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*********************************************** 
KIM THOMSON v. DEPARTMENT OF

SOCIAL SERVICES

(AC 38851)

Sheldon, Beach and Flynn, Js.

Syllabus

The plaintiff employee commenced an action against her employer, the

defendant Department of Social Services, alleging that the defendant

had violated the Connecticut Fair Employment Practices Act (§ 46a-51

et seq.) by discriminating against the plaintiff on the basis of her disability

as a result of the defendant’s failure to provide her with a reasonable

accommodation. The plaintiff suffered from a severe chronic disease

that required her to periodically miss work. In January 2013, the plaintiff,

who was not eligible for federal family and medical leave, provided G,

one of the defendant’s human resources representatives, with a medical

certificate from her physician that indicated that the plaintiff would

have to work on a reduced schedule, but the physician did not indicate

a date when she could return to work full-time. Approximately one week

later, the plaintiff left a note under G’s door indicating that she would

be taking a medical leave lasting more than thirty days, depending on

her condition. The note listed the plaintiff’s cell phone number and

home address, and stated that she could be contacted regarding any

questions. Thereafter, O, another human resources representative who

replaced G, sent a certified letter to the address listed in the plaintiff’s

note, stating that she was ineligible for family and medical leave, that

she had not provided the documents necessary to support a medical

leave of absence, and that she was currently on unauthorized leave. The

letter stated that O had called the plaintiff’s cell phone and left a voicemail message but that she had not received a response. The letter

provided that the plaintiff’s absence would be deemed a resignation not

in good standing if she did not return to work or provide a medical

certificate to support her leave by a certain date. After that date had

passed, O sent the plaintiff a letter stating that she had ‘‘been resigned

not in good standing’’ because she had failed to return to work and

failed to provide a completed medical certificate. The trial court thereafter granted the defendant’s motion for summary judgment, concluding

that the plaintiff failed to present evidence sufficient to support a prima

facie case of discrimination because she had not provided evidence

demonstrating that she was able to perform her job with or without a

reasonable accommodation, or that the defendant did not reasonably

accommodate her. From the summary judgment rendered thereon, the

plaintiff appealed to this court, claiming that the trial court had improperly rendered summary judgment for the defendant because her request

for leave was a reasonable accommodation that would have enabled

her to perform the essential functions of her job. Held that the trial

court properly determined that the plaintiff could not meet her burden

of proving a prima facie case of disability discrimination because her

request for leave was not a reasonable accommodation, as the plaintiff

informed the defendant that she would be taking a leave of absence

but did not provide the defendant with any time frame for her return

and did not respond to the defendant’s subsequent attempts to contact

her regarding her request for leave, and the defendant was not required

to wait indefinitely for the plaintiff’s medical condition to be corrected;

moreover, the defendant was not given an opportunity to engage in the

required interactive process with the plaintiff regarding a reasonable

accommodation for her disability given that she had failed to follow

through with her own directions to the defendant as to how communications would occur.

Argued March 6—officially released September 5, 2017

Procedural History

Action to recover damages for alleged disability discrimination, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the

court, Elgo, J., granted the defendant’s motion for summary judgment and rendered judgment thereon, from

which the plaintiff appealed to this court. Affirmed.

James V. Sabatini, for the appellant (plaintiff).

Matthew F. Larock, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Ann E. Lynch, assistant attorney general, for

the appellee (defendant).

Michael Roberts filed a brief for the Commission on

Human Rights and Opportunities as amicus curiae.
Opinion

BEACH, J. The plaintiff, Kim Thomson, appeals from

the judgment of the trial court granting the motion for

summary judgment filed by the defendant, the Department of Social Services. On appeal, the plaintiff contends that the court improperly held that insufficient

facts were presented to support a prima facie case for

disability discrimination. We affirm the judgment of the

trial court.

