RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JANET BOND ARTERTON, District Judge.

Defendant Stop & Shop Supermarket Co. LLC ("Stop & Shop") moves [Doc. # 30] for summary judgment on Plaintiff Hollie Gaither's claims under the Connecticut Fair Employment Practices Act ("CFEPA") for failure to grant her a reasonable leave of absence or to make a reasonable effort to transfer her to a suitable temporary position in order to accommodate her disability resulting from pregnancy and wrongful termination because of her pregnancy.1 For the reasons that follow, Defendant's motion is denied.

I. Facts

Plaintiff began working at a Stop & Shop supermarket in Glastonbury, Connecticut in October 2011 as a part-time floral clerk, cashier, bagger, and self-scan monitor, working approximately 15 to 25 hours per week. (Gaither Dep., Ex. 4 to Def.'s Loc. R. 56(a)1 Stmt. [Doc. # 32] at 74-76.) As a part-time employee, Ms. Gaither was not entitled to benefits, such as health insurance or paid leave. (Id. at 184-85.) In January 2012, Ms. Gaither became pregnant and immediately notified Jim Fusco and Lynn Nelson, assistant store managers, who both responded by congratulating her. (Id. at 83-87.) Plaintiff continued her normal duties while pregnant, however, in June 2012, she started to suffer from extreme back pain as a result of her pregnancy and her doctor restricted her from lifting objects greater than fifteen pounds. (Id. at 93, 109, 147-48.) Ms. Gaither presented Ms. Nelson with a note from her obstetrician, dated June 4, 2012 (Ex. 11 to Def.'s 56(a)1), noting the weight restriction (Gaither Dep. at 112).

Prior to this date, Plaintiff had not had any problems with Ms. Nelson, but after-wards Ms. Nelson would on an almost daily basis assign her tasks that required her to exceed her lifting restriction. When Ms. Gaither would remind Ms. Nelson of the lifting restriction, Ms. Nelson would respond by saying that "[w]e have a business to run" or "you need to do it, this is the job, you have to do your job" or she would just ignore Plaintiff, making a "huff noise" and storm away. (Id. at 32, 28, 119-20.)

In July 2012, the final month of Ms. Gaither's pregnancy, her back pain became even more severe and she had to call out sick for several days. (Id. at 151-52.) On July 28, 2012, Ms. Gaither presented Ms. Nelson with a doctor's note from two days prior that memorialized her appointment (Ex. A to Pl.'s Loc. R. 56(a)2 Stmt. [Doc. # 38]), but did not contain any further medical restrictions or diagnosis. Ms. Nelson responded, "I don't care what you're going through, what type of pain, we have a business to run, and you have a job to do." (Gaither Dep. at 156.) Ms. Nelson, Ms. Gaither, and the store manager, Bill Haberern, then had a meeting in Mr. Haberern's office in which Ms. Nelson explained Ms. Gaither's lifting restriction. Mr. Haberern had apparently been unaware of the lifting restriction previously and upon learning of it, he said that Ms. Gaither should have been terminated as soon as she submitted the doctor's note with the restriction and explained to Ms. Gaither that she would now have to be "terminated." (Gaither Dep. at 164-65.) Ms. Gaither asked if she could instead take medical leave, but Mr. Haberern explained that she was not eligible under company policy because she had not worked for the company for a year. Mr. Haberern said that she was welcome to return to the company when she was ready, but Ms. Gaither contends that she was told that she would need to apply for her position again and there was no guarantee that there would be an open position or that she would be rehired. (Nelson Dep., Ex. 7 to Def.'s 56(a)1 at 60-62; Gaither Dep. at 174.)

Ms. Gaither asked Mr. Haberern to draft a letter memorializing her termination. (Gaither Dep. at 174.) In a letter dated July 30, 2012, Mr. Haberern wrote:

(Haberern Ltr., July 30, 2012, Ex. 17 to Def.'s 56(a)1.)

Two weeks later, on August 12, 2012, Ms. Gaither gave birth and was medically able to resume work thereafter. However, she never reapplied to work at Stop & Shop explaining that she did not feel that she was welcome to return given that Mr. Haberern had fired her rather than providing her with a leave of absence as she requested. (Pl.'s Resps. to Def.'s Interrogs., Ex. 18 to Def.'s 56(a)1 at 7-8; Gaither Dep. at 176, 182-84.)

