Opinion
No. CV-07-5011977
May 13, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#108)
The following facts are taken from the decision of the court, Bellis, J., on the defendant's motion to strike the complaint. "On June 20, 2007, the plaintiff, Steven Cimino, filed a one-count complaint against his employer, the defendant, Pratt Whitney. The complaint includes the following allegations. The plaintiff suffers from severe obstructive sleep apnea, which causes him to be excessively tired and to require naps throughout the day. In February 2004, the plaintiff took short-term disability leave due to his condition. Per his doctor's orders, the plaintiff sought a reasonable accommodation from the defendant in the form of either a schedule that required that he drive only during daylight hours, as he had fallen asleep at the wheel while driving in darkness, or an `alternative work week' schedule, which would allow him to work three long shifts per week and rest during his off days. The defendant refused to provide either accommodation. According to the plaintiff, the defendant's refusal constitutes a violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60(a)(1), and he has suffered damages in the form of lost wages and emotional distress." Cimino v. Pratt Whitney, Superior Court, judicial district of New Haven, Docket No. CV 07 5011977 (November 29, 2007, Bellis, J.) (44 Conn. L. Rptr. 621).
The defendant now moves for summary judgment, claiming that it is entitled to judgment as a matter of law because there is no genuine issue of material fact that (1) plaintiff's request for a reasonable accommodation relates to his commute to work, which is not an essential function of his job, thereby making his claim of discrimination invalid; and (2) his request for an "alternative work week" schedule would result in an impermissible infringement of the seniority rights of other workers under the collective bargaining agreement ("CBA"). The plaintiff objects, claiming that his accommodation requests for a modified work schedule are reasonable requests under the law. For the reasons stated herein, the motion is granted in part and denied in part.
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, [entitle] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Emphasis added; internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"A material fact is a fact that will make a difference in the outcome of the case." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 294, 830 A.2d 346 (2003). "Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
DISCUSSION
In Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 944 A.2d 925 (2008), our Supreme Court held that CFEPA; General Statutes § 46a-60; requires employers to make reasonable accommodations for an employee's disability. "In order to survive a motion for summary judgment on a reasonable accommodation claim, the plaintiff must produce enough evidence for a reasonable jury to find that (1) he is disabled within the meaning of the [statute], (2) he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiff's] disability, did not reasonably accommodate it . . . If the employee has made such a prima facie showing, the burden shifts to the employer to show that such an accommodation would impose an undue hardship on its business." (Citations omitted; internal quotation marks omitted.) Id., 415-16.
The defendant argues that the plaintiff's two requested accommodations are not reasonable under the law. They first argue that, based on a fair reading of the plaintiff's complaint, his doctors' letters (defendant's exhibits 6, 8-14) and the answers he gave at deposition (defendant's exhibit 3), his claim of discrimination is simply that the employer refused to allow him to commute to work during daylight hours. The plaintiff replies that allowing him to work a schedule that would permit him to drive during daylight hours would reasonably accommodate his disability of sleep apnea, because it would allow him to drive without the danger of falling asleep at the wheel during night hours. The plaintiff also requested an alternative modified work schedule; namely assignment to an "alternative work week," which is a shift of three, twelve-hour days. Although that schedule would require night driving, plaintiff claims that the schedule would allow him to sleep more hours on the four days off and thus be rested for any night driving. The defendant argues that an assignment to three day/long shift schedule would require a violation of the collective bargaining agreement, because it would put the plaintiff into that shift ahead of those workers with more seniority. At its most basic level, the defendant argues that the plaintiff's requested accommodations are not related to work and would require violation of the seniority system for shift preference; plaintiff argues that by failing to accommodate his "sleep/wake" schedule, which is exacerbated by his sleep apnea, the defendant has discriminated against him.
In analyzing claims under the Connecticut antidiscrimination statute, our Supreme Court has determined that our statute should be interpreted in accordance with federal antidiscrimination laws. Curry v. Goodman, supra, 286 Conn. 407 (citing Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705-09, 900 A.2d 498 (2006), and others). As there is a dearth of opinions from Connecticut on this particular subject, the court looks to the decisions of the federal courts for guidance in interpreting whether, under our antidiscrimination statute, a requested work schedule is a legally sought accommodation or simply a commute preference. See Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).
