Free Order on Motion for Summary Judgment - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT PATRICIA ANN MEDVEY, Plaintiff, : : : v. : : OXFORD HEALTH PLANS, INC. and : METROPOLITAN LIFE INSURANCE : COMPANY, : Defendants. :

NO. 3:01CV1977 (EBB)

RULING ON DEFENDANT OXFORD HEALTH PLAN, INC.'S AND DEFENDANT METROPOLITAN LIFE INSURANCE'S MOTION FOR SUMMARY JUDGMENT Plaintiff Patricia Medvey initially commenced an eleven-count action in the Superior Court of the State of Connecticut, Judicial District of Fairfield at Bridgeport, which action was removed to this Court on October 19, 2001. (Doc. No. 1). In addition to

defendants Oxford Health Plans, Inc. ["Oxford"] and Metropolitan Life Insurance Company ["MetLife"], the Complaint originally named ten individual defendants who were employees of the corporate defendants, all of whom were dismissed on May 7, 2002 by Senior U.S. District Judge Warren W. Eginton ["May 2002 Ruling"]. No. 14).1 (Doc.

Plaintiff then filed her Amended Complaint on May 23,

2002, alleging seven counts against the remaining defendants Oxford and MetLife: violation of the Employee Retirement Income Security Act of 1974 ["ERISA"], 29 U.S.C. § 1001 et seq., 29 U.S.C. § 1132(a)(1)(B), and 29 U.S.C. § 1132(c) (Counts One & Two); civil conspiracy in violation of the laws of the State of Connecticut

The May 2002 Ruling also dismissed five state common law counts. infra.

1

See note 8

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(Count Three); disability discrimination under the Connecticut Fair Employment Practices Act ["CFEPA"], CONN . GEN . STAT . § 46a-51 et seq. (Count Four); failure to provide reasonable accommodation under the Americans with Disabilities Act ["ADA"], 42 U.S.C. §§ 12101-17 (Count Five); violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count Six); and retaliation in violation of state and federal law (Count Seven). (Doc. No. 15).

Defendants subsequently filed their Motion to Dismiss Counts One through Three of the Amended Complaint on June 18, 2002 (Docs. No. 17-18), which was granted in part with respect to Counts One and Two on February 6, 2003 by Judge Eginton, dismissing

plaintiff's ERISA claims on the ground that plaintiff had failed to exhaust her administrative remedies, but denied with respect to Count Three on civil conspiracy. ["February 2003 Ruling"](Doc. No. 24). On April 3, 2003, defendants filed their Answers and

affirmative defenses to plaintiff's Amended Complaint. 26-27).

(Docs. No.

On September 18, 2003, defendants filed their Motion to Dismiss Count Three of the Amended Complaint. (Docs. No. 31-32).

On February 11, 2004, this case was transferred to this Senior United States District Judge (Doc. No. 49) and on March 18, 2004, this Court granted defendant's Motion to Dismiss Count Three on the ground that "[r]egardless of whether plaintiff's conspiracy claim is meant to be a civil conspiracy claim pursuant to the laws of

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Connecticut or a § 1985 claim," neither claim can survive as this claim is preempted by other statutory remedies asserted by

plaintiff. ["March 2004 Ruling"](Doc. No. 51). On September 15, 2004, defendant Oxford filed a Motion for Summary Judgment as to the remaining four counts (Counts Four through Seven), and its brief and Local Rule 56(a)1 Statement in Support. (Docs. No. 65-68).2 Plaintiff filed her brief in

opposition and Local Rule 56(a)2 Statement of Material Facts on November 24 and December 2, 2004 (Docs. No. 80, 83, 83-1),3 as to which defendant Oxford filed its reply on March 16, 2005. No. 91). Also on September 15, 2004, defendant MetLife filed its Motion for Summary Judgment as to the remaining counts, and brief and
Attached to Doc. No. 67 are the following seventeen exhibits: excerpts from the deposition of Patricia Medvey, 3/18/04 ["Doc. No. 67, Medvey Depo. I"] (Exh. A); excerpts from the deposition of Patricia Medvey, 5/13/04 ["Doc. No. 67, Medvey Depo. II"] (Exh. B); excerpts from the deposition of Patricia Medvey, 5/18/04 ["Doc. No. 67, Medvey Depo. III"] (Exh. C); excerpts from the deposition of Patricia Medvey, 5/28/04 ["Doc. No. 67, Medvey Depo. IV"] (Exh. D); excerpts from the deposition of Patricia Medvey, 6/30/04 ["Doc. No. 67, Medvey Depo. V"] (Exh. E); copies of thirty-two exhibits marked by defendant at the Medvey Depositions ["Doc. No. 67, Depo. Exhs."] 1, 4, 5, 6, 7, 12, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 37, 38, 39, 46, 48, 51, 52, 53, 57, 58 (Exh. F); excerpts from the deposition of Amy Arnheim, 5/19/04 ["Arnheim Depo."] (Exh. G); affidavit of Pat Orsaia, sworn to August 27, 2004 ["Orsaia Aff't"] (Exh. H); affidavit of Kathy Marlor, sworn to August 5, 2004 ["Marlor Aff't"] (Exh. I) and copy of correspondence, dated July 5, and September 7, 2001 (Exhs. I-A - I-B); affidavit of Nancy Joy Wilsnack, sworn to July 27, 2004 ["Wilsnack Aff't"] (Exh. J); State of Connecticut Commission on Human Rights and Opportunities Complaint, dated March 13, 2000 (Exh. K); copy of affidavit of Jeanne Rudell, sworn to August 30, 2004 ["Rudell Aff't"] (Exh. L); and copies of case law (Exhs. M-Q).
3 Attached to plaintiff's brief in opposition is her addendum of exhibits (Doc. No. 83-1) with the following nine exhibits: additional excerpts from Medvey Depos. I-V (Exhs. A-E); additional copies of defendant's Depo. Exhs. 1, 11, 12, 13, 15, 16, 18, 19, 20, 24, 26, 27, 28, 29, 30, 37, 39, 42, 48, 59, 60 (Exh. F); copies of plaintiff's Depo. Exhs. 3, 4, 18 (Exh. G); copy of the Orsaia Aff't (Exh. H); and another copy of the Rudell Aff't (Exh. I). 2

(Doc.

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Local Rule 56(a)1 Statement in Support.

(Docs. No. 69-72).4

Plaintiff filed her brief in opposition to defendant MetLife's Motion for Summary Judgment and her Local Rule 56(a)2 Statement on November 24, 2004. (Docs. No. 79 & 81).5 Thereafter, defendant (Doc. No. 89).

MetLife filed its reply brief on March 14, 2005.

