Danner v. Comm'n on Human Rights

208 Conn.App. 234

264 A.3d 586

Stephanie DANNER

v.COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

AC 44194

Appellate Court of Connecticut.

Argued March 2, 2021

Officially released October 12, 2021

Martin J. Regimbal, pro hac vice, with whom was Elizabeth F. Flynn, for the appellant (defendant Atos IT Solutions and Services, Inc.).

Zachary T. Gain, for the appellee (plaintiff).

Michael E. Roberts, for the appellee (named defendant).

William Tong, attorney general, Clare E. Kindall, solicitor general, and Colleen B. Valentine and Matthew F. Larock, assistant attorneys general, filed a brief for the state of Connecticut as amicus curiae.

Alvord, Alexander and Vertefeuille, Js.

ALVORD, J.

This appeal arises out of an action by the plaintiff, Stephanie Danner, in which a human rights referee (referee) from the Office of Public Hearings (office) of the defendant Commission on Human Rights and Opportunities (commission) rendered summary judgment in favor of the defendant Atos IT Solutions and Services, Inc. (Atos). Thereafter, the plaintiff and the commission appealed to the Superior Court,¹ which consolidated the appeals. The court, following oral argument, sustained the appeal and remanded the matter to the office for trial. Atos appeals from the judgment of the Superior Court sustaining the appeal and remanding the matter to the office for trial. On appeal, Atos claims that the Superior Court erred in considering the plaintiff's affidavit of illegal discriminatory practice as evidence in opposition to Atos' motion for summary judgment and in relying on the averments contained in the affidavit to determine that genuine issues of material fact existed. Atos also claims that the Superior Court erred in failing to afford deference to the referee's decision.² We affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to this appeal. On December 5, 2016, the plaintiff filed an affidavit of illegal discriminatory practice with the commission. In her affidavit, the plaintiff averred: "[Atos] has an office located at 7 McKee Place, Cheshire, Connecticut 06410.... [Atos] employs [fifteen] or more individuals.... [Atos] employed [the plaintiff].... [Atos] hired [the plaintiff] in May, 2001.... [The plaintiff's] original job position was technical services manager.... On or about August 8, 2016, [Atos] transferred [the plaintiff] to help desk agent. ... [Atos] employs David Hamilton.... Hamilton is a supervisory employee.... Hamilton supervised [the plaintiff].... [The plaintiff] has a disability.... Specifically, [the plaintiff] suffers from bipolar disorder and anxiety disorder.... [Atos] was aware of the mental disability....[The plaintiff] had workplace accommodations for her disability.... The workplace accommodation was working from home.... The workplace accommodation was finite leaves of absences (continuous and intermittent).... In June, 2016, [the plaintiff] took a continuous leave of absence. The leave of absence went from June 14, 2016 through August 19, 2016.... The leave of absence was disability related.... The 2016 leave of absence was ... protected [by the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. (2012) ]. ... Following her return from the FMLA protected 2016 leave of absence, [Atos] asked [the plaintiff] to submit documentation in support of her ongoing work from home accommodation.... [The plaintiff] complied with [Atos'] request and supplied documentation from her physician.... On October 17, 2016, [Atos] terminated [the plaintiff's] employment.... [Atos] told [the plaintiff] that the termination was due to a reorganization and that her ‘job was no longer available’.... In October, 2016, [Atos] employed about [forty] help desk employees.... [The plaintiff] is unaware of any other help desk employee terminated at the time [the plaintiff] was terminated.... There were two new help desk employees training for the position prior to [Atos] terminating [the plaintiff's] employment.... [Atos'] website had the help desk agent II job posted as being open in Cheshire, Connecticut at around the same time that it terminated [the plaintiff's] employment.... [The plaintiff] can perform the essential functions of the job with or without a reasonable accommodation.... Any and all excuses to be offered by [Atos] to explain the termination decision would be a pretext to mask discrimination and/or retaliation.... [The plaintiff] charges [Atos] with disability discrimination, failure to accommodate and retaliation."

