten hours a day and likely would be able to reach "full duty work activity," including lifting forty-five pound cases repetitively. Ultimately, the plaintiff was able to work a full ten hour shift, but continued to have restrictions on his ability to lift full cases of liquor. In a letter to the defendant dated March 7, 2001, however, Kime indicated that the plaintiff had not improved as expected and that his light duty restriction — ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds — likely would be "permanent."

Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff's employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff's attorney sent a letter to one of the defendant's managers, Richard Conroy, advising him of the defendant's obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.

The record also contains the following relevant procedural history. The plaintiff thereafter filed a six count complaint, alleging disparate treatment on the basis of disability in violation of § 46a-60 (a)(1), a failure to accommodate his disability in violation of both the act and the federal Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq., and retaliation in violation of the act and the ADA. The defendant had the case removed to federal court and moved for summary judgment on all of the plaintiff's claims. The United States District Court for the District of Connecticut granted the defendant's motion for summary judgment.⁴ In response to a subsequent motion for reconsideration by the plaintiff, however, the District Court vacated its previous order with respect to the state law claims and remanded those claims to state court. The defendant then moved for summary judgment on the state law claims in state court. Instead of filing a substantive opposition, however, the plaintiff filed a "Preliminary Opposition to Defendant's Motion for Summary Judgment," contending that the defendant's motion already had been denied by the District Court and thus could not be refiled in state court. The defendant filed a reply to the plaintiff's procedural opposition and, subsequently, a motion to reclaim its motion for summary judgment. Although the defendant requested oral argument on its motion for summary judgment, the trial court neither heard argument nor responded to the plaintiff's procedural objection.

Instead, the trial court issued a memorandum of decision granting the defendant's motion for summary judgment. In so doing, it first concluded that the plaintiff was disabled within the meaning of General Statutes § 46a-51 (15).⁵ It then analyzed the...