The following facts, taken from the materials submitted in connection with the motion for summary judgment, are relevant to this appeal. The plaintiff was

employed by the defendant as a clerical assistant from

1987 to 2013. She has suffered from severe chronic

asthma since birth. Throughout her employment with

the defendant, the plaintiff suffered occasional ‘‘flareups’’ of her condition. During these flare-ups, the plaintiff required rest for recovery and was unable to work.

On several occasions the plaintiff arranged with her

human resources representative, Kelly Geary, to take

medical leave pursuant to the Family and Medical Leave

Act, 29 U.S.C. § 2601 et seq. (2012) (FMLA). By October,

2012, however, the plaintiff was no longer eligible for

FMLA leave because she had not worked the number

of hours required to maintain eligibility. The plaintiff,

Geary, and the plaintiff’s supervisor, Louis Polzella, met

to discuss how they could accommodate the plaintiff

without using FMLA leave and determined that the

plaintiff could use sick leave, personal leave, governor’s

leave, and unpaid leave when necessary to accommodate her disability.

On January 30, 2013, the plaintiff notified Geary that

she would need to take intermittent leave as an accommodation for her disability. The plaintiff provided Geary

with a medical certificate on which the plaintiff’s physician indicated that she would need ‘‘to . . . work only

intermittently or on a reduced schedule as a result of

the condition,’’ and would be unable to work for four

days per month going forward. The form left space for

the plaintiff’s physician to indicate when she would be

able to return to work full-time, but he drew a line

through the space and did not fill in a date.

Early in 2013, Geary became responsible for supervising another unit, and Lisa Owens replaced Geary as the

plaintiff’s human resources representative. On January

31 of that year, Geary sent Owens a memo informing

her that the plaintiff ‘‘[h]as had FMLA—fed intermittent

for years’’ and that ‘‘last time she submitted,’’ she did

not have the hours required to take any additional FMLA

leave. Geary also indicated that the plaintiff had mentioned that she may need to take leave soon and had

requested the ability to use leave donated from a

coworker, but that Geary ‘‘advised her she could not

enact it until she was out on ‘long term’ illness of [more
than thirty] days.’’

Approximately one week later, on February 6, 2013,

the plaintiff left a note under Geary’s office door indicating that she would be taking a medical leave of absence

beginning the next day, February 7, 2013, and lasting

for ‘‘over thirty days depending on my lung condition

as I need to get well and my lungs better.’’ The plaintiff

noted that she had not spoken with Polzella about taking a leave of absence. The plaintiff also provided her

cell phone number and her home address, which she

listed in bold type font, and asked Geary to contact her

if she had any questions. The plaintiff otherwise did

not speak with Geary about taking this leave of absence.

The plaintiff also left paperwork with Geary to make

claims under two short-term disability insurance policies. The paperwork left space in several places for the

plaintiff and her physician to indicate when she would

be returning to work. On the paperwork for one policy,

the plaintiff indicated that she would be unable to work

from February 7, 2013, ‘‘[until] reevaluated.’’ On the

same form, the plaintiff’s physician indicated that she

would be unable to work from ‘‘2/7/13’’ to ‘‘ongoing,’’

and that he expected ‘‘significant improvement in the

[plaintiff’s] medical condition’’ in one to two months.

On the paperwork for her other policy, the plaintiff’s

physician indicated that she would be unable to work

from ‘‘2/7/13’’ through ‘‘ongoing,’’ and would be able to

return to work ‘‘when reevaluated,’’ but did not indicate

when that reevaluation would occur. The plaintiff did

not provide Geary with a medical certificate sufficient

to support this request for leave. On February 7, 2013,

Geary sent the plaintiff’s note and paperwork to Owens.

