Lopresti v. Norwalk Public Schools

Mary Lopresti v. Norwalk Public Schools

No. CV156017660S

Superior Court of Connecticut, Judicial District of Ansonia-Milford, Derby

March 1, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Theodore R. Tyma, J.

The plaintiff, Mary LoPresti, brings this action against the defendant, Norwalk Public Schools. The action arises from the plaintiff's retirement from her long-time teaching position in the school system.

On January 12, 2015, the plaintiff filed a four-count complaint and alleges the following facts. First, the defendant discriminated against her in violation of General Statutes § 46a-60(a)(1)^[1] of the Connecticut Fair Employment Practices Act (CFEPA), among other things. Second, she was wrongfully discharged under the common law in violation of the public policy of Connecticut in that the defendant failed to provide her with a reasonably safe place to work, and a workplace free from hazards likely to cause serious physical harm, as embodied in General Statutes § § 31-49 and 31-370. Third, the defendant is liable to her for intentional infliction of emotional distress, and fourth, the defendant's actions toward her violate § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Rehabilitation Act).

The defendant moves for summary judgment on all four counts for the following reasons: (1) There is no genuine issue of material fact that the plaintiff's discrimination claim under state law is barred by the applicable statute of limitations; (2) the plaintiff is precluded from maintaining a common-law wrongful discharge claim because she has a statutory remedy, and, even if she could maintain the claim there is no genuine issue of material fact that the plaintiff was not discharged from her employment for refusing to work in an objectively unsafe work environment; (3) there is no issue of material fact that the defendant's conduct does not meet the legal elements constituting an action for intentional infliction of emotional distress; and (4) there exists no genuine issue of material fact that the plaintiff has failed to establish a prima facie case of discrimination under federal law. In support of its motion, the defendant submits excerpted pages from the plaintiff's deposition an affidavit of Ivette Ellis, principal of the school since 2008, along with related documents; an affidavit of Robert Dylewski, interim human relations officer for the defendant along with the applicable collective bargaining agreement; and other miscellaneous documents.

The plaintiff filed a memorandum in opposition to the summary judgment motion, along with supporting documentation. Therein, the plaintiff claims that she exhausted her administrative remedies by filing her complaint with the state Commission on Human Rights and Opportunities (commission), and, further, has established a prima facie case of discrimination as there is evidence that " Ellis . . . deliberately disregarded the plaintiff's accommodation requirements despite her specific knowledge that the plaintiff had a known disability and an accommodation for that disability." The plaintiff contends that her claim that the defendant failed to maintain a reasonably safe workplace as mandated by § § 31-49 and 31-370 is legally sufficient, and there remains material factual issues to be resolved on that claim as to whether " the building is highly contaminated by mold, " causing or aggravating the plaintiff's physical disability resulting in her retirement. The plaintiff further asserts that there are genuine issues of material fact to be resolved at trial as to the legal elements necessary to prove her claim for intentional infliction of emotional distress. Finally, the plaintiff claims that she has established a prima case of discrimination in support of her claim that the defendant's actions violate the Rehabilitation Act. The plaintiff has submitted copies of her complaint filed with the commission; excerpted pages from her deposition; a copy of her resume; excerpted pages from the deposition of Dr. John Santilli, the plaintiff's allergist, along with his report dated October 22, 2015; and a copy of an investigation report concerning the alleged poor air quality at the school.

The following facts in the record are relevant to a determination of the present motion. The plaintiff was employed by the defendant as a music teacher beginning in 1998. She was assigned to Silvermine Elementary School for the 2003-2004 school year, and remained at the school until her retirement on February 28, 2013, due to a physical disability. The defendant assigned the plaintiff her own classroom at Silvermine to teach music from the time she began teaching at the school through the 2011-2012 school year. In September 2008, the plaintiff went to Dr. Santilli complaining of certain medical conditions, including vocal, respiratory, and sinus problems, which he believed were related to mold exposure at Silvermine. In a letter to the defendant dated October 6, 2008, Dr. Santilli recommended that the plaintiff " have a HEPA air cleaner in her classroom, air conditioning and a window for ventilation." Dr. Joshi made the same recommendation to the defendant in a letter dated September 7, 2010.

Prior to those letters, the plaintiff had been assigned for some years to an interior classroom, which had no exterior window. The defendant provided the plaintiff with a classroom with the requested accommodations during the school years 2009-2012. For example, during the spring term of 2012, the plaintiff was assigned to a classroom that had an exterior window, an air conditioner, and an air filter. Dr. Santilli treated the plaintiff for her alleged mold-related health conditions from 2008 through the latter part of 2012. During the plaintiff's course of treatment in 2008, Dr. Santilli recommended that the plaintiff cease employment with the defendant, but the plaintiff did not accept the recommendation at the time because " she was too devoted to her children and students."

Ellis states she was informed in the spring of 2012 that due to an increase in the student enrollment the following school year, every teacher would not be guaranteed their own classroom. Ellis decided that the music program was the " best option for traveling from classroom to classroom, " and informed the plaintiff in the spring of 2012 that she would use a cart for her music materials and resources during the 2012-2013 term and required her to travel to various classrooms to teach. Consequently, Ellis did not provide the plaintiff with a designated classroom to teach music to students. Additionally, a storage area was converted into office space for the plaintiff's use. That area lacked an exterior window, air conditioner, and air filter. The plaintiff cooperated with Ellis concerning her teaching assignment for the 2012-2013 term because she " did not want to make waves, " and " was concerned with finishing the school year." The plaintiff testified in her deposition, however, that after being informed that she was assigned to a travel cart to teach music, she spoke at some undefined time with Ellis about being reasonably accommodated for her mold-related conditions. The plaintiff taught music to her students using the cart from the beginning of the school year through November 29, 2012. On November 30, 2012, the plaintiff used her second sick day that school year, and never actively returned to her employment with the defendant.

On December 3, 2012, the plaintiff visited Dr. Santilli to apply for a disability retirement from the Teachers' Retirement Bureau (TRB). Dr. Santilli assisted her in completing her application, and the plaintiff filed it with the TRB. Dr. Santilli recommended that the plaintiff remain out of work as of December 11, 2012, due to conditions related to mold exposure. On December 13, 2012, the plaintiff sent an e-mail to Ellis informing her that she was suffering from " serious medical conditions, " and it was " doctor's orders" that she stay out of " work until further notice." On February 1, 2013, Ellis sent an e-mail to the plaintiff stating that Ellis learned for the first time that day that the plaintiff was in the process of retiring due to a disability. The plaintiff sent a reply e-mail on February 3, 2013, confirming her retirement plans. In a letter dated February 4, 2013, the plaintiff informed the defendant that she was retiring from her position, " effective February 28, 2013, " due to a physical disability, and requested that she be awarded discretionary continued health insurance under Article XXX1c of the operative Comprehensive Group Contract between the board and the Norwalk Federation of Teachers.

The TRB acted favorably on the plaintiff's application. At its regularly scheduled meeting on February 19, 2013, the Norwalk Board of Education (board) approved the plaintiff's application for an early retirement based on a physical disability, effective February 28, 2013. Additionally, at their regularly scheduled meeting on April 2, 2013, the board denied to provide the plaintiff with continued health insurance coverage, which was effective March 31, 2013. The board also provided the plaintiff with information concerning the possibility of obtaining continued benefits under federal law. The plaintiff remained out of work from her sick day on November 30, 2012, to her effective retirement date. The present litigation ensued. Additional facts will be discussed as necessary.

Before addressing the issues raised in the defendant's motion the court sets forth the law governing summary judgment. " The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits...