Summerlin v. Almost Family, Inc.

CONNIE SUE SUMMERLIN, Plaintiff, v. ALMOST FAMILY, INC., Defendant.

3:12-cv-00007-WWE

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Dated: March 17, 2014

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARYJUDGMENT

Plaintiff Connie Sue Summerlin alleges violation of the Family and Medical Leave Act, Title 29 U.S.C. § 2601, et seq.; and the Connecticut Workers' Compensation Act, Connecticut General Statutes § 31-290a(a) against defendant Almost Family, Inc. Specifically, plaintiff alleges that defendant unlawfully retaliated against her by refusing to re-employ her after she recovered from a work-related-injury. Plaintiff seeks declaratory, injunctive and equitable relief, damages, costs and attorneys' fees.

Defendant has moved for summary judgment as to both counts. For the following reasons, defendant's motion will be denied.

BACKGROUND

Plaintiff is a registered nurse, licensed by the state of Connecticut. She received her nursing degree in 1977 and has over thirty years of professional nursing experience.

Defendant hired plaintiff in October of 2006 as a per diem nurse. In 2009, plaintiff accepted a full-time position with defendant as a registered nurse behavioral health case manager. Plaintiff was responsible for, among other things, coordinating client care, completing documentation and recertifications, coordinating admissions to home care services, discharges,and transfers. She was assigned to manage clients located in Danbury, Brookfield, New Fairfield, and Newtown, Connecticut.

In or about February of 2010, plaintiff fell on the ice outside of a patient's home, injuring her hip. In April of 2010, plaintiff aggravated her injury during a client-visit while picking up a leaded lockbox used to store medications. On or about April 8, 2010, plaintiff took leave from work and sought medical advice.

On April 16, 2010, defendant sent plaintiff notice regarding the designation of her leave under the Family and Medical Leave Act. Plaintiff's also received workers' compensation benefits from April 8, 2010, through March 8, 2011. Plaintiff was not able to return to work until February of 2011, when she was released to work on a light-duty basis. Plaintiff was released to return to work without restriction on March 8, 2011.

Upon being released to return to work, plaintiff contacted the director of defendant's Danbury office to inform defendant that she was fit to work, at first on a light duty basis, and shortly thereafter on a non-restricted basis.

Plaintiff was rehired to work for defendant - as a per diem nurse - on or about March 26, 2011. However, despite applying for five different full-time nursing positions with defendant between February 14, 2011, and December 5, 2011, she was not rehired as a full-time employee.

DISCUSSION

A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923F.2d 979, 982 (2d Cir.), cert. denied. 502 U.S. 849 (1991).

The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

If a nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, then summary judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party submits evidence which is "merely colorable," legally sufficient opposition to the motion for summary judgment is not met. Anderson, 477 U.S. at 249.

FMLA Retaliation

To establish a prima facia case of FMLA retaliation, a plaintiff must establish that (1) she exercised rights protected under the FMLA, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent. Donnelly v. Greenburgh Cent-School Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012). Here, only qualification and retaliatory intent are in dispute.

Defendant argues that plaintiff was not qualified for the full-time positions for which she applied and that plaintiff failed to produce any evidence regarding the necessary qualifications for the positions.

Defendant argues that plaintiff "has not set forth any evidence that she was qualified for afull-time behavioral health case manager position with [defendant]" - one of the positions for which she applied - but plaintiff held that same position with defendant prior to taking her medical leave of absence. Defendant also contends that plaintiff "would not have qualified for a full-time behavioral health case manager position because she had indicated that she had no interest in seeing medical patients or case-managing medical patients," but plaintiff denies expressing aversion to medical work and applied for positions that required her to see medical patients. Finally, defendant argues that plaintiff's unwillingness to be a team-player and refusal to take client visits because of patient difficulty or travel distance created resentment among the nursing staff and created scheduling difficulties. Defendant contends that these "undisputed facts" further establish that plaintiff was not qualified to hold a full-time behavioral health case manager position, but plaintiff disputes defendant's assertions.

"Ordinarily, a plaintiff-employee challenging an adverse employment action as discriminatory or retaliatory need not do much to establish his qualification for the position he holds or seeks. As we have held in the related context of employment discrimination, the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basic skills necessary for performance of the job." Donnelly, 691 F.3d at 147. Plaintiff made this showing. She held the necessary educational and licensing credentials to serve as a nurse in Connecticut and worked as a nurse for over 30 years prior to applying for the jobs at issue. Indeed, plaintiff applied for the same position she previously held with defendant. The record indicates nothing about her performance suggesting that she was unsuitable for re-employment as a full-time nurse. Moreover, defendant's hiring manager admitted at deposition that plaintiff met the writtenqualifications for at least one of the positions for which she applied.

Defendant next argues that its refusal to re-hire plaintiff did not occur under circumstances giving rise to an inference of retaliatory intent.

Whether the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent depends on whether there is a basis for a jury to conclude that a causal connection exists between plaintiff's protected activity and the adverse action taken by the employer. One basis for such a conclusion is close temporal proximity between the protected activity and the adverse action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (finding retaliatory intent inferred from termination within two months of sexual harassment complaint and holding that a strong temporal connection between plaintiff's conduct and other circumstantial evidence is sufficient to raise an issue of fact with respect to pretext) (abrogated in part on other grounds by Nat'l R.R. Passenger Corp. V. Morgan, 536 U.S. 101 (2002)).

Defendant cites Lijeunesse v. Great Atlantic & Pacific Tea, 160 F. Supp. 2d 324, 334 (D. Conn. 2001), for the proposition that temporal proximity, alone, is insufficient to establish a prima facie case of retaliation. However, Lijeunesse, in turn, cites to Gallo v. Eaton Corp, 122 F. Supp. 2d 293, 303 (D. Conn. 2000), which states that "[m]ere temporal proximity alone will not necessarily satisfy [the causal connection] requirement." Indeed, Gallo instructs that proof of causal connection may be shown "indirectly by showing that the protected activity was followed closely by the discriminatory treatment." Id. Temporal proximity of events, alone, can give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation. El Saved v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010).

Here, the Court agrees that the time plaintiff was on leave as a result of her injury should not be included when calculating temporal proximity because, while on leave, plaintiff was beyond the retaliatory reach of defendant. In the failure-to-hire context, an adverse action taken at the first opportunity can satisfy the causal connection element of the prima facie case. See Price v. Thompson, 380 F.3d 209, 213 (4^th Cir...