On October 3, 2017, the matter was sent to the office for a public hearing through the early legal intervention program. On December 26, 2018, Atos filed a motion for summary judgment, in which it argued that the plaintiff could not establish a prima facie case of disability discrimination. Specifically, Atos argued that the plaintiff was not qualified to perform the functions of her position and that her employment was not terminated because of her disability. It further argued that, even if she could establish a prima facie case of discrimination, it had articulated a legitimate, nondiscriminatory reason for terminating her employment and that she could not demonstrate that such reason was pretextual. With respect to the plaintiff's claim of failure to provide reasonable accommodations for her disability, Atos argued that the plaintiff's only request, to work from home, was not a reasonable accommodation because being present in the office was an essential function that Atos was not required to waive. With respect to the plaintiff's claim of retaliation, Atos argued that there was no evidence indicating a causal connection between her requests for leave and to work from home and the termination of her employment.

In support of its motion, Atos submitted affidavits of Laurie Onderick, who was employed by Atos as a human resource specialist responsible for leave administration,³ and Hamilton, who was employed by Atos as service desk manager and was the plaintiff's manager throughout her employment, along with evidentiary exhibits attached to both affidavits. In his affidavit, Hamilton averred, inter alia, the following: "I managed [the plaintiff] for her entire employment with Atos beginning in 2001, when she became an employee of Atos as a service desk manager level I. In this position, she supervised service desk employees.... Due to the loss of numerous Atos clients and due to the fact that many of Atos' IT help desk positions, including those who reported to [the plaintiff], were being offshored to the Philippines in a cost saving effort, [the plaintiff's] managerial position was eliminated in August, 2016, as her supervisory role was no longer necessary.... The offshoring efforts began approximately seven years ago.... In order to avoid terminating her altogether, I reassigned [the plaintiff] as a service desk technician tasked with providing computer support services to Cooper University Health Center (‘Cooper Hospital’), an Atos client.... In this role [the plaintiff] was expected to answer the helpline telephones, receive, analyze, and resolve client issues, and escalate issues when necessary. The problem solving aspects of her position required her to learn new things every day and to retain that knowledge.... I assumed the duty of supervision over any remaining U.S. based service desk technicians working out of the Cheshire, Connecticut office.... While [the plaintiff] was on FMLA leave in the summer of 2016, she and I communicated via instant messages. It was then that she informed me that her alleged bipolar and anxiety disorders had severely impacted her short term memory. Specifically, one of her messages to me read, ‘Honestly I don't know what you guys are going to do with me. I have nobody to manage and I'd do a shitty job if I did.’ She further told me that she ‘was trying to cut down on the Klonopin but it's at a why bother now. [Her] short term memory is really bad and [it's] permanent.’ Exhibit I to this affidavit is a true and accurate copy of my text conversation with [the plaintiff]....

"As a service desk technician on the Cooper Hospital account, it was critical that [the plaintiff] physically present to Atos' Cheshire, Connecticut office where the account was managed. Onsite attendance was required as problems had to be quickly resolved among the technicians and the managers to minimize impact to the client's services. Managers, like myself, had to be able to immediately and directly communicate with the service desk technicians assigned to us in case of failures to critical hospital systems. Delays in resolving such IT issues can literally have life or death implications. ... For example, Atos was responsible for the computers located [in] Cooper Hospital's operating rooms. If these computers went down during surgery or for an extended period of time, the results could be dire. The urgent and fast pace[d] nature of the services the service desk technicians had to provide in conjunction with the managers required service desk technicians to physically be in the office. Thus, it was an essential job function for service desk technicians assigned to the Cooper Hospital account to work out of the Cheshire office as opposed to remotely. All of the U.S. based service desk technicians assigned to the account did so. ... Similarly, all of the Philippines based service desk technicians assigned to the Cooper Hospital account also worked together out of a local office as opposed to individuals working remotely from home.

For the same reasons, none of these foreign based service desk technicians assigned to the Cooper Hospital [account] worked from home. ... However, after September 14, 2016, [the plaintiff] only physically appeared for less than a single shift at the Cheshire office. ...

"On October 9, 2016, I was informed that [the plaintiff's] physician had ordered that she work from home on a permanent basis. ... ...