USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-1796
RANDALL J. SOILEAU,
Plaintiff, Appellant,
v.
GUILFORD OF MAINE, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Cyr and Lynch, Circuit Judges,
______________
and McAuliffe, District Judge.*
______________
____________________
Martha S. Temple with whom Foote & Temple was on brief for
__________________ ________________
appellant.
Richard G. Moon with whom James P. Bailinson and Moon, Moss,
________________ ____________________ ___________
McGill & Bachelder, P.A. were on brief for appellee.
________________________
____________________
January 23, 1997
____________________
____________________
*Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. Randall Soileau, terminated
LYNCH, Circuit Judge.
_____________
from his employment as an industrial process engineer at
Guilford of Maine, Inc., seeks redress under the Americans
with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., and
_______
the Maine Human Rights Act, Me. Rev. Stat. Ann. tit. 5,
4551 et seq. He first claims that Guilford discriminated
________
against him because of his disability. He is disabled, he
asserts, because his diagnosed depressive disorder interferes
with his ability to interact with others. That ability, he
says, is a "major life activit[y]" which has been
"substantially limit[ed]" within the meaning of the ADA. 42
U.S.C. 12102(2). Secondly, he says, the termination of his
employment was in retaliation for his requesting a reasonable
accommodation. His claims were rejected on summary judgment
by the trial court in a carefully reasoned opinion, Soileau
_______
v. Guilford of Maine, Inc., 928 F. Supp. 37 (D. Me. 1996).
________________________
We affirm.
I
Only those facts necessary to resolve the legal
issues are outlined. The facts are described in the light
most favorable to Soileau, the party against whom summary
judgment was entered. Hoeppner v. Crotched Mountain
________ ___________________
Rehabilitation Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994)
_________________________
Soileau worked in various capacities for Guilford
from 1979 until April 22, 1994. In 1986, he began working in
-2-
2
the industrial engineering department as a time study
analyst, which involved timing various aspects of production
at Guilford. A subset of his duties involved facilitating
Process Activity Analysis ("PAA") meetings, at which ways of
improving department efficiency were discussed. In 1992,
Soileau began working for a new supervisor, Matt Earnest, who
found areas of Soileau's performance not to his liking.
Around this time, Soileau requested a pay raise which was not
granted; after this, Earnest perceived a marked deterioration
in Soileau's attitude. The relationship between Soileau and
Earnest quickly soured, with Soileau feeling that Earnest was
harassing him. While rating Soileau's work performance as
average to above average, Earnest consistently cautioned that
Soileau needed to gain credibility and the respect of his co-
workers.
On May 10, 1993, Earnest gave Soileau a verbal
warning about his negative attitude at work. Earnest
requested that Soileau elicit his co-workers' views on his
performance, which Soileau did. When Earnest asked Soileau
to come up with a plan to address the weaknesses identified
in this survey, Soileau refused, because he felt the survey
did not show any problem areas. On March 22, 1994, Earnest
instructed Soileau to train a co-worker to perform some of
Soileau's duties in preparation for expanding the PAA program
to other departments. When Soileau did not do so (because he
-3-
3
felt the request was not authorized by the pertinent plant
committees), a dispute arose between the two men.
After consulting with the company's human resources
manager, Earnest issued Soileau a "Final Written
Warning/Suspension" on March 23, 1994. This warning listed
four performance deficiencies, ordered a two day suspension,
and required Soileau to evaluate his own performance and come
back with an improvement plan. The warning said there would
be a four week period during which Soileau's performance
would be monitored. Failure to improve would lead to other
consequences, which could include job termination. Earnest
explained all of this to Soileau that day.
The final warning proved, understandably, to be
very stressful for Soileau. On March 28, Soileau told
Earnest that he had been suicidal several years earlier and
that he feared he was becoming ill again. Earnest had been
unaware of Soileau's condition; all he had known was that in
1990 Soileau had taken a disability leave for stress.
On April 6, Soileau went to see a psychologist, Dr.