On February 13, 2013, Owens mailed a certified letter

to the plaintiff’s home address notifying her that she

was ineligible for FMLA leave, that she had not provided

the documents necessary to support a medical leave of

absence, that she was not eligible to use leave time

donated by a coworker, and that she was currently on

unauthorized leave. Owens also notified the plaintiff

that she needed to contact her supervisor to request

leave on a daily basis, and that, if she did not return to

work or provide a medical certificate to support her

leave by February 21, 2013, her absence ‘‘may be

deemed a resignation not in good standing.’’ (Internal

quotation marks omitted.) Owens noted that she had

called the plaintiff’s cell phone number and left a voicemail message on February 8, 2013, but had not received

a call back. The plaintiff did not respond and did not

return to work. On February 22, 2013, Owens sent the

plaintiff a second letter via regular mail notifying her

that she had ‘‘been resigned not in good standing’’

because she had failed to return to work and failed to

provide a completed medical certificate on or before

February 21, 2013.

The plaintiff did not receive either of these letters
until February 24, 2013, when she returned home from

an approximately two week stay at her daughter’s home

in Hartford. The plaintiff had not been retrieving her

mail from her home address while she was away. On

February 25, the plaintiff began calling and leaving messages for Geary and Owens, asking whether the donated

leave had been applied, requesting that the disability

paperwork be completed, and seeking to ‘‘make sure

that everything [is] going in the manner that it should

be.’’ On February 27, Owens spoke with the plaintiff

on the phone and informed her that, per the letters sent

to her home address, she had been deemed resigned

not in good standing. On March 15, 2013, the plaintiff

mailed a replica of her January 30, 2013 medical certificate to Owens with the additional notation: ‘‘[a]sked to

stay off work 2/7/13 [until] improved.’’ No action was

taken on the basis of that certificate.

The plaintiff commenced an action alleging that the

defendant had discriminated against her on the basis

of her disability and had failed to provide her with

a reasonable accommodation in violation of General

Statutes § 46a-60 (a) (1), a provision of the Connecticut

Fair Employment Practices Act, General Statutes § 46a51 et seq. The defendant filed a motion for summary

judgment arguing that the plaintiff had failed to present

evidence sufficient to support a prima facie case of

discrimination, and the trial court granted the defendant’s motion. The court agreed and noted that ‘‘the

plaintiff has not produced evidence demonstrating that

she was able to perform her job with or without reasonable accommodation nor has she shown that the defendant did not reasonably accommodate [her].’’ This

appeal followed.

We begin by setting forth the relevant standard of

review and applicable legal principles. ‘‘A court shall

render summary judgment 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light

most favorable to the nonmoving party. . . . The party

moving for summary judgment has the burden of showing the absence of any genuine issue of material fact

and that the party is, therefore, entitled to judgment as

a matter of law. . . . The test is whether the party

moving for summary judgment would be entitled to a

directed verdict on the same facts. . . . Our review of

the trial court’s decision to grant the defendant’s motion

for summary judgment is plenary.’’ (Internal quotation

marks omitted.) Curry v. Allan S. Goodman, Inc., 286

Conn. 390, 402–403, 944 A.2d 925 (2008).

‘‘Our Supreme Court has determined that Connecticut antidiscrimination statutes should be interpreted in

accordance with federal antidiscrimination laws. . . .
While certain elements of the Fair Employment Practices Act and the [Americans with Disabilities Act, 42

U.S.C. § 12101 et seq. (2012) (ADA)] differ, [c]laims for

violations of the [Fair Employment Practices Act] are

analyzed under the same standards as claims for violations of the ADA. . . . [D]iscrimination on [the] basis

of [a] disability under [the] ADA includes not making

reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee, unless

such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . . Under

the ADA, a qualified individual with a disability is one

who is capable of performing the essential functions

of the desired job with or without reasonable accommodation.’’ (Citations omitted; footnote omitted; internal

quotation marks omitted.) Langello v. West Haven

Board of Education, 142 Conn. App. 248, 259–60, 65

A.3d 1 (2013).