For the reasons stated below, defendant Oxford's Motion for Summary Judgment (Doc. No. 65) is granted and defendant MetLife's Motion for Summary Judgment (Doc. No. 69) is granted. I. FACTUAL BACKGROUND A. DEFENDANT OXFORD The following factual summary is based on defendant Oxford's Local Rule 56(a)1 Statement of Material Facts, filed September 15, 2004 ["Defendant Oxford's Statement"] and accompanying affidavits, depositions and exhibits, and Plaintiff's Local Rule 56(a)2

Statement of Material Facts, filed November 24, 2004 ["Plaintiff's Statement"], and documents cited therein. Consequently, such

Attached to Doc. No. 71 are the following sixteen exhibits: additional excerpts from the deposition of Patricia Medvey, 3/18/04 ["Doc. No. 71, Medvey Depo. I"](Exh. A); additional excerpts from the deposition of Patricia Medvey, 5/13/04 ["Doc. No. 71, Medvey Depo. II"](Exh. B); additional excerpts from the deposition of Patricia Medvey, 5/18/04 ["Doc. No. 71, Medvey Depo. III"](Exh. C); additional excerpts from the deposition of Patricia Medvey, 5/28/04 ["Doc. No. 71, Medvey Depo. IV"] (Exh. D); additional excerpts from the deposition of Patricia Medvey, 6/30/04(Exh. E); copies of exhibits marked by defendant at the Medvey depositions, ["Doc. No. 71, Depo. Exhs."] 26, 27, 29, 37, 38, 39, 46, 51, 52, 57 (Exh. F); original of the Rudell Aff't (Exh. G); and copies of case law (Exhs. H-I). Attached to plaintiff's brief in opposition (separately collated) are the following five exhibits: copy of additional excerpts from Medvey Depo. IV (Exh. D); additional copies of defendant's deposition exhibits 18, 28, 37 & 42 (Exh. F); another copy of the Orsaia Aff't (Exh. H); and another copy of the Rudell Aff't (Exh. I).
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factual summary does not represent factual findings of the Court. Plaintiff was involved in a car accident in June 1987, which she claims resulted in her alleged disability, a brain dysfunction frontal lobe injury and visual disturbance. Statement ¶¶ 1, 14; Plaintiff's Statement (Defendant Oxford's

¶¶ 1, 14; Doc. No. 67,

Medvey Depo. III at 55). Between the time of the accident and October 1997, plaintiff worked five part-time jobs. (Defendant Oxford's Statement ¶ 2; Plaintiff's Statement Medvey Depo. III at 58-60). Oxford hired plaintiff on October 27, 1997 as a Dedicated Service Manager ["DSM"] to receive telephone calls from Oxford members for issue resolution. (Defendant Oxford's Statement ¶¶ 4¶ 2; Doc. No. 67,

5; Plaintiff's Statement ¶¶ 4-5; Doc. No. 67, Medvey Depo. I at 36; Doc. No. 67, Medvey Depo. II at 46-47). The DSM position required

the use of multiple, scrolling computer screens to answer calls that came into a telephone call holding tank called a "cue" or "queue." (Defendant Oxford's Statement ¶¶ 6-7; Plaintiff's

Statement ¶¶ 6-7; Doc. No. 67, Medvey Depo. I at 36; Doc. No. 67, Medvey Depo. II at 67). In her first assignment, plaintiff (Defendant

performed well as a Medicare phone representative. Oxford's Statement ¶ 9; Plaintiff's Statement

¶ 9; Doc. No. 67, In January Accounts of

Medvey Depo. II at 51-53; Doc. No. 67, Depo. Exh. 15). 1998, plaintiff in was assigned section to she the Medicare the

Group

section,

which

exceeded

standards

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productivity. Statement

(Defendant Oxford's Statement ¶¶ 10-11; Plaintiff's

¶¶ 10-11; Doc. No. 67, Medvey Depo. I at 36-39; Doc. No.

67, Depo. Exh. 16 at 2). On May 1, 1998, plaintiff became eligible for alimony from her ex-husband, Robert Medvey, pursuant to their divorce. Oxford's Statement ¶ 12; Plaintiff's Statement (Defendant

¶ 12; Doc. No. 67, Days

Medvey Depo. III at 130-31; Doc. No. 67, Depo. Exh. 58 at 2).

later, on May 6, 1998, Oxford received a note from plaintiff's ophthalmologist, Dr. Rabinowitz, which stated that "the use of multi-screens at work at fast pace is not appropriate for Pat [Medvey]." Statement (Defendant Oxford's Statement ¶ 13; Plaintiff's

¶ 13; Doc. No. 67, Medvey Depo. IV at 44-45; Doc. No. Plaintiff's supervisors, Laurie Willett and

67, Depo. Exh. 20).

Mike Trumbley, told her that she was doing a good job and she should pace herself.6 (Defendant Oxford's Statement ¶ 17;

Plaintiff's Statement

¶ 17; Doc. No. 67, Medvey Depo. I at 40; That same month,

Doc. No. 67, Medvey Depo. II at 30, 71).

defendant Oxford assigned plaintiff to Oxford's Correspondence Initiative to accommodate her alleged disability, where plaintiff remained until August 1998, when the Correspondence Initiative was abandoned due to downsizing resulting from defendant Oxford's financial difficulties. (Defendant Oxford's Statement ¶¶ 18-21;

6 Plaintiff regarded both Laurie Willett and Mike Trumbley as "advocates" who tried to help her. (Defendant Oxford's Statement ¶ 35; Plaintiff's Statement ¶ 35; Doc. No. 67, Medvey Depo. II at 57-58, 78-81; Doc. No. 67, Medvey Depo. IV at 20-21).

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Plaintiff's Statement ¶¶ 18-21; Doc. No. 67, Medvey Depo. I at 4042; Doc. No. 67, Medvey Depo. II at 57-58, 70, 72; Doc. No. 67, Medvey Depo. IV at 50-51; Orsaia Aff't ¶¶ 7-8).7 Plaintiff then

returned to the DSM position with a smaller cue in the Medicare Group Accounts section. (Defendant Oxford's Statement ¶ 22;

Plaintiff's Statement ¶ 22; Doc. No. 83 at 5; Doc. No. 66 at 2; Doc. No. 67, Medvey Depo. III at 159-60). On August 25, 1998, plaintiff sent an e-mail reminding her supervisor of Dr. Rabinowitz's note and that laboring under the essential functions of her position contravened his advice.

(Defendant Oxford's Statement ¶ 23; Plaintiff's Statement ¶ 23; Doc. No. 67, Depo. Exh. 18; see Doc. No. 67, Medvey Depo. II at 67). Shortly thereafter, the Medicare Group Accounts department

moved to New Hampshire and, instead of opting for severance, plaintiff remained with Oxford, applying for a position as a Dedicated Group Service Associate ["DGSA"] on September 17, 1998. (Defendant Oxford's Statement ¶¶ 25-26, 28; Plaintiff's Statement ¶¶ 25-26, 28; Doc. No. 67, Medvey Depo. II at 69; Doc. No. 67, Medvey Depo. III at 159-160; Doc. No. 67, Depo. Exh. 19).

Plaintiff began work as a DGSA in October 1998 and was evaluated as "Fully Performing Requirements" as a DGSA on March 10, 1999.

Oxford was having financial difficulties that resulted in reductions in force, limited hiring and hiring freezes that began around the time plaintiff was hired and continued throughout her employment at Oxford. (Defendant Oxford's Statement ¶¶ 20-21; Plaintiff's Statement ¶¶ 20-21; Doc. No. 67, Medvey Depo. IV at 50-51; Orsaia Aff't ¶¶ 9, 11; Marlor Aff't ¶¶ 7-8).