After losing her job, Plaintiff was unable to afford her rent and was evicted from her apartment shortly after she gave birth. (Gaither Dep. at 43-44.) Although Ms. Gaither would have been without income even if she had been granted the unpaid leave of absence that she requested, she contends that her termination caused her eviction, because an employee of her landlord said that because the landlord did not know how long it would take Ms. Gaither to find another job, the landlord would have to evict her for nonpayment of the rent whereas if she was just on leave he could have "worked with" her. (Id. at 202-03, 205.) After being evicted, Ms. Gaither and her husband became homeless and moved to South Carolina to stay with his family for a time. However, in January 2013, the family told Ms. Gaither and her husband that they had to leave and they wound up living in a homeless shelter. (Id. at 208-09.)

II. Discussion2

Although pregnancy discrimination claims are generally analyzed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) framework, "the McDonnell Douglas framework does not apply where, for example, a plaintiff is able to produce direct evidence of discrimination." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Here, there is no factual dispute that Plaintiff was terminated because of her pregnancy-related medical restrictions and the primary question is a legal one: whether this termination was prohibited under CFEPA. Cf. Craine v. Trinity Coll., 259 Conn. 625, 637, 791 A.2d 518 (2002) ("[The McDonnell Douglas] methodology is intended to provide guidance to fact finders who are faced with the difficult task of determining intent in complicated discrimination cases. It must not, however, cloud the fact that it is the plaintiff's ultimate burden to prove that the defendant intentionally discriminated against her because of her sex.").

Defendant contends that this termination was not discriminatory under CFEPA because Plaintiff's "lifting restriction rendered her unable to perform the essential functions of her job" and "terminating a woman's employment because she is unable to perform essential job functions as a result of pregnancy complications does not constitute pregnancy discrimination"3 and "[t]here is no evidence suggesting that Stop & Shop treated Plaintiff differently from any non-pregnant employees with similar physical limitations." (Def.'s Mem. Supp. [Doc. # 31] at 9-12.)

Defendant's exclusive reference to Title VII cases in support of its arguments is misplaced here because, while the Connecticut Supreme Court has "often looked to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute," it has "also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject." State v. Comm'n On Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989) (internal quotation marks omitted). Thus, while in many instances there are "similarities between Title VII and the Connecticut law, ... the state statute contemplates broader relief than its federal counterpart." Graham v. State of N.Y., Dep't of Civil Serv., 907 F.2d 324, 327 (2d Cir.1990) (interpreting Title VII and distinguishing Connecticut law); see also Murphy v. Robert Burgess & Norwalk Econ. Opportunity Now, Inc., No. 3:96CV01987 (AHN), 1997 WL 529610, at *4 (D.Conn. July 16, 1997) ("CFEPA is, in many respects, stronger than the federal act, and ... the difference between the state and federal acts was purposeful and is meaningful.").

Under Title VII, pregnancy discrimination is defined as a form of gender-based discrimination and prohibited on this basis. See O'Bar v. Borough of Naugatuck, No. CIV.3:01CV867(PCD), 2002 WL 32769183, at *4 n. 6 (D.Conn. Dec. 3, 2002) ("The Pregnancy Discrimination Act, codified at 42 U.S.C. § 2000e(k), is not a basis for [a] claim independent of Title VII's prohibition against gender discrimination."). Title VII provides:

42 U.S.C. § 2000e-2(a)(1). Originally, there was no provision in Title VII specifically protecting pregnant employees, but with the Pregnancy Discrimination Act of 1978 ("PDA"), 42 U.S.C. § 2000e(k), Congress amended the definition of gender-based discrimination under Title VII to include pregnancy:

42 U.S.C. § 2000e(k).

It is "well established" that the PDA was passed in reaction to the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), which held that it was not discrimination "because of sex" for a company's disability plan to provide coverage during a period of disability resulting from nonoccupational causes but to exclude from coverage disability arising from pregnancy. Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 678, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983). The Gilbert dissenters argued that the company's plan, which was intended to provide employees with protection against the risk of uncompensated unemployment caused by physical disability, discriminated on the basis of sex by giving men protection for all categories of risk but giving women only partial protection. Thus, the dissenters asserted that the statute had been violated because conditions of employment for females were less favorable than for similarly situated males. See Gilbert, 429 U.S. at 155, 97 S.Ct. 401 (Brennan, J., dissenting).