Federal regulations define reasonable accommodations as "modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii). A "modified work schedule" is one of the examples of a reasonable accommodation. 29 C.F.R. § 1630.2(o)(2)(ii).
The court turns first to the argument that the plaintiff's first requested accommodation is merely a request for a preferred commute. Several federal courts have found that the Americans with Disabilities Act ("ADA") and the regulations that implement it do not require an employer to provide an employee with an accommodation that facilitates the employee's commute to work. These courts have concluded that the ADA is designed to cover barriers to an employee's ability to work that exist inside the workplace, not difficulties over which the employer has no control.
In LaResca v. American Telephone Telegraph, 161 F.Sup.2d 323 (D.N.J. 2001), the plaintiff, who suffered from epilepsy, sought an accommodation of a day shift that would permit him to drive to work during daylight hours. The defendant argued that the shift change was not an accommodation that it was legally obligated to provide, but rather was a request for an easier, more convenient commute. The court agreed with the defendant and noted the findings of other courts that have held that "commuting to and from work is not part of the work environment that an employer is required to reasonably accommodate." Id., 333. The court also noted that plaintiff's own admission was that the only reason he could not work his assigned shift of 2 p.m. to 10 p.m. was due to his inability to commute during those hours. Id.
In Salmon v. Dade County School Board, 4 F.Sup.2d 1157 (S.D. Fla. 1998), the plaintiff was employed as a school guidance counselor. She suffered from back injuries that prevented her from driving long distances. She sought a transfer to a school with a shorter commute and sued when she did not receive that requested accommodation. The court rejected her claim, finding that a school district did not have to transfer an employee to a school closer to her home to accommodate her back problems because "[w]hile an employer is required to provide reasonable accommodations to eliminate barriers in the work environment, an employer is not required to eliminate those barriers which exist outside the work environment. Id., 1163.
Finally, in Livingstone v. Fred Meyer Stores, Inc., 567 F.Sup.2d 1265 (D. Ore. 2008), the plaintiff, who suffered eyesight difficulties that affected her ability to drive at certain times of the day, sought an accommodation as to the hours of her employment so that she would not have to drive during nighttime hours. The court found that the plaintiff's disability did not substantially limit her in her job as a wine steward. Persuaded by the reasoning in LaResca and Salmon, the court held that employers are not required to grant accommodations to allow an employee to commute to work because the ADA solely addresses discrimination with respect to any terms, condition or privilege of employment. Livingstone v. Fred Meyer Stores, Inc., supra, 1272; see also Kvorjak v. Maine, 259 F.3d 48, 53 (1st Cir. 2001) ("the [employer's] decision to reject an accommodation based on [the employee's] commute does not demonstrate a disregard for its obligations under the ADA").
Plaintiff argues that the court should not adopt the reasoning from these cases, which have only persuasive authority on this court. He contends that other courts have found that employers have an obligation under the act to facilitate an employee's ability to get to work. Plaintiff points the court to Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995). In that case, the plaintiff, a Legal Aid attorney who had been injured in an automobile accident, sought an accommodation of a parking place at her office and near the courthouse so that she would not have to walk long distances, and overtax herself physically, in order to reach and perform her job. The Second Circuit court reviewed the "stated views of Congress and agencies responsible for overseeing the federal disability statutes" and determined that there is "nothing inherently unreasonable in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to [the] ability to get to work." Id., at 1517. In Lyons, however, it was not the commute, but rather the distance that plaintiff might be required to travel on foot from her parking spot to the jobsite that would affect her ability to perform her job. The court distinguishes the Lyons' decision on the basis of the clear connection between the plaintiff's ability to get from her car to her worksite and her ability to perform her job.
Thus, the question boils down to, is the request for a day shift permitting him to drive only in daylight hours a reasonable accommodation? If the accommodation is one of commuting ease only, then it is not reasonable under the law. If, however, the accommodation is one that has a direct impact on the plaintiff's ability to perform his job, then the accommodation may well be reasonable. This court agrees with the reasoning of those courts that found that Congress intended to limit accommodations to those at the workplace. To rule otherwise could make an employer responsible for how an employee gets to work, a situation which expands the employer's responsibility beyond the purpose of the ADA.