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(Defendant Oxford's Statement ¶¶ 31-32; Plaintiff's Statement ¶¶ 31-32; Doc. No. 67, Medvey Depo. II at 78-81; Doc. No. 67, Depo. Exh. 24 at 2). On May 19, 1999, plaintiff applied for, and was granted, a medical leave of absence from May 22 to June 13, 1999. (Defendant

Oxford's Statement ¶ 38; Plaintiff's Statement ¶ 38; Doc. No. 67, Medvey Depo. II at 83-84; Doc. No. 67, Depo. Exhs. 26, 29). Plaintiff's psychiatrist, Dr. Harry Brown, provided a note for the medical leave, stating that the reason for the leave of absence was "[d]ifficulty concentrat[ing] and organization work related

demands. Eye strain, dizziness, and nausea, resulting in temporary decreased performance." (Defendant Oxford's Statement ¶ 39;

Plaintiff's Statement ¶ 39; Doc. No. 67, Medvey Depo. II at 84-85; Doc. No. 67, Depo. Exh. 27). While she was on medical leave,

plaintiff moved her residence from Stratford to Greenville Hunt. (Defendant Oxford's Statement ¶ 40; Plaintiff's Statement ¶ 40; Doc. No. 67, Medvey Depo. III at 84). Plaintiff's leave was later extended from June 14 to June 27, 1999 and she returned to work on June 28, with a note from Dr. Brown advising that she have limited exposure to computer work. (Defendant Oxford's Statement ¶¶ 41, 43-44; Plaintiff's Statement ¶¶ 41, 43-44; Doc. No. 67, Depo. Exhs. 28, 30-31; Doc. No. 67, Medvey Depo. II at 88-93). Dr. Brown in his June 1 This restriction was not mentioned by report or at any time previously.

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(Defendant Oxford's Statement ¶ 45; Plaintiff's Statement ¶ 45; Doc. No. 67, Depo. Exh. 28 at 1-5). Plaintiff was given temporary

work to perform in accordance with her doctor's request, but soon returned to medical leave in part because of her doctor's

limitations and because defendant Oxford's downsizing left no suitable alternative positions available. (Defendant Oxford's

Statement ¶¶ 47, 50-52; Plaintiff's Statement ¶¶ 47, 50-52; Orsaia Aff't ¶¶ 8-10). During that time, Pat Orsaia, an Oxford Human

Resource Manager, contacted MetLife, the claims administrator and insurer for Oxford's disability program, to discuss plaintiff's status. (Defendant Oxford's Statement ¶¶ 48-49; Plaintiff's ¶¶ 5-6).

Statement ¶¶ 48-49; Orsaia Aff't ¶ 8; Rudell Aff't

Defendant Oxford could not find an alternate position for plaintiff for several months. (Defendant Oxford's Statement ¶ 54;

Plaintiff's Statement ¶ 54; Orsaia Aff't ¶ 11). 1999, Dr. Robert Lesser, a

On August 18, wrote that

neuro-ophthalmologist,

plaintiff should "switch her job to something that does not involve as much work with a computer screen." (Defendant Oxford's

Statement ¶ 57; Plaintiff's Statement ¶ 57; Doc. No. 67, Medvey Depo. IV at 75; Doc. No. 67, Depo. Exh. 37 at 3). Plaintiff's last

annual salary at Oxford was $28,166. (Defendant Oxford's Statement ¶ 58; Plaintiff's Statement ¶ 58; Marlor Aff't ¶ 10). In July 1999, while on leave, plaintiff applied for a position with Coldwell Banker in Fairfield, Connecticut; plaintiff worked as

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a personal assistant to Mila Grieb ["Grieb"], a Coldwell Banker real estate agent. (Defendant Oxford's Statement ¶¶ 55-56;

Plaintiff's Statement ¶¶ 55-56; Doc. No. 67, Medvey Depo. III at 117-118, 129-130; Doc. No. 67, Depo. Exhs. 52, 57). On September

15, 1999, plaintiff signed a written employment agreement with Grieb for a commitment of six months at an annual salary of $25,000. (Defendant Oxford's Statement ¶¶ 59-60; Plaintiff's

Statement ¶¶ 59-60; Doc. No. 67, Medvey Depo. III at 110-112; Doc. No. 67, Depo. Exhs. 51-53). On August 31, 1999, MetLife mailed plaintiff a "Personal Profile" to complete so that MetLife could evaluate her condition. (Defendant Oxford's Statement ¶ 81; Plaintiff's Statement ¶ 81; Doc. No. 67, Medvey Depo. II at 104-05; Doc. No. 67, Depo. Exh. 38). On September 20, 1999, plaintiff signed the completed

Personal Profile in which she stated that she performed various types of housework; there had been no changes in her ability to care for her household since the onset of her disability; there had been no changes in her shopping habits; she participated in various leisure activities; and she had not changed her eating habits nor did she require assistance in preparing her meals. (Defendant Oxford's Statement ¶ 82; Plaintiff's Statement ¶ 82; Doc. No. 67, Medvey Depo. II at 108; Doc. No. 67, Depo. Exh. 39 at 1-5). MetLife closed its rehabilitation file on plaintiff on October 22, 1999. (Defendant Oxford's Statement ¶ 61; Plaintiff's Statement ¶

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61; Doc. No. 67, Depo. Exh. 46; Doc. No. 67, Medvey Depo. III at 34-36). 2001. Plaintiff did not appeal that decision until November 28,

(Defendant Oxford's Statement ¶ 62; Plaintiff's Statement ¶ Plaintiff applied for and received eighteen months ¶ that 65; they were

62; See February 2003 Ruling).8 COBRA benefits for the full

available.

(Defendant

Oxford's

Statement

Plaintiff's

Statement ¶ 65; Doc. No. 67, Medvey Depo. III at 47; Doc. No. 67, Depo. Exh. 48). Plaintiff continued working for Grieb until May 15, 2000, and then began working who for Grieb's a daughter, estate Nancy agent. Joy Wilsnack

["Wilsnack"],

was

also

real

(Defendant

Oxford's Statement ¶ 66; Plaintiff's Statement ¶ 66; Wilsnack Aff't ¶¶ 4, 8, 10). Plaintiff retained her position with Wilsnack from

May 16, 2000 through December 31, 2001 at an annual salary of $30,000, plus a bonus. ¶ (Defendant 67; work Oxford's Aff't the use Statement ¶¶ of 4, ¶ 67;

Plaintiff's Plaintiff's

Statement real estate

Wilsnack required

8-12).

computers.

(Defendant Oxford's Statement ¶ 72; Plaintiff's Statement ¶ 72; Doc. No. 67, Medvey Depo. III at 72). During this time, plaintiff

was happy in her job, particularly because she did not have to work nights or weekends. (Defendant Oxford's Statement ¶ 68; Plaintiff's

In the February 2003 Ruling, Judge Eginton ruled that plaintiff's common law claims were preempted by ERISA and dismissed such claims on grounds that plaintiff had failed to exhaust her administrative remedies. (Defendant Oxford's Statement ¶¶ 63-64; Plaintiff's Statement ¶¶ 63-64). See note 1 supra.

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Statement ¶ 68; Wilsnack Aff't ¶ 15). distress over the loss of her

She exhibited no emotional at Oxford and never

position

discussed her disability claim with Wilsnack.

(Defendant Oxford's

Statement ¶¶ 68-69; Plaintiff's Statement ¶¶ 68-69; Wilsnack Aff't ¶¶ 15-16). Also available plaintiff Plaintiff's in 2001, Oxford and interviewed her a plaintiff part-time for several which ¶ 99;

positions rejected. Statement

offered (Defendant

job,

Oxford's Aff't ¶¶

Statement 11-17).