When Congress passed the PDA, "it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision," and many of the bill's proponents "expressly agreed with the views of the dissenting Justices" from Gilbert. Id. at 678-79, 103 S.Ct. 2622. The second clause of § 2000e(k) providing that pregnant women must be treated the same as non-pregnant workers who are "similar in their ability or inability to work," "explains the application of the general principle to women employees," Newport News Shipbuilding, 462 U.S. at 679 n. 14, 103 S.Ct. 2622. Read in this context, the PDA "makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions" "because only women can become pregnant." Id. at 684, 103 S.Ct. 2622.

The "PDA does not require employers to extend any benefits to pregnant women that they do not already provide to other disabled employees," California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 286, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), but rather provides that "women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job," UAW v. Johnson Controls, Inc., 499 U.S. 187, 204, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). Thus, a Title VII plaintiff must prove that "she was treated less favorably than a nonpregnant employee under identical circumstances and that her pregnancy was the reason she was treated less favorably." 4 Piraino v. Int'l Orientation Res., Inc., 137 F.3d 987, 990 (7th Cir.1998) (internal quotation marks and alterations omitted).

By contrast, under CFEPA, pregnancy discrimination is not defined as a form of gender discrimination, which is separately addressed in Conn. Gen.Stat. § 46a-60(a)(1), but rather CFEPA has specific provisions requiring accommodation of pregnant employees:

Conn. Gen.Stat. § 46a-60(a)(7).5

In California Fed. Sav. & Loan Ass'n, the Supreme Court upheld a California law, similar to CFEPA, which provided greater protection to pregnant women than Title VII by "establish[ing] benefits that employers must, at a minimum, provide to pregnant workers," including maternity leave and guaranteed reinstatement. 479 U.S. at 291, 107 S.Ct. 683; cf. Piraino, 84 F.3d at 274 ("The PDA . . . . does not impose an affirmative obligation on employers to offer maternity leave or to take other steps to assist pregnant workers, but it does require the employer to treat the employee as well as it would have if she were not pregnant.").

The Supreme Court noted that when Congress was debating the PDA, it "was aware of [preexisting] state laws" including CFEPA, but did not consider them to be a form of "reverse discrimination" against men that would themselves violate Title VII. California Fed. Sav. & Loan Ass'n, 479 U.S. at 287 & n. 24, 107 S.Ct. 683 (citing Conn. Gen.Stat. § 46a-60(a)(7)). Rather, "Congress intended the PDA to be a floor beneath which pregnancy disability benefits may not drop-not a ceiling above which they may not rise." Id. at 285, 107 S.Ct. 683; see also 42 U.S.C. § 2000e-7.

CFEPA "on its face indicates that Connecticut has exercised this prerogative" to provide pregnant employees with greater protection than Title VII does. Zamore v. Dyer, 597 F.Supp. 923, 928 (D.Conn.1984). Thus, even if Defendant is correct that "[t]here is no evidence suggesting that Stop & Shop treated Plaintiff differently from any nonpregnant employees with similar physical limitations" (Def.'s Mem. Supp. at 10), this argument is beside the point because CFEPA requires employers to provide certain benefits and protections for pregnant employees, such as "a reasonable leave of absence for disability resulting from her pregnancy," § 46a-60(a)(7)(B), and "a reasonable effort to transfer a pregnant employee to any suitable temporary position," § 46a-60(7)(E). Cf. Fenn Mfg. v. Comm'n on Human Rights & Opportunities, No.CIV. CV 92-509435, 1994 WL 51143, at *15 (Conn.Super.Ct. Feb. 8, 1994) ("The statute thus empowers workers who wish both to work during pregnancy and to avoid maternal and fetal hazards in the workplace to do so by having reasonable options to continue working elsewhere to avoid those hazards.").