‘‘In order to survive a motion for summary judgment

on a reasonable accommodation claim, the plaintiff

must [first establish a prima facie case of disability

discrimination by] produc[ing] enough evidence for a

reasonable jury to find that (1) [s]he is disabled within

the meaning of the [statute], (2) [s]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.’’ (Internal quotation marks

omitted.) Curry v. Allan S. Goodman, Inc., supra, 286

Conn. 415; see McBride v. BIC Consumer Products Mfg.

Co., 585 F.3d 92, 96–97 (2d Cir. 2009). ‘‘Once a disabled

individual has suggested to his [or her] employer a

reasonable accommodation . . . the employer and the

employee engage in an informal, interactive process

with the qualified individual with a disability in need

of the accommodation . . . [to] identify the precise

limitations resulting from the disability and potential

reasonable accommodations that could overcome those

limitations. . . . In this effort, the employee must

come forward with some suggestion of accommodation, and the employer must make a good faith effort

to participate in that discussion.’’ (Citation omitted;

internal quotation marks omitted.) Id., 416.

‘‘The plaintiff bears the burdens of both production

and persuasion as to the existence of some accommodation that would allow her to perform the essential functions of her employment . . . .’’ McBride v. BIC

Consumer Products Mfg. Co., supra, 583 F.3d 97. ‘‘To

satisfy this burden, [the] [p]laintiff must establish both

that [her] requested accommodation would enable [her]

to perform the essential functions of [her] job and that

it would allow [her] to do so at or around the time at

which it is sought.’’ (Internal quotation marks omitted.)

Nandori v. Bridgeport, United States District Court,
Docket No. 3:12CV673 (JBA), 2014 WL 186430, *5 (D.

Conn. January 16, 2014); see also McBride v. BIC Consumer Products Mfg. Co., supra, 97–98 (plaintiff

requesting reassignment as accommodation required to

‘‘demonstrate the existence, at or around the time when

accommodation was sought, of an existing vacant position to which she could have been reassigned’’).

To satisfy the second element of her prima facie case,

the plaintiff must show that the requested accommodation was reasonable and enabled her to function in the

workplace. See Curry v. Allan S. Goodman, Inc., supra,

286 Conn. 419 (‘‘[i]n order to survive summary judgment

on a reasonable accommodation claim, the plaintiff has

the burden of showing that an accommodation would

enable him [or her] to perform the functions of the job

and that, ‘at least on the face of things,’ it is feasible

for the employer to provide the accommodation’’); see

also Graves v. Finch Pruyn & Co., 457 F.3d 181, 185

(2d Cir. 2006); Nandori v. Bridgeport, supra, 2014 WL

186430, *5–6. The plaintiff argues that her request for

leave was a reasonable accommodation and would have

enabled her to perform the essential functions of her

job. The defendant contends that the plaintiff’s request

for leave was not reasonable, and, therefore, that she

failed to prove that she was able to perform the essential

functions of her job with a reasonable accommodation.

We agree with the defendant.

We first note that a medical leave of absence is a

recognized form of accommodation. See Green v. Cellco

Partnership, 218 F. Supp. 3d 157, 164–65 (D. Conn.

2016); Hutchinson v. Ecolab, Inc., United States District

Court, Docket No. 3:09CV1848 (JBA), 2011 WL 4542957,

*9 (D. Conn. September 28, 2011). Federal courts have

held, however, that ‘‘[t]he duty to make reasonable

accommodations does not, of course, require an

employer to hold an injured employee’s position open

indefinitely while the employee attempts to recover,

nor does it force an employer to investigate every aspect

of an employee’s condition before terminating him [or

her] based on [an] inability to work.’’ Parker v. Columbia Pictures Industries, 204 F.3d 326, 338 (2d Cir. 2000);

see also Mitchell v. Washingtonville Central School District, 190 F.3d 1, 9 (2d Cir. 1999) (‘‘[n]or, especially in

light of the . . . the absence of any indication from [the

plaintiff] . . . [that] he expected to be able to return

[to work], was the [defendant] required to grant [the

plaintiff] an indefinite leave of absence’’); Nandori v.