¶

99;

Marlor

Oxford

additionally wrote plaintiff two letters inviting plaintiff for further interviews, to which plaintiff declined to respond. (Id.). From December 2001 through December 1, 2003, plaintiff worked as a real estate agent for Coldwell Banker in Westport under the management of Amy Arnheim ["Arnheim"]; plaintiff was ultimately asked to leave because of a lack of productivity. (Defendant

Oxford's Statement ¶¶ 73-74, 76; Plaintiff's Statement ¶¶ 73-74, 76; Arnheim Depo. at 4-5, 17, 46-48, 53). Grieb, Wilsnack and

Arnheim all stated that plaintiff wanted to limit the amount she earned since leaving Oxford because she did not want her alimony reduced. (Defendant Oxford's Statement ¶ 78; Plaintiff's Statement ¶ 78; Doc. No. 67, Depo. Exh. 53 at 1; Wilsnack Aff't ¶ 17; Arnheim Depo. at 78). Since leaving Oxford, plaintiff has taken several vacations, traveling to Florida, the Bahamas and Vermont. (Defendant Oxford's

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Statement ¶ 89; Plaintiff's Statement ¶ 89; Doc. No. 67, Medvey Depo. V at 23-26). Dr. Robert Lesser wrote in his report that

plaintiff's reading skills were excellent and, on plaintiff's 1997 resume, she listed golf, tennis and skiing as activities in which she participated. (Defendant Oxford's Statement ¶¶ 85, 87;

Plaintiff's Statement ¶¶ 85, 87; Doc. No. 67, Medvey Depo. II at 100-01, 106-07; Doc. No. 67, Depo. Exhs. 12, 37). Plaintiff

claims that her symptoms may also result from stressful personal situations and can often be alleviated by a small dose of Valium. (Defendant Oxford's Statement ¶¶ 91-94, 98; Plaintiff's Statement ¶¶ 91-94, 98; Doc. No. 67, Medvey Depo. II at 111; Doc. No. 67, Medvey Depo. III at 12-14, 16-17). B. DEFENDANT METLIFE As stated above, the following factual summary is based on defendant MetLife's Local Rule 56(a)1 Statement of Facts, filed September 15, 2004 ["Defendant MetLife's Statement"] and

accompanying affidavits, depositions and exhibits, and Plaintiff's Local Rule 56(a)2 Statement of Facts, filed November 24, 2004 ["Plaintiff's Statement"], and documents cited therein.

Consequently, this factual summary does not represent factual findings of the Court. As stated above, plaintiff began working

for Oxford on October 27, 1997. (Defendant MetLife's Statement ¶ 1; Plaintiff's Statement ¶ 1; Doc. No. 71, Medvey Depo. II at 46-47). During her employ, plaintiff participated in an employee welfare

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benefit plan ["Plan"], which was sponsored by Oxford and was funded by a group policy of insurance issued by MetLife to Oxford. (Defendant MetLife's Statement ¶ 2; Plaintiff's Statement ¶ 2; Rudell Aff't, ¶¶ 5-6). MetLife is the claims administrator of the (Id.).

Plan, which is governed by ERISA.

Plaintiff initiated a claim with defendant MetLife in May 1999, supporting that claim with a note from her psychiatrist, Dr. Harry Brown, which explained that plaintiff had: "[d]ifficulty concentrat[ing] and organization work related demands. Eye strain, dizziness, and nausea, resulting in temporary decreased

performance."

(Defendant MetLife's Statement ¶ 5; Plaintiff's

Statement ¶ 5; Doc. No. 71, Depo. Exh. 27; Doc. No. 71, Medvey Depo. II at 84-85). Medvey applied for and was granted short term

disability benefits under the plan from May 22, 1999 to June 13, 1999. (Doc. No. 71, Depo. Exhs. 26, 29; Doc. No. 71, Medvey Depo.

II at 83-84). In July 1999, plaintiff applied for a position with Coldwell Banker in Fairfield, Connecticut and began working as Grieb's personal assistant. (Defendant MetLife's Statement ¶¶ 6-7;

Plaintiff's Statement ¶¶ 6-7; Doc. No. 71, Depo. Exhs. 52, 57; Doc. No. 71, Medvey Depo. III at 117-118, 129-130). On August 18, 1999, Dr. Robert Lesser, a neuro-

ophthalmologist, wrote that plaintiff "should switch her job to something that does not involve as much work with a computer

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screen." (Defendant MetLife's Statement ¶ 8; Plaintiff's Statement ¶ 8; Doc. No. 71, Depo. Exh. 37 at 2; Doc. No. 71, Medvey Depo. IV at 75). On August 31, 1999, defendant mailed plaintiff a "Personal Profile" to complete so that defendant could evaluate plaintiff's condition. (Defendant MetLife's Statement ¶ 9; Plaintiff's

Statement ¶ 9; Doc. No. 71, Depo. Exh. 38; Doc. No. 71, Medvey Depo. II 104-05). On September 20, 1999, plaintiff signed the

completed Personal Profile, in which she stated that (1) she performed various types of housework, including laundry, vacuuming, dusting, and washing dishes; (2) there had been no changes in her ability to care for her household since her disability began; (3) there had been no changes in her shopping habits; (4) she

participated in the activities of exercising, walking, movies, swimming, reading, television, personal use of the computer, and bridge; and (5) she had not changed her eating habits nor did she require assistance preparing her meals. (Doc. No. 71, Depo. Exh.

39 at 2-5; Doc. No. 71; Medvey Depo. II at 108). On September 15, 1999, plaintiff signed an employment

agreement to continue serving as Grieb's personal assistant for a period of six months. (Defendant MetLife's Statement ¶ 13;

Plaintiff's Statement ¶ 13; Doc. No. 71, Depo. Exhs. 51, 52; Doc. No. 71, Medvey Depo. III at 110-112). Thereafter, defendant MetLife terminated plaintiff's benefits on October 22, 1999. (Defendant

MetLife's Statement ¶ 15; Plaintiff's Statement ¶ 15; Doc. No. 71,

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Depo. Exh. 46; Doc. No. 71, Medvey Depo. III at 34-36).

Plaintiff

did not appeal this decision until November 28, 2001, more than two years after the benefits had terminated and well beyond the sixtyday period to file an appeal. (Defendant MetLife's Statement ¶ 15; Plaintiff's Statement ¶ 15; see February 2003 Ruling). II. STANDARD OF REVIEW The standard for summary judgment is well established. The

moving party is entitled to summary judgment if it demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. FED . R. CIV . P. 56(c).

Upon motion, following adequate time for discovery, Rule 56(c) requires that summary judgment be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This showing may be made by "pleadings, depositions, answers to interrogatories, and admissions on file, together with

affidavits, if any." FED . R. CIV . P. 56(c). Rule 56(e) specifically provides that a party opposing summary judgment, however, "may not rest upon mere allegations or denials of his pleading, but must set 16

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forth specific facts showing that there is a genuine issue for trial." Id. at 256. "Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . . The evidence

of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citation omitted). "On

summary judgment the inferences to be drawn from the underlying facts contained in the [moving party's] materials must be viewed in the light most favorable to the party opposing the motion."

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970) quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). "If

reasonable minds could differ as to the import of the evidence, . . . the moving party simply cannot obtain summary judgment." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997) (citations and internal quotation marks omitted). Thus, the party

moving for summary judgment must "carry its burden of showing the absence of any genuine issue of fact." (1970). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are Adickes, 398 U.S. at 153

irrelevant or unnecessary will not be counted."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted).

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A "dispute about a material fact is `genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. III. DISCUSSION A. DEFENDANT OXFORD According to defendant Oxford, summary judgment is proper because plaintiff's alleged disability is a condition involving vertigo and anxiety brought on by the use of multiple moving computer screens (Doc. No. 66 at 13-14); plaintiff was not disabled within the meaning of the ADA or the Rehabilitation Act because she was not substantially limited in one or more of her major life activities (id. at 14-19); plaintiff was not a qualified individual with a disability because she could not perform the essential functions of the job with or without reasonable accommodation (id. at 19-21); defendant did what was possible, in the face of its financial difficulties, to accommodate plaintiff's alleged

disability (id. at 21-22); plaintiff did not suffer an adverse employment action (id. at 22); defendant did not discharge

plaintiff because of any disability and plaintiff did not suffer from a chronic handicap, infirmity or impairment as required by CONN. GEN. STAT . § 46a-60(a)(1) (id. at 22-29); and plaintiff did not engage in any protected activity, and there was no adverse

employment action taken against plaintiff.