Defendant acknowledges that it "did not formally grant Plaintiff a leave of absence" but contends that "the result was indistinguishable" because as a result of her termination, she did not work the last two weeks of her pregnancy, and with Mr. Haberern's July 30, 2012 letter stating that he "was looking forward to having [Plaintiff] back, when she is back to 100%," "Plaintiff's situation would have been no different if Stop & Shop had called the period between July 28 and August 12 a leave of absence instead of a termination with an invitation to return."6 (Def.'s Mem. Supp. at 13.) Plaintiff counters that her "termination was not indistinguishable from a leave of absence" because she was told only that "she might be rehired in the future if there was a position available." (Pl.'s Opp'n [Doc. # 37] at 17-18.) Contrary to Defendant's assertions, termination with only a non-binding vague statement that the employer "was looking forward to having [Plaintiff] back" is not the equivalent of granting a leave of absence. Defendant's argument is belied by the text of CFEPA which prohibits an employer from refusing "to grant to that employee a reasonable leave of absence," § 46a-60(a)(7)(B), and explicitly prohibits termination "because of" an employee's pregnancy, § 46a-60(a)(7)(A).

Additionally, under CFEPA an employee on maternity leave is generally entitled to reinstatement "to her original job or to an equivalent position with equivalent pay and" benefits, Conn. Gen.Stat. § 46a-60(a) 60(a)(7)(D), which is a protection that would not be afforded to an employee who is denied such leave and thus there is plainly a significant difference between being granted leave under CFEPA and being terminated. See Zamore, 597 F.Supp. at 927 ("Unlike Title VII, [§ 46a-60(a)(7)(D)] explicitly provides that a[n] ... employer must reinstate an employee to her original or an equivalent position following maternity leave, if one is granted.").

In Zamore, the court held that an employer did not comply with the statutory requirement of reinstatement under § 46a-60(a)(7)(D), when the plaintiff was terminated while on maternity leave and the employer later "invited" her to apply for another position because "an invitation to apply for a possible job is not the same as the statutorily mandated placement in an equivalent position." 597 F.Supp. at 925 n. 1.

Defendant does not discuss any § 46a-60(a)(7)(B) case law and simply maintains that there was no effective difference between offering Plaintiff leave and terminating her with the understanding that she could be rehired.7 (Reply [Doc. # 39] at 4.) Given that Defendant's argument is not supported by the clear text or statutory framework of the relevant CFEPA provisions, and because a factfinder could credit Plaintiff's statement that she was denied leave and never told that she was guaranteed to be rehired after termination, Defendant is not entitled to summary judgment on the denial of leave claim.

These same facts could also support a wrongful termination claim. For example, in Davis v. Manchester Health Ctr., Inc., 88 Conn.App. 60, 64, 867 A.2d 876 (2005), a nurse informed her supervisor that a physically-demanding assignment that she had been given presented a risk to her health and that of her unborn child and requested another less physically demanding assignment. The supervisor refused to reassign her, even though such an assignment was available, and the plaintiff left her shift rather than accept the demanding assignment and was later terminated. Id. Upholding a jury verdict for the plaintiff, the court held that § 46a-60(a)(7)(A) could be violated when an employee was terminated "for choosing to leave her shift rather than to remain in an assignment she reasonably believed posed a risk to her health and that of her unborn child" and that the "jury reasonably could have found, therefore, that a direct nexus existed between the plaintiff's pregnancy and the defendant's termination of the plaintiff's employment." Id. Here, too a jury could reasonably determine that Plaintiff's termination was the result of Defendant's failure to provide her with pregnancy leave and thus Defendant is not entitled to summary judgment on the wrongful termination claim.