Dannel Starbird, whom he had seen four years earlier during a
depressive episode which had been precipitated in part by his
deteriorating relationship with his girlfriend. In 1990, Dr.
Starbird had diagnosed Soileau with dysthymia, a chronic
depressive disorder characterized by intermittent bouts of
depression. On Dr. Starbird's advice, Soileau had sought and
-4-
4
received a five week disability leave from work. He had
returned to work without restriction and had no further
psychological counselling until just after he received the
final warning in March 1994.
Soileau told Dr. Starbird that his job was in
jeopardy. Dr. Starbird diagnosed Soileau as suffering from a
bout of depression, a condition that was probably caused by
receiving the warning. On April 7, Soileau told Earnest that
he was having a difficult time interacting with other people
and having a particularly hard time facilitating the PAA
meetings. Earnest agreed that, for the time being, Soileau
would be relieved of his responsibilities for facilitating
meetings and would mainly do clerical work. That was done.
On April 12, Dr. Starbird wrote to Guilford. The
letter asked that Soileau's work duties be "restricted so as
to avoid responsibilities which require significant
interaction with other employees," and advised that Soileau
"should not be ridiculed, provoked or startled by or in front
of supervisors or other employees."
Earnest and Soileau met on April 21; Earnest said
he felt the accommodations already made met the requests in
the doctor's letter. At no time during that meeting or the
four week trial period did Soileau present an improvement
plan to address the four points raised in the written
warning.
-5-
5
On April 22, Soileau's employment was terminated.
Earnest told Soileau it was because there had been no
improvement in the four problem areas and because Soileau had
not submitted an improvement plan. In May, Soileau began
looking for another job. He looked for full-time employment
and placed no restrictions on the type of work sought.
II
Review of entry of summary judgment is de novo.
__ ____
Wood v. Clemons, 89 F.3d 922, 927 (1st Cir. 1996).
____ _______
As the district court noted, interpretation of the
ADA and of the Maine Human Rights Act have proceeded hand in
hand, and so we discuss the ADA, which has provided guidance
to Maine courts in interpreting the state statute. Winston
_______
v. Maine Technical College Sys., 631 A.2d 70, 74 (Me. 1993),
____________________________
cert. denied, 114 S. Ct. 1643 (1994).
____________
Soileau's initial claim under the ADA depends on
his establishing that he suffers from a "disability" within
the meaning of the statute. Jacques v. Clean-Up Group, Inc.,
_______ ____________________
96 F.3d 506, 511 (1st Cir. 1996); see also 42 U.S.C.
________
12112(a). The definition of disability must be understood in
light of congressional objectives in enacting the ADA. In an
effort to eliminate discrimination against individuals with
disabilities, the statute prohibits employers from
discriminating against "a qualified individual with a
disability because of the disability." 42 U.S.C. 12112(a).
-6-
6
The antidiscrimination obligation is unusual in the context
of federal civil rights statutes. It imposes not only a
prohibition against discrimination, but also, in appropriate
circumstances, a positive obligation to make reasonable
accommodations. Absent a disability, however, no obligations
are triggered for the employer.
Only one of the ADA's three definitions of
"disability" is pertinent here: Soileau claims that he
suffered from "a physical or mental impairment that
substantially limits one or more of the major life activities
of such individual." Id. 12102(2)(A); see Katz v. City
___ ___ ____ ____
Metal Co., 87 F.3d 26, 30-31 (1st Cir. 1996).
_________
To make out a prima facie case of discrimination
based on this definition of disability, Soileau must
establish three elements: (1)that he had a "physical or
mental impairment" that (2) "substantially limits" (3) "a
major life activity." 42 U.S.C. 12102(2)(A). Soileau has
successfully shown that he met the first element; his
diagnosed dysthymia is a mental impairment within the meaning
of the statute. See 29 C.F.R. 1630.2(h)(2). However, the
___
evidence Soileau produced does not suffice, as a matter of
law, for a reasonable jury to conclude that he was
substantially impaired in a major life activity. Soileau
constructs his argument by saying that the ability to get
-7-
7
along with others is the major life activity2 in which he is
substantially impaired. The regulations promulgated by the
Equal Employment Opportunity Commission under the ADA do not
list such an ability among the exemplars of major life
activities.3 Id. 1630.2(i).