(Id. at 30-32).

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1. COUNTS FIVE AND SIX: FAILURE TO PROVIDE A REASONABLE ACCOMMODATION UNDER THE ADA AND VIOLATION OF THE REHABILITATION ACT Defendant Oxford contends that plaintiff was not disabled as required by the ADA or the Rehabilitation Act9 because plaintiff was not substantially limited in any major life activity; plaintiff did not need reasonable accommodations to continue working;

defendant Oxford did what was possible to accommodate plaintiff's disability; and plaintiff did not suffer an adverse employment action because of her disability. 91 at 3-8). (Doc. No. 66 at 13-22; Doc. No.

Plaintiff responds that she has stated a prima facie

case with respect to each prong of the discrimination analysis under the ADA and the Rehabilitation Act. (Doc. No. 83 at 21-25).

Plaintiff further asserts that her disability involves both mental and physical impairments that substantially limit her major life activities of caring for herself, performing manual labor and working. perform (Id. at 25-26). the essential and Plaintiff also contends that she could of her job with in or without to

functions

accommodation

defendant

Oxford's

actions

response

plaintiff's disability amount to an adverse employment action. (Id. at 26-31).

9 The elements of a prima facie case under the Rehabilitation Act are identical to the elements of a claim under the ADA. Cino v. Sikorsky Aircraft, 42 F. Supp. 2d 147, 150 n. 1 (D. Conn. 1998)(citation omitted), aff'd, 182 F.3d 898 (2d Cir. 1999). The ADA and the Rehabilitation Act can be used interchangeably. Id. (multiple citations omitted). Accordingly, the following conclusions apply to Counts Five and Six.

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"No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees. . . ." U.S.C. § 12112(a). To establish a prima facie claim 42 of

discriminatory discharge under the ADA, plaintiff must show (1) that defendant Oxford is subject to the ADA; (2) that plaintiff suffers from a disability within the meaning of the ADA; (3) that plaintiff could perform the essential functions of her job with or without reasonable accommodation; and (4) that plaintiff suffered an adverse employment action because of her disability. See Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2d Cir. 1998). a. DEFENDANT OXFORD IS SUBJECT TO THE ADA Defendant Oxford is an "employer" subject to terms and

conditions of the ADA. 29 C.F.R. § 1630.2(e); see 42 U.S.C. § 12111(5)(A); (see generally Doc. No. 66, 14-15; Doc. No. 83 at 21). Thus, the first prong of plaintiff's prima facie case is satisfied. b. THE EXISTENCE OF A DISABILITY AND SUBSTANTIAL LIMITATIONS ON MAJOR LIFE ACTIVITIES To establish the second prong of her prima facie case,

plaintiff must establish that "a physical or mental impairment . . . substantially limits one or more of [her] major life activities."
10

42 U.S.C. § 12102(2)(A).10

Determining whether

Plaintiff can also demonstrate that she is disabled if she has "a record" of a substantially limiting impairment or she is "regarded as having such an impairment" by her employer. 42 U.S.C. § 12102(2)(B)-(C); see also Shaw v.

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plaintiff has such a disability requires analysis of a three-step process set forth by the Supreme Court in Bragdon v. Abbott, 524 U.S. 624, 631 (1998). First, it must be determined whether Id. at 631. upon Next, which

plaintiff has a physical or mental impairment. the court must decide whether the life

activity

plaintiff relies is actually a major life activity under the ADA. Id. Finally, the court must analyze whether the impairment is a Id.

substantial limitation on the major life activity.

Plaintiff suffers neurological limitations as a result of her 1987 car accident, including "symptoms of Post Traumatic Shock Syndrome," "Traumatic Brain Injury," "brain dysfunction frontal lobe injury and visual disturbance." (Doc. No. 66 at 3, 13-14;

Doc. No. 83 at 22; Doc. No. 83-1, Plaintiff Depo. Exh. 4; see Doc. No. 67, Depo. Exh. 39).11 According to defendant, however,

plaintiff's condition has caused her "no or minimal difficulty caring for herself, performing manual tasks, walking, hearing, speaking, breathing or learning." (Doc. No. 66 at 15; Doc. No. 91 at 3-4). Plaintiff counters that all of plaintiff's activities (Doc. No. 83 at

have been affected in some way by her disability.

Greenwich Anesthesiology Assocs., 137 F. Supp. 2d 48, 54 (D. Conn. 2001). Neither alternative is at issue in the present case.
11

In a letter, dated February 18, 2004, authored by Dr. Harry J. Brown, Dr. Brown also states that "[t]he accident of June 17, 1987, left [plaintiff] with a 15% physical disability from herniated discs in her neck and soft tissue injury." (Doc. No. 83-1, Plaintiff Depo. Exh. 4). Defendant correctly contends that plaintiff's claim that she has a physical disability from herniated disks injects new facts into the case that were never shared with Oxford. (Doc. No. 91 at 3). Accordingly, the Court will not consider this evidence of plaintiff's disability.

21

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23). A "major" activity is one that is of "central importance to most people's daily lives." Toyota Motor Mfg., Kentucky, Inc. v. Major life activities

Williams, 534 U.S. 184, 195, 198 (2002).

include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (2001).12 Plaintiff observes that

she has difficulty (1) "caring for herself - she has required the assistance of a housekeeper"; (2) "performing manual tasks - she has bouts where her seeing and hearing are diminished"; and (3) "working - she requires accommodation for the disability and when not directly available, she self accommodates in ways that are not necessarily evident." (Doc. No. 83 at 23-24). Plaintiff admits,

however, that since leaving Oxford, she has traveled to Florida, the Bahamas and Vermont, performs various types of housework, has not changed her ability to care for her household or her shopping habits, and has participated in exercising, walking, movies,

swimming, reading, watching television, using a personal computer and playing bridge. (Doc. No. 66 at 10, 15-16; Defendant Oxford's

Statement ¶¶ 85, 87, 89; Plaintiff's Statement ¶¶ 85, 87, 89; Doc. No. 67, Medvey Depo. V at 23-26; Doc. No. 67, Medvey Depo. II at 106-07, 116-118, 121; Doc. No. 67, Depo. Exhs. 12, 39). Weighing

12

"The Court accords "great deference" to the EEOC's interpretation of the ADA." See Francis v. City of Meriden, 129 F.3d 281, 283 n.1 (2d Cir. 1997)(citation omitted).

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plaintiff's evidence in the light most favorable to her, the issue becomes whether plaintiff has met her initial burden to show that her alleged impairment substantially limits her ability to engage in those major life activities. Under the EEOC Regulations, the term "substantially limited" means: [u]nable to perform a major life activity that the average person in the general population can perform; or [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1)(i)-(ii) (2001). "`Substantially' in the

phrase `substantially limits' suggests `considerable' or `to a large degree.'" Toyota, 534 U.S. at 196. Individuals claiming a

substantial limitation must prove their disability "by offering evidence that the extent of the limitation in terms of their own experience . . . is substantial." Albertson's, Inc. v.

Kirkingburg, 527 U.S. 555, 567 (1999). Plaintiff contends that she has required the use of a

housekeeper; however, plaintiff routinely completes housework, including laundry, vacuuming, dusting and washing dishes, "when necessary." (Doc. No. 83-1, Medvey Depo. I at 29-30; Doc. No. 67,

Depo. Exh. 39). Accordingly, plaintiff's impairment does not limit her ability to care for herself.

