JOHN A. WOODCOCK, Jr., Chief Judge.
Because a former employee of a construction company failed to make out a prima facie case that he was terminated in violation of either the association or retaliation provision of the Americans with Disabilities Act (ADA), the Court grants his employer's motion for summary judgment.
On December 19, 2009, Gregory Leavitt filed a complaint against SW & B Construction Company (SW & B) in Somerset County Superior Court, alleging a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and multiple violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Notice of Removal (Docket # 1) at Attach. 1, State Court Compl. On January, 10, 2010, SW & B removed this case to United States District Court. Notice of Removal. On April 13, 2010, Mr. Leavitt filed an amended complaint, which alleged the same violations as the initial complaint. First Am. Compl. (Docket # 12) (Compl.). On August 11, 2010, SW & B moved for summary judgment on all claims. Def. SW & B Construction Co.'s Mot. for Summ. J. (Docket # 16) (Def.'s Mot.). On September 20, 2010, Mr. Leavitt responded in opposition to SW & B's motion for summary judgment. Pl.'s Mem. of Law in Opp'n. to Def.'s Mot. for Summ. J. (Docket # 23) (Pl.'s Opp'n.). On September 28, 2010, SW & B replied to Mr. Leavitt's opposition. Def.'s Reply Mem. in Supp. of Mot. for Summ. J. (Docket # 30) (Def.'s Reply).
At oral argument on February 11, 2001, Mr. Leavitt's counsel raised issues that had not been fully briefed, including the impact of Thompson v. North American Stainless, LP, ___ U.S. ___, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011), a case the United States Supreme Court decided on January 24, 2011, and the effect of Quint v. Staley Mfg., Co., 172 F.3d 1 (1st Cir. 1999) on the pending motion. The Court suggested that counsel file post-hearing memoranda and they did so. Pl.'s Post-Arg. Mem. of Law on Def.'s Mot. for Summ. J. (Docket # 42) (Pl.'s Post-Arg. Mem.); (Def.'s Resp. to Pl.'s Post-Argument Mem.) (Docket # 43) (Def.'s Resp.).
From 1995 until the end of 2006, Mr. Leavitt worked as a safety director
From 1995 to 2007, Mr. Morgan repeatedly approved pay increases for Mr. Leavitt and consistently evaluated his performance positively. PSAMF ¶¶ 33-38; DRPSAMF ¶¶ 33-38. During that same period, BE & K published articles praising his work and the work of other employees for achieving recognition from OSHA. PSAMF ¶ 39; DRPSAMF ¶ 39. In a 2005 article, Bob Fitzgerald, BE & K's corporate safety manager, stated, "Ken Morgan, site manager, and Greg Leavitt, safety manager, have done a great job." PSAMF ¶ 39; DRPSAMF ¶ 39.
In July 15, 2002, Mr. Leavitt's wife, Tally Leavitt, who worked as an expediter for BE & K Construction, suffered a work-related injury to her right arm. PSAMF ¶ 43; DRPSAMF ¶ 43. As safety director, Mr. Leavitt assigned Ms. Leavitt to light clerical work and cleaning tasks in the office. PSAMF ¶ 44; DRPSAMF ¶ 44. Ms. Leavitt was laid off in October 2002 and was not recalled in December 2002 when other laid off employees were recalled. PSAMF ¶ 44; DRPSAMF ¶ 44. In May 2003, Ms. Leavitt filed a claim for workers' compensation benefits against BE & K Construction. PSAMF ¶ 45; DRPSAMF ¶ 45. In October 2003, she filed a petition for award of workers' compensation benefits and a petition to remedy
Valerie Camp, in-house counsel for BE & K, handled the legal aspects of workers' compensation claