Kovaco v. Rockbestos-Surprenant Cable Corp.

834 F.3d 128, 32 Am. Disabilities Cas. (BNA) 1721, 95 Fed. R. Serv. 3d 860, 2016 U.S. App. LEXIS 15382, 129 Fair Empl. Prac. Cas. (BNA) 792, 2016 WL 4434396
CourtCourt of Appeals for the Second Circuit
DecidedAugust 22, 2016
Docket15-2037-cv
StatusPublished
Cited by149 cases

This text of 834 F.3d 128 (Kovaco v. Rockbestos-Surprenant Cable Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 32 Am. Disabilities Cas. (BNA) 1721, 95 Fed. R. Serv. 3d 860, 2016 U.S. App. LEXIS 15382, 129 Fair Empl. Prac. Cas. (BNA) 792, 2016 WL 4434396 (2d Cir. 2016).

Opinions

[131]*131JOSÉ A. CABRANES, Circuit Judge:

Plaintiff-appellant Josif Kovaco (“Kova-co”) appeals from a judgment of the United States District Court for the District of Connecticut (Warren W. Eginton, Judge) in part granting summary judgment to his former employer, defendant-appellee Rockbestos-Surprenant Corporation (“Rockbestos”), on his claims of hostile work environment and discriminatory discharge.

In his amended complaint, Kovaco alleged that he had been harassed at work and that his employment was terminated by Rockbestos based on his disability, Romanian national origin, and age, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”), and the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60 (“CFE-PA”).

On September 25, 2013, the District Court granted partial summary judgment to Rockbestos.1 The District Court held that Kovaco could not establish a prima facie case of discriminatory discharge under the ADA, Title VII, the ADEA, and CFEPA, because he was estopped from asserting that he was qualified for his position as a maintenance mechanic at the time his employment was terminated, due to certain factual representations he had made to the Social Security Administration (“SSA”) in successfully obtaining Social Security Disability Insurance (“SSDI”) benefits. The District Court did not address Kovaco’s purported hostile-work-environment claims, which on appeal Rock-bestos contends Kovaco never pleaded, and the District Court denied summary judgment with respect to Kovaco’s remaining claims, which were later unsuccessfully tried to a jury. Following the trial, Kovaco filed the instant appeal, challenging the District Court’s September 2013 decision granting partial summary judgment to Rockbestos.

On appeal, Kovaco argues that the District Court erred when it (1) misapplied controlling case law in holding that, due to his representations to the SSA and the SSA’s disability determination, he could not prove he was qualified for his position as of March 29, 2010, the date when his employment was terminated; and (2) overlooked Kovaco’s hostile-work-environment claims in its decision granting partial summary judgment to Rockbestos, claims that do not turn on Kovaco’s qualification.

As a threshold matter, we hold that we lack appellate jurisdiction to review so much of the District Court’s judgment as involves Kovaco’s CFEPA claim.

With respect to Kovaco’s discriminatory-discharge claims brought under the ADA, Title VII, and the ADEA, we conclude that, although the District Court’s explanation of why Kovaco was judicially estopped from asserting that he was qualified for his position was erroneous, the decision was nevertheless correct because Kovaco failed to proffer a sufficient explanation in light of the record why his assertion that he was qualified for his position was consistent with his earlier sworn statement to the SSA that he was “unable to work.” As a result, we agree with the District Court that Kovaco failed to establish a prima facie case of discriminatory discharge on summary judgment under the ADA, Title VII, and the ADEA.

Finally, we hold that to the extent Kova-co pleaded hostile-work-environment claims in his amended complaint, he subse[132]*132quently abandoned those claims in opposing Rockbestos’s motion for summary judgment in the District Court by failing to address them in his brief.

Accordingly, we AFFIRM the judgment of the District Court in its entirety, except that we DISMISS for want of appellate jurisdiction plaintiffs appeal of so much of the judgment as related to his .CFEPA claim.

Background

Rockbestos hired Kovaco in April 2005 to work as a maintenance mechanic at its East Granby, Connecticut, manufacturing facility. As a maintenance mechanic, Kova-co was responsible for maintenance and repair of Rockbestos’s machinery.

Kovaco contends that, beginning in 2008, he was subjected to discrimination at Rockbestos on the basis of his Romanian national origin. Sometime in or around the summer of 2008, Kovaco was transferred to a new shift. Shortly after he switched shifts, several of his new coworkers began making derogatory comments about his having been born in Romania. For instance, several coworkers called him names, such as “Romanian Gypsy” or “third-world countryman,” and made remarks like “go back to Romania.” One coworker also drew derogatory pictures of Kovaco with exaggerated features, one of which was labeled “old shit man.” Kovaco testified that he complained to management, but to no avail. Rockbestos declined to investigate his complaints and refused to discipline the accused employees.

In early December 2009, Kovaco sought treatment for a deteriorating medical condition in his legs and feet and provided his supervisor, Greg Miller, with a note from his doctor recommending certain light-duty restrictions. Later the same day, Ko-vaco met with Miller and human resources as well as his shift supervisor to discuss a potential accommodation consistent with the recommendations of Kovaco’s doctor. Kovaco suggested during the meeting that he would be able to perform his job functions if he had access to an electric cart as needed. Even before Kovaco notified Rock-bestos of his-medical condition, Rockbestos had provided Kovaco and members of the Maintenance Department with five electric carts and a forklift, along' with keys to each, to facilitate their navigation of the 500,000 square feet' of workspace that comprised the four-building plant. Miller and the others confirmed that Kovaco would have access to one of the electric carts as needed.

Kovaco continued to experience medical problems and took leave in January 2010 under the Family Medical Leave Act (“FMLA”). Upon his return the next month, he provided a new doctor’s note to Miller that again recommended light-duty restrictions. Kovaco testified that Miller threw the note on the ground and stated, “I don’t need one other handicap in my shop.”2 Kovaco remained on light duty and continued to use an.electric cart as necessary until his termination in March 2010.

During the night shift on March 19 and 20, 2010, Kovaco had trouble locating an electric cart to use. Earlier in the day, Miller had been advised that one of the carts had a defective battery that was unable to hold a charge, and he therefore directed a member of his maintenance staff to place an Occupational Safety and Health Administration (“OSHA”) “lock out” tag on the cart and move it to the boiler room. When Kovaco learned that a cart was in the boiler room, he entered the locked boiler room, examined the cart, and decided that the cart was functional. He [133]*133then removed the OSHA “lock out” tag so that he could use the cart for the remainder of his shift. The cart’s battery subsequently died, and Kovaco abandoned the cart before concluding his shift.

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834 F.3d 128, 32 Am. Disabilities Cas. (BNA) 1721, 95 Fed. R. Serv. 3d 860, 2016 U.S. App. LEXIS 15382, 129 Fair Empl. Prac. Cas. (BNA) 792, 2016 WL 4434396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kovaco-v-rockbestos-surprenant-cable-corp-ca2-2016.