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Plaintiff generally asserted at her depositions that she has problems walking, hearing, learning, lifting and working as a result of her traumatic brain injury. (Doc. No. 83-1, Medvey Depo. IV at 6-7). Additionally, she claims that she suffers from reduced concentration and memory, difficulty retrieving words, increased anxiety, and bouts with impulsiveness and depression. 9). (Id. at 7-

Plaintiff also claims that she is limited in her ability to (Doc. No. 67, Medvey

drive or be a passenger in an automobile. Depo. II at 116-17).

"When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job." Toyota, 534 U.S. at 200-01.

Driving is undeniably a task "central to most people's daily lives." Id. However, although plaintiff claims that she is

limited in her ability to drive, she admits that she has been able to drive between approximately 11,000 and 15,000 miles per year for business and, in fact, has traveled to Florida, the Bahamas and Vermont since leaving Oxford, while actively exercising, walking, skiing, and swimming. (Doc. No. 67, Medvey Depo. II at 116-17;

Doc. No. 67, Medvey Depo. III at 142-143; Doc. No. 67, Depo. Exhs. 4-7, 39; Doc. No. 67, Medvey Depo. V at 23-26). Accordingly,

plaintiff is not substantially limited in her ability to perform

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manual tasks that are central to most people's daily lives. Plaintiff primarily asserts that her impairment substantially affects her ability to work. consideration is that of "When the major life activity under working, the statutory phrase

`substantially limits' requires, at a minimum, that [plaintiff] allege[s] [that she is] unable to work in a broad class of jobs." See Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999). "To

be substantially limited in the major life activity of working, . . . one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Accordingly, "[w]ith respect to the major life Id. at 492. activity of

working", the EEOC has defined "substantially limited" as significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i). A critical factor cited by the EEOC is "the number and types of jobs utilizing similar training, knowledge, skills or abilities [within the geographical area to which the individual has reasonable access], from which the individual is also disqualified. . . ." 29 C.F.R. §§ 1630.2(j)(3)(ii)(A)-(B). "If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs."

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Sutton, 527 U.S. at 492. Approximately seven months after plaintiff was hired by Oxford in a DSM position, plaintiff gave defendant Oxford a note from her ophthalmologist that stated that "the use of multi-screens at work at fast pace is not appropriate for Pat [Medvey]." Oxford's Statement ¶ 13; Plaintiff's Statement (Defendant

¶ 13; Doc. No. 67, In

Medvey Depo. IV at 44-45; Doc. No. 67, Depo. Exh. 20).

response, defendant Oxford moved plaintiff to a more suitable position for a few months, but moved her back to the DSM position following a downsize. (Doc. No. 67, Medvey Depo. II at 57-58; Doc. Plaintiff voiced her complaint

No. 67, Medvey Depo. I at 40-42).

on August 25, 1998 and then was placed in a DGSA position, in which she worked from October 1998 through May 1999. Medvey Depo. III at 159-160). (Id.; Doc. No. 67,

On May 19, 1999, plaintiff applied

for, and received, a medical leave of absence for three weeks, which was later extended at plaintiff's request for an additional two weeks. (See Doc. No. 67, Depo. Exhs. 26, 29-30; Doc. No. 67, During her leave of absence,

Medvey Depo. II at 83-84, 88-89).

plaintiff worked for another employer, real estate agent Grieb. (Doc. No. 67, Depo. Exhs. 52, 57; Doc. No. 67, Medvey Depo. III at 117-118, 129-130). In the months following plaintiff's return to

Oxford from her leave of absence, Oxford was unable to provide plaintiff with an accommodating position, so plaintiff returned to medical leave. (Orsaia Aff't ¶¶ 9-10).

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On agreement

September to serve

15, as

1999,

plaintiff personal

signed

an

employment for whom

Grieb's

assistant,

plaintiff worked until May 15, 2000.

(Doc. No. 67, Depo. Exh. 51;

Doc. No. 67, Medvey Depo. III at 110-112; Wilsnack Aff't ¶¶ 4, 811). The very next day, plaintiff began working in the same (Wilsnack Aff't ¶ 4, 8-

capacity for Grieb's daughter, Wilsnack. 12).

Plaintiff contends that she suffers from the chronic effects

of a traumatic brain injury that "limit[s] her ability to use a computer in a competitive, profit making, business paced

environment, no matter the employer, nor the job position."13 (Doc. No. 83 at 25). The personal assistant position for both Grieb and

Wilsnack required the use of a computer, specifically a program that maintained and organized housing inventory listings and price ranges. (Doc. No. 67, Medvey Depo. III at 72-73). According to

plaintiff, she did not suffer the same problem she had at Oxford, but, if she was at the computer for a long period of time, she would need to make adjustments. (Id.). Plaintiff, however, never

discussed with Wilsnack any claim that she was disabled. (Wilsnack Aff't ¶¶ 15-16). Moreover, she never requested any accommodation

for her disability from either Grieb or Wilsnack, though plaintiff

13

Plaintiff further acknowledges that she is "unable to perform . . . in the realm of moving multi-screened computer programs -- not just any computer system operation. While this precludes [plaintiff] from certain classes of employment and positions at all employers, it does not preclude her from other employment positions at any employer." (Doc. No. 83 at 25). As stated above, "the statutory phrase `substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs"; plaintiff admits she is not so precluded. Sutton, 527 U.S. at 491.

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admitted that the position resulted in enough discomfort to require periodic adjustments. 73). (Id.; Doc. No. 67, Medvey Depo. III at 72-

On January 1, 2002, plaintiff began working for Coldwell

Banker as a real estate agent -- a job she held for two years, during which time she never discussed her alleged disability with her employers. at 77). The foregoing evidence does not indicate that plaintiff's major life activity of working was "substantially limited" for the purposes of the ADA or the Rehabilitation Act. While working for (Doc. No. 67, Medvey Depo. III at 85; Arnheim Depo.

defendant Oxford, plaintiff made only two noted complaints prior to her medical leave, and both came about while she was a DSM. Plaintiff was only in the DGSA role from October 1998 through May 19, 1999, when she applied for medical leave. (Doc. No. 67, Medvey

Depo. II at 78-81, 83-84; Doc. No. 67, Depo. Exhs. 26, 29). Plaintiff had little difficulty adjusting to the personal assistant position she acquired while on medical leave, a job which required the use of computers. (Doc. No. 67, Medvey Depo. III at 72).

Though plaintiff found it necessary to make adjustments after working with the computers for a period of time, her discomfort never resulted in any complaints to her superiors. (Wilsnack Aff't ¶¶ 15-16). Plaintiff is not precluded from working a broad range

of jobs that include computers, but rather her condition affects her ability to perform a specific job, one involving multiple

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moving screens while responding to numerous, continuous telephone calls.14 Plaintiff's tenure as a personal assistant and then as a real estate agent highlights that plaintiff is not precluded from a substantial class of jobs. See Sutton, 527 U.S. at 492. In fact,

plaintiff concedes that she has successfully performed

"a variety

of jobs, over the course of her working years, which require the use of a computer, including positions at Oxford." 27). (Doc. No. 83 at

However, plaintiff is precluded from working with multiple The inability to perform one particular

moving computer screens.

job is insufficient as a matter of law to prove plaintiff is substantially limited in the major life activity of working. Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523 (1999). Plaintiff fails to meet her prima facie requirements of the third prong of the Bragdon test, and fails to establish that her physical or mental impairment substantially limits one or more of her major life activities. 149-50. c. QUALIFIED TO PERFORM THE ESSENTIAL FUNCTIONS OF HER JOB WITH OR WITHOUT ACCOMMODATION Even assuming, arguendo, that plaintiff has established that See 42 U.S.C. § 12102(2)(A); Reeves, 140 F.3d at

14

Additionally, plaintiff's testimony establishes that her condition is symptomatic when working on multiple moving computer screens but intermittent and episodic when faced with certain stressful situations. (See Doc. No. 67, Medvey Depo. II at 114; Doc. No. 67, Medvey Depo. III at 12-13). Such intermittent, episodic impairments are not considered disabilities. Hernandez v. City of Hartford, 959 F. Supp. 125, 131 (D. Conn. 1997)(citation omitted).