Bridgeport, supra, 2014 WL 186430, *8 (‘‘[p]laintiff’s

only identified accommodation was a request for indefinite injury leave, which, as a matter of law, does not

constitute a reasonable accommodation’’).

Although not bound by it, ‘‘we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.’’

Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415.
We find persuasive the reasoning of the United States

Court of Appeals for the Fourth Circuit in Myers v.

Hose, 50 F.3d 278, 283 (4th Cir. 1995), that ‘‘reasonable

accommodation is by its terms most logically construed

as that which presently, or in the immediate future,

enables the employee to perform the essential functions

of the job in question. . . . [R]easonable accommodation does not require [an employer] to wait indefinitely

for [the employee’s] medical conditions to be corrected

. . . .’’ See also Mitchell v. Washingtonville Central

School District, supra, 190 F.3d 9, citing Myers; Rogers

v. International Marine Terminals, Inc., 87 F.3d 755,

759–60 (5th Cir. 1996) (finding no merit in argument

that indefinite leave was reasonable accommodation).

The plaintiff argues that she had requested a reasonable accommodation, thereby satisfying the second element of her prima facie case. We disagree. The plaintiff,

prior to her departure, informed Geary that she would

be taking leave for ‘‘over thirty days depending on my

lung condition . . . .’’ (Emphasis added.) At a subsequent deposition, the plaintiff was asked, with respect

to her request for leave, that ‘‘you didn’t know how

long you were going to be out, correct?’’ The plaintiff

responded, ‘‘[c]orrect.’’ One of the forms the plaintiff

submitted on February 6, 2013, indicated that her physician expected ‘‘improvement’’ within ‘‘one to two

months,’’ and additionally stated, in at least three

places, that the plaintiff would be absent ‘‘[until] reevaluated.’’ The forms did not indicate when the plaintiff

was expected to be reevaluated. Neither the plaintiff’s

note to Geary nor her short-term disability paperwork

indicated when—or even whether—the plaintiff would

be returning to work.

When the defendant attempted to obtain further information by contacting the plaintiff by certified and regular mail, the plaintiff did not respond. As the trial court

noted, ‘‘the defendant’s efforts to communicate with

the plaintiff were stymied by the plaintiff’s failure to

follow through with her own directions to the defendant

as to how communications would occur.’’ The plaintiff

did not attempt to contact the defendant until she had

been absent from work for more than two weeks,

despite the fact that her request for leave had never

been approved. The defendant, then, was not given an

opportunity to engage in the required interactive process with the plaintiff regarding a reasonable accommodation for her disability.1

The plaintiff informed the defendant that she would

be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not

respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff

effectively asked the defendant ‘‘to hold [her] position

open indefinitely while [she] attempt[ed] to recover

. . . .’’ Parker v. Columbia Pictures Industries, supra,
204 F.3d 338. On the basis of the record before us, the

plaintiff has failed to demonstrate that she requested a

reasonable accommodation that enabled her to perform

the essential functions of her job, and, therefore, the

court properly determined that as a matter of law the

plaintiff could not meet her burden of proving a prima

facie case of disability discrimination.2

The judgment is affirmed.

In this opinion the other judges concurred.

1 The plaintiff argues that ‘‘[b]efore an employer should be able to rely

on the ‘indefiniteness’ of a leave request as a justification for avoiding the

accommodation, the interactive process should compel the employer to

explain its particular difficulty surrounding the lack of a return date, and

to invite the employee to seek an approximate return to work [time frame]

from a health care provider.’’ We do not disagree. The defendant, however,

did attempt to engage in the necessary interactive process, and the plaintiff

did not respond for more than two weeks.

2

In making a claim for disability discrimination, the plaintiff has the

burden to prove all three elements of the prima facie case. See Curry v.

Allan S. Goodman, Inc., supra, 286 Conn. 415. Because she has failed to

establish the second element, we need not address the plaintiff’s

remaining claims.