Defendant contends that the failure to transfer claim fails because "there is no evidence suggesting that either Stop & Shop or Plaintiff believed that her continued employment in her existing positions—floral clerk and cashier—might cause injury to Plaintiff or her fetus." (Def.'s Mem. Supp. at 15.) However, this argument is contradicted by the premise of Defendant's defense to this case, which is that due to the 15-pound lifting restriction Plaintiff "was not qualified for the floral clerk or cashier positions at that time." (Id. at 9.) Clearly, if Plaintiff's job required her to exceed a medically-imposed lifting restriction, then continuing in such a position could "cause injury to the employee or fetus." Conn. Gen.Stat. § 46a-60(a)(7)(E). Second, Defendant contends that, at the time of her termination, there was not a suitable position to which Plaintiff could have been transferred because she did not believe that she could have continued working. However, at oral argument, Plaintiff clarified that she does not claim a failure to transfer on the date of her termination when she instead sought pregnancy leave, but rather claims a failure to transfer starting on June 5, 2012, when the weight restriction was imposed. Plaintiff acknowledges that she never specifically requested a transfer to another position, but she contends that after she advised Ms. Nelson of her lifting restriction, Ms. Nelson nevertheless demanded on an almost daily basis that Plaintiff perform tasks requiring her to exceed this lifting restriction. (Gaither Dep. at 27.) Therefore, a jury could reasonably conclude that by keeping Plaintiff in an assignment with a written job description that required her to lift in excess of her medical restriction and demanding that Plaintiff in fact exceed her lifting restriction, she was effectively denied a transfer. Thus, Defendant's Motion for Summary Judgment is denied as to the failure to transfer claim.

A. Summary Judgment as to Remedies

Finally, Defendant moves for summary judgment on Plaintiff's claimed remedies.8 Defendant contends that its invitation to Plaintiff to reapply for her position and her failure to do so precludes an award of damages for back or front pay.9 (Def.'s Mem. Supp. at 16-17.) However, as discussed above, Defendant's offer was not unconditional, and Comm'n on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996), cited by Defendant, was a failure to reinstate claim under § 46a-60(a)(7)(D), which is not asserted by Plaintiff here, and in any event held only that the award of back pay was "discretionary rather than mandatory," not that the failure to reapply precluded an award of back pay as a matter of law.10 Likewise, as to front pay, the case cited by Defendant makes clear that "[a]n award of front pay is a form of equitable relief, which is a matter for the trial judge's equitable discretion," Shaw v. Greenwich Anesthesiology Assocs., P.C., 200 F.Supp.2d 110, 114 (D.Conn.2002) (citing Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir. 1984)), and thus is not appropriately decided at this juncture.

Defendant also asserts as an affirmative defense (see Def.'s Ans. & Aff. Defenses [Doc. # 14] at 6) that Plaintiff failed to mitigate damages because she did not apply to work at other supermarkets once she moved to South Carolina. Because failure to mitigate is an affirmative defense, "an employer seeking to avoid a lost wages award bears the burden of demonstrating that a plaintiff has failed to satisfy the duty to mitigate." Broadnax v. City of New Haven, 415 F.3d 265, 268 (2d Cir.2005). While a "discharged employee must `use reasonable diligence in finding other suitable employment,'" it "need not be comparable to their previous positions." Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir.1998) (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 & n. 15, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982)). It is undisputed that Plaintiff applied to "ten to [fifteen] jobs every week" (Gaither Dep. at 190) and it is not material that Plaintiff did not apply to work at other supermarkets. Therefore, Defendant has not established it is entitled to summary judgment on this affirmative defense.

Finally, Defendant contends that Plaintiff should be precluded from recovering for emotional distress because she has contended in her Damages Analysis (Ex. 23 to Def.'s 56(a)1 at 2) that her emotional distress was "based on her homelessness in early 2003" and she cannot prove that Defendant proximately caused her homelessness beyond terminating her and her income.11 (Def.'s Mem. Supp. at 18.) However, proximate cause "is ordinarily a question of fact" and it is for a jury to decide whether Plaintiff's termination was "a substantial factor in the resulting harm."12 Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383-84, 441 A.2d 620 (1982).

Plaintiff has adduced sufficient evidence from which a jury could do so. Asked at her deposition to describe "the emotional distress you believe you suffered as a result of your issues with Stop & Shop that you described in your complaint," Plaintiff responded that being terminated was "devastating at the time, because I believed that they were going to give me a leave of absence" and did not anticipate being terminated. (Gaither Dep. at 208-09.) Thus, a jury could reasonably conclude that Plaintiff's emotional distress was proximately caused by Defendant terminating her when she justifiably believed that her employer would grant her leave as required by CFEPA.

III. Conclusion

For the reasons set forth above, Defendant's Motion [Doc. # 30] for Summary Judgment is DENIED.