___
The concept of "ability to get along with others"
is remarkably elastic, perhaps so much so as to make it
unworkable as a definition. While such an ability is a skill
to be prized, it is different in kind from breathing or
walking, two exemplars which are used in the regulations.
Further, whether a person has such an ability may be a matter
of subjective judgment; and the ability may or may not exist
depending on context. Here, Soileau's alleged inability to
interact with others came and went and was triggered by
vicissitudes of life which are normally stressful for
ordinary people -- losing a girlfriend or being criticized by
a supervisor. Soileau's last depressive episode was four
____________________
2. Although Soileau also argued to the district court that
his ability to work was the major life activity that had been
impaired, he has not pursued this claim on appeal. In any
event, this claim would fail because he has not shown he is
unable to work. See 29 C.F.R. 1630.2(j)(3).
___
3. The EEOC Compliance Manual does list interacting with
others as a major life activity. EEOC Compliance Manual
(CCH) 902.3, 6883, at 5311 (1995). While this court has
found reference to the EEOC Compliance Manual to be helpful
on occasion, see, e.g., Katz, 87 F.3d at 31, the manual is
___ ____ ____
hardly binding. Cf. Schmidt v. Safeway Inc., 864 F. Supp.
___ _______ ___________
991, 1001 (D. Or. 1994) (noting that the EEOC Technical
Assistance Manual "is not law" and "does [not] have the force
of law").
-8-
8
years earlier, and he had no apparent difficulties in the
interim. To impose legally enforceable duties on an employer
based on such an amorphous concept would be problematic. It
may be that a more narrowly defined concept going to
essential attributes of human communication could, in a
particular setting, be understood to be a major life
activity, but we need not address that question here.
But even assuming, dubitante, that a colorable
_________
claim may be made that "ability to get along with others" is
or may be (on specific facts) a major life activity under the
ADA, the evidence here does not show any substantial
limitation. Under the relevant ADA regulation an individual
faces a "substantial limitation" when he is:
(i) Unable to perform a major life
activity that the average person in the
general population can perform; or
(ii) Significantly 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.
Id. 1630.2(j)(l). One factor to be considered in
___
determining whether an individual is substantially limited in
a major life activity is "the nature and severity" of the
impairment. Id. 1630.2(j)(2)(i). The evidence does not
___
establish that Soileau had particular difficulty in
interacting with others, except for his supervisor.
-9-
9
Impairment is to be measured in relation to normalcy, or, in
any event, to what the average person does. Soileau claims
he had to leave pubs and stores when they became crowded.
But there is nothing extraordinary about preferring uncrowded
places. Soileau performed his normal daily chores, went
grocery shopping, and visited pubs. That he left pubs and
stores when he felt there were too many people does not
establish that the nature and severity of his impairment were
substantial.
Another factor to be considered is the expected
duration of the impairment. Id. 1630.2(j)(2)(ii). While
___
Dr. Starbird believes that Soileau's underlying disorder
(dysthymia) will be a life-long condition, Soileau has failed
to adduce any evidence that his impairment -- the acute,
episodic depression -- will be long-term. His last
depressive episode, in 1990, required only a five week work
absence before he was able to return to his duties without
restriction. During the 1994 episode, Dr. Starbird
suggested, at most, that Soileau not have to run meetings for
a four month period. Considering these factors both
separately and together, Soileau has not met his burden. The
impairment must be a significant one to trigger the Act's
obligation.