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she is substantially limited by her impairments in one or more major life activities, plaintiff must satisfy her burden to show

that she could perform the essential functions of her job with or without reasonable accommodation. job at issue, plaintiff "must To be qualified to perform the satisfy the requisite skill,

experience, education and other job-related requirements of the employment position and must be able to perform the essential functions of the position, with or without reasonable

accommodation."

Misek-Falkoff v. International Business Machines

Corp., 854 F. Supp. 215, 226 (S.D.N.Y. 1994) (multiple citations omitted), aff'd, 60 F.3d 811 (2d Cir. 1995). While at Oxford, plaintiff first worked as a Medicare phone representative and, in January 1998, she was assigned to the Medicare Group Accounts section, which had a smaller call queue. (Doc. No. 83 at 5; Doc. No. 66 at 2). In May 1998, as an

accommodation after the receipt of a note from Dr. Rabinowitz, plaintiff was assigned to Oxford's Correspondence Initiative in the Issues and Resolutions Department, but, as a result of downsizing within the company, plaintiff returned to her DSM work in the Medicare Group Accounts section. (Doc. No. 83 at 6-7; Doc. No. 66

at 3-4). When the Medicare Group Accounts section was transferred to New Hampshire a few weeks later, plaintiff was offered a position in the Claims Department, a position as a DGSA, or a severance package. (Doc. No. 83 at 7; Doc. No. 66 at 4).

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Plaintiff applied for the DGSA position without requesting an accommodation and began to work as a DGSA in October 1998 until her medical leave of absence on May 22, 1999. Doc. No. 66 at 5-6). (Doc. No. 83 at 8-9;

Plaintiff performed well and received (Doc.

favorable performance evaluations for her work at Oxford.

No. 67, Medvey Depo. II at 51-53; Doc. No. 83-1, Medvey Depo. II at 51-53, 55, Depo. Exh. 15 at 2; Depo. Exh. 16 at 2; see also Doc. No. 67, Depo. Exh. 15 at 2; Depo. Exh. 16 at 2). However,

according to plaintiff, "her achievement came with great difficulty and with the assistance of medication." No. 83-1, Medvey Depo. II at 58-59, 67). Plaintiff was aware that the essential functions of her job included "the use of multiple screens at a fast pace while (Doc. No. 83 at 5; Doc.

answering a large volume of customer calls." Exh. 18).

(Doc. No. 67, Depo.

Moreover, at her deposition, plaintiff confirmed that

the use of multiple screens at a consistently fast pace was an essential function to her position as a DSM. Depo. II at 67). (Doc. No. 67, Medvey

When a person with a disability is unable to

perform the essential functions of the job, the court must consider whether any reasonable accommodation by the employer would enable the person to perform those functions. School Bd. of Nassau

County, Fla. v. Arline, 480 U.S. 273, 287 n.17 (1987) (citation omitted). Moreover, it is "plaintiff's burden to identify

available positions and to demonstrate that she was qualified for

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those positions." Lester v. Natsios, 290 F. Supp. 2d 11, 25 (D.D.C. 2003). Once plaintiff presented defendant Oxford with her doctor's note advising that she not work with multiple screens, defendant Oxford accommodated plaintiff by assigning her to Oxford's

Correspondence Initiative.15

(Doc. No. 67, Medvey Depo. II at 57After the Initiative

58, Doc. No. 67, Medvey Depo. I at 40-41).

was eliminated, plaintiff returned to the DSM position with a smaller cue. (Doc. No. 83 at 5; Doc. No. 66 at 2; Doc. No. 67, After

Medvey Depo. III 159-60; see Doc. No. 67, Depo. Exh. 18).

that position was eliminated, plaintiff was offered a position in the Claims Department, which she rejected, and a position as a DGSA, which plaintiff applied for and at which she worked until the time of her medical leave in May 1999. (Doc. No. 67, Medvey Depo. III at 159-60; Doc. No. 67, Medvey Depo. II at 69, 78-81, 83-84). When plaintiff returned to work on June 28, 1999, she had a note from her psychiatrist, Dr. Harry Brown, that stated, "[w]ork on computer may not be appropriate at this time. exposure." Best to have limited

(Doc. No. 67, Depo. Exh. 31; Doc. No. 67, Medvey Depo. To comply with plaintiff's doctor's request, she (Orsaia Aff't ¶ 8).

II at 89-93).

was given temporary duties to perform.

Defendant contends that it did not have any jobs to assign to

15

The Correspondence Initiative was inherently transitional, as the position was created in response to case audits. The Initiative was abandoned due to "a lot of downsizing going on at the company at that time." (Doc. No. 67, Medvey Depo. I at 41-42).

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plaintiff at that time because of the downsizing that was occurring at Oxford and the resulting hiring freeze; plaintiff's

accommodation was to continue her disability leave of absence until she could return to her position, which required full-time use of the computer, or until Oxford could find plaintiff an alternative position for which she would be qualified. (Orsaia Aff't ¶¶ 8-10). Although plaintiff offered to "take anything[,] including

receptionist work at reduced hours and reduced pay," (Doc. No. 83 at 10), Oxford was unable to find an alternate position for plaintiff until 2001, when defendant contacted plaintiff,

interviewed her for several positions and offered her a part-time position, which plaintiff rejected. (Marlor Aff't ¶¶ 11-17).

Plaintiff only sought an alternate position after she gave Dr. Rabinowitz's note to defendant, and defendant promptly altered her position as the circumstances at that time allowed.16 Moreover,

plaintiff's supervisors repeatedly told her that she should pace herself to relieve some of the pressure and stress of the job. Additionally, defendant gave plaintiff a medical leave of absence which it extended after it did not have an accommodating placement available due to the company's financial difficulties.17
16

Plaintiff

As stated above, plaintiff was assigned to Oxford's Correspondence Initiative in the Issues and Resolutions Department, but as a result of downsizing within the company, plaintiff returned to her DSM work in the Medicare Group Accounts section. (Doc. No. 83 at 6-7; Doc. No. 66 at 3-4).
17

While plaintiff was on medical leave from Oxford, she was employed as a personal assistant and then as a real estate agent. Although plaintiff states that "her employment has always been supported with some form of accommodation for her disability," her subsequent employers submitted evidence that

33

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admits that "out of fear of losing employment opportunities, [she] did not request accommodations, and at times covertly implemented self accommodations in subsequent employment opportunities." (Doc. No. 83 at 29). However, plaintiff contends that she did "indicate" the availability of other more suitable positions for which she was qualified, but plaintiff concedes that these inquiries were not always made formally and that she searched independently for job openings on defendant's website. (Doc. No. 83-1, Medvey Depo. II

at 70-71, 73; Doc. No. 83-1, Medvey Depo. IV at 100-01). Defendant has "produced evidence that a hiring freeze

frustrated any ability to find other positions for plaintiff, . . . and that defendant did make good faith attempts" and even offered plaintiff part-time work as such work later became

available. 22).