In this case, the plaintiff's claim for a "requested accommodation of a work schedule that permits him to drive to and from work during the daylight hours" is nothing more than a request based on his commuting preferences. This case is no different than Livingstone v. Fred Meyer Stores, Inc., supra, 567 F.Sup.2d 1265, wherein the plaintiff sought an accommodation as to her work hours so that she would not have to drive at night. This court is persuaded by the decisions that hold that an employer is not required to grant accommodations that relate to the commute because those requests fall outside of the terms, condition or privilege of employment. The plaintiff cannot, as a matter of law, sustain his claim as to his first requested accommodation, which request is no more than a request for a different commute. The defendant's motion for summary judgment is granted as to the plaintiff's first requested accommodation.
The plaintiff also requested, and was denied, an alternative work schedule, namely, a three-day/twelve-hour shift week. Again, the plaintiff argues that the three-day shift week would accommodate his apnea. Despite the fact that his requested shift would require night driving, the plaintiff argues that the four days off from work would allow him to obtain enough sleep to drive during the three nights of the shift. The defendant argues that this requested shift reassignment would violate the terms of the CBA. In support thereof, the defendant presented as exhibits a copy of the relevant section of the CBA (exhibit 5) and an affidavit of Walter Eels, the labor relations manager at Pratt Whitney (exhibit 4). These documents establish that seniority is the governing factor for selecting preferred shifts, in the presence or absence of a layoff. The court views the request for a particular shift differently than the request for a daylight commute. Certain legal standards apply in situations where a claim is made for a shift assignment accommodation that affects seniority systems in the workplace.
In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), the United States Supreme Court was asked to decide whether the ADA requires an employer to assign a disabled employee to a particular position even though another employee is entitled to that position under the employer's "established seniority system." The court held that upsetting a bona fide seniority system is presumptively an undue hardship. Id., 404. "[O]rdinarily the ADA does not require that assignment. Hence, a showing that the assignment would violate the rules of a seniority system warrants summary judgment for the employer — unless there is more. The plaintiff must present evidence of that `more,' namely, special circumstances surrounding the particular case that demonstrate the assignment is nonetheless reasonable." Id., 405-06. The court described two examples of what might amount to special circumstances, including "that the employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing employee expectations that the system will be followed" or "that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter." Id. Nevertheless, the court held that "the plaintiff must explain why, in the particular case, an exception to the employer's seniority policy can constitute a `reasonable accommodation' even though in the ordinary case it cannot." Id.
The Supreme Court decided not to distinguish between seniority systems unilaterally imposed by management and seniority systems established pursuant to collective bargaining agreements in the context of disability accommodations because "the relevant . . . advantages and related difficulties that result from violations of seniority rules are not limited to collectively bargained systems." US Airways, Inc. v. Barnett, supra, 535 U.S. 404.
It is the plaintiff's burden to establish that the requested accommodation of a work shift for which he lacks seniority is reasonable because of his particular special circumstances. In a motion for summary judgment, the evidence and the inferences drawn therefrom must be cast in a light most favorable to the plaintiff, as the non-moving party. The plaintiff argues that no employees would actually be deprived of a position if Pratt Whitney accommodated his request, thus justifying a departure from the seniority system. The defendant argues that the plaintiff has not shown sufficient facts to show that the request is reasonable based on his special circumstances. Under the facts as alleged and the appropriate standards, the plaintiff has met his burden of raising a genuine issue of material fact regarding the reasonableness and actual effect of his requested accommodation on the relevant seniority system as described in the CBA, and therefore, summary judgment is not appropriate at this juncture. Therefore, as to plaintiff's second accommodation request, the motion for summary judgment is denied.
CONCLUSION
For all the foregoing reasons, the defendant's motion for summary judgment is granted as to the plaintiff's first requested accommodation and denied as to the plaintiff's second requested accommodation.