III
-10-
10
Soileau asserts an independent claim that his
employment was terminated in retaliation for his requesting
an accommodation. He may assert such a claim even if the
underlying claim of disability fails. Mesnick v. General
_______ _______
Elec., Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied,
___________ ____________
504 U.S. 985 (1992).
The ADA prohibits discrimination against an
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).
It is questionable whether Soileau fits within the
literal language of the statute: he filed no charge, nor
participated in any investigation. Moreover, he did not
literally oppose any act or practice, but simply requested an
accommodation, which was given. It would seem anomalous,
however, to think Congress intended no retaliation protection
for employees who request a reasonable accommodation unless
they also file a formal charge. This would leave employees
unprotected if an employer granted the accommodation and
shortly thereafter terminated the employee in retaliation.
And so, without addressing the issue any further, we will
assume arguendo that Soileau's request brings him within the
________
coverage of 42 U.S.C. 12203(a).
-11-
11
The ADA incorporates the procedures and enforcement
mechanisms of Title VII, the basic statute prohibiting
discrimination in employment. See id. 12117(a).
___ ___
Accordingly, guidance on the proper analysis of Soileau's ADA
retaliation claim is found in Title VII cases. Carparts
________
Distrib. Ctr., Inc. v. Automotive Wholesaler's Assoc. of New
____________________ _____________________________________
England, Inc., 37 F.3d 12, 16 (1st Cir. 1994).
_____________
By analogy to Title VII, to establish a claim of
retaliation Soileau must show that he was engaged in
protected conduct, that he was discharged, and that there was
a causal connection between the discharge and the conduct.
Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (per
_____ ______________
curiam); Hoeppner, 31 F.3d at 14.
________
Soileau relies primarily on the timing of events,
saying he was discharged right after he asked for an
accommodation. True enough. But that narrow focus ignores
the larger sequence of events and also the larger truth. The
larger picture undercuts any claim of causation.
Soileau was disciplined and warned of discharge if
his performance did not improve and if he did not submit a
performance plan. The discipline and warning happened before
Guilford ever knew that Soileau was asserting he was
presently disabled and before Soileau asked for the
-12-
12
accommodation of not running meetings.4 Accordingly, that
discipline and explicit warning could not have been
motivated, even in part, by a request for an accommodation.5
There is no other evidence tending to support the
retaliation claim. Soileau admitted at his deposition that
he never formulated any improvement plan for Earnest. He had
been told that termination was a possible outcome if he did
not submit a plan. On appeal, Soileau argues that his
seeking psychological counselling was, in essence, an
improvement plan. If so, he never said that to his employer,
who knew only that no plan had been provided. Further, it is
undisputed that in the interim Guilford did provide the
accommodation which Soileau and his psychologist requested.
Soileau no longer had to run meetings. Evidence that an
employer willingly granted an employee's request for an
accommodation, though by no means dispositive of the matter,
____________________
4. Soileau had not claimed earlier that he was disabled and
the employer is not put on notice of a present disability
merely because an employee some years in the past has taken
medical leave or has sought psychological counselling.
5. A danger of the line of argument presented by Soileau is
that it would permit an employee already on notice of
performance problems to seek shelter in a belated claim of
disability. The ADA was not meant to prevent employers from
taking steps to address poor performance by non-disabled
employees. As Judge Sporkin has said in rejecting an ADA
retaliation claim, "To allow the antidiscrimination laws to
be used by poorly performing employees will eventually work
to the detriment of those who have a legitimate need for the
protection of the laws." Henry v. Guest Servs., Inc., 902
_____ __________________
F. Supp. 245, 254 (D.D.C. 1995), aff'd, 98 F.3d 646 (D.C.
_____
Cir. 1996).
-13-
13
tends to militate against making an inference of retaliation
in a case like this one.
In short, the timing dictates against concluding
that the request for accommodation caused the termination,
and nothing else provides evidence from which such an
inference may be drawn. While the discipline of termination
was swift, and even harsh, the evidence does not support a
retaliation claim.
The entry of summary judgment for the defendant is
affirmed.
________
-14-
14