Lester, 290 F. Supp. 2d at 25. (See Doc. No. 66 at 21-

Additionally, plaintiff has "offered no evidence that other

positions were available that would reasonably accommodate her alleged disability." Lester, 290 F. Supp. 2d at 25. Accordingly,

plaintiff has not satisfied her burden of establishing that other positions were available to reasonably accommodate her alleged disability. d. ADVERSE EMPLOYMENT ACTION Plaintiff contends that she "suffered the ultimate adverse employment action by way of Oxford's termination of her in November

plaintiff did not request such an accommodation.

(Doc. No. 91 at 7).

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1999."18

(Doc. No. 83 at 30).

Plaintiff, however, offers no Rather, while plaintiff was on

evidence that she was terminated.

a medical leave of absence from defendant, she went to work for a new employer in a new career. 2. Defendant COUNT SEVEN - RETALIATION Oxford contends that plaintiff did not suffer

retaliation under the ADA because she did not engage in any protected activity, defendant did not take an adverse employment action against plaintiff, and plaintiff cannot demonstrate a causal link between any protected activity and an adverse employment action. (Doc. No. 66 at 30-32; see Doc. No. 91 at 14-15).

Plaintiff counters that she was engaged in protected activity under the ADA through her opposition to defendant's practices and through defendant's failure to provide her with an accommodation;

subsequent to her denial of various employment positions after she made her disability clearly known to defendant, plaintiff was terminated without notice; and defendant's repeated discriminatory practice of denying plaintiff an accommodation, is a direct and causal link to her abrupt termination. (Doc. No. 83 at 39-41).

18

On November 11, 1999, Med Soft Corporation sent plaintiff a notice detailing her rights to employee benefits under COBRA and describing her relationship with defendant Oxford as terminated. (Doc. No. 83-1, Depo. Exh. 48). COBRA letters are sent to employees that voluntarily terminate employment as well as those who are fired, and at that time, plaintiff was employed by Grieb. Moreover, while it appears plaintiff had found another suitable career, defendant Oxford continued to send plaintiff available job opportunities in 2001, long after plaintiff began her career in real estate.

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The ADA retaliation provision protects any person who opposes an act or practice made unlawful by the ADA or who participates in any manner in an ADA proceeding. 42 U.S.C. § 12203.19 To state a

claim for retaliation under the ADA, plaintiff must show that: (1) she engaged in an activity protected by the ADA; (2) the employer was aware of that activity; (3) an adverse employment action occurred; and (4) a causal link existed between the protected activity and the adverse employment action. Sarno v. Douglas

Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999) (multiple citations omitted). Protected activities under the ADA "include the filing of a complaint with the EEOC and opposition by employees against an employer's discriminatory practices." Sacay v. The Research Found. of the City Univ. of New York, 44 F. Supp. 2d 505, 509 (E.D.N.Y. 1999). Such opposition typically takes "the form of making

complaints to management or expressing support of coworkers who have filed formal charges." Id. (citation omitted). Plaintiff

must have a "reasonable belief that the . . . challenged actions of the employer violated the law." Id. (citation and internal

quotations omitted).

19

42 U.S.C. § 12203(a) states:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. 42 U.S.C. § 12203(a).

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Plaintiff filed her complaint with the Connecticut Commission on Human Rights and Opportunities ["CHRO"] nearly five months after she left Oxford and she did not appeal MetLife's decision to close her benefit file until two years after leaving Oxford. (Doc. No.

67, Exh. K). According to plaintiff, she "consistently, repeatedly and persistently sought appointment to a position capable of accommodating her inability to use multi-screened moving computer programs while accepting calls through a headset and from a queue." (Doc. No. 83 at 40). Plaintiff testified that she applied for a

position in the Issues and Resolution Department and DSM; she made inquiries, mostly informal, about other available positions; she searched for job openings at Oxford on their website; and she offered to take a position as a "runner" or a receptionist but was denied. (Doc. No. 83-1, Medvey Depo. II at 70-71 & 73; Doc. No.

83-1 Medvey Depo. IV at 100-01; Doc. No. 83-1, Exh. F, Depo. Exh. 1; Doc. No. 83-1, Medvey Depo. I at 56). Plaintiff's actions do not constitute "protected activities" under the ADA. See Peeples v. Coastal Office Prods., Inc., 203 F.

Supp. 2d 432, 466 (D. Md. 2002), aff'd, 64 Fed. Appx. 860 (4th Cir. 2003). Plaintiff did not file any complaints with her employer

during her tenure at Oxford and in no way made her employer aware of her "opposition" to defendant's alleged practices. the court rejected notified a his claim of protected by e-mail activity that it In Peeples, where was the his

plaintiff

employer

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"understanding" that he was protected by the ADA. at 465.

203 F. Supp. 2d

Plaintiff's actions in this case are even more tenuous, as

plaintiff did not reference the ADA or even file her complaint with CHRO until nearly five months after she left Oxford.20 Because there is no evidence that plaintiff engaged in

protected activity as defined by the ADA, nor is there evidence that defendant Oxford was made aware of any such activity,

plaintiff cannot make out a prima facie case of retaliation under the statute. Moreover, because plaintiff cannot demonstrate that she opposed a protected activity under the ADA, she could not have suffered an adverse employment action and she cannot demonstrate a causal link between her protected activity and an adverse

employment action where neither prerequisite element exists. 3. COUNT FOUR - DISCHARGE BECAUSE OF HER DISABILITY IN VIOLATION OF CONN. GEN. STAT. § 46a-51 According to defendant Oxford, plaintiff did not have a disability within the meaning of CONN . GEN . STAT . § 46a-51(15) because plaintiff's condition is neither chronic, nor a handicap, impairment, or infirmity as required by that statute (Doc. No. 66 at 24-26; Doc. No. 91 at 8-10); plaintiff was not rejected for any

20

On August 25, 1998, plaintiff complained to her supervisor in an e-mail that "Dr. Rabinowitz . . . has indicated that the use of multiple screens at a consistently fast pace is not appropriate for me because it affects my vision and induces a physical state of vertigo." (Doc. No. 67, Depo. Exh. 18). As a possible accommodation, plaintiff was aware that she could have requested a "busy out" capability, but plaintiff did not do so, even though she would still have been productive. (Doc. No. 67, Medvey Depo. III at 4951; Doc. No. 83 at 6).

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existing position at Oxford after informing defendant Oxford of her disability (Doc. No. 66 at 27; Doc. No. 91 at 11-12); plaintiff did not suffer an adverse employment action; and there are no

circumstances that can give rise to a reasonable inference of discrimination because defendant Oxford was downsizing in the midst of financial difficulties. 12-14). prima (Doc. No. 66 at 27-29; Doc. No. 91 at

In response, plaintiff asserts that she satisfies the case for disability within the meaning of the

facie

aforementioned statute and that, as a result of that disability, was rejected for existing positions at Oxford. 35). (Doc. No. 83 at 31-

Plaintiff further argues that the present facts create a

reasonable inference of discrimination sufficient to sustain her prima facie burden. The Connecticut (Id. at 36-38). Fair Employment Practices Act ["CFEPA"]

provides, inter alia, that, except in the case of a bona fide occupational qualification or need, "[i]t shall be a discriminatory practice . . . [f]or an employer . . . to discriminate against any such individual in compensation or in terms, conditions or

privileges of employment because of the individual's . . . physical disability. . . ." CONN . GEN . STAT . § 46a-60(a)(1).21 "Federal

21

"Connecticut and federal laws do not provide coextensive disability discrimination coverage. . . ." Beason v. United Techs. Corp., 337 F.3d 271, 277 (2d Cir. 2003). The ADA has a "significant threshold," namely, that a "physical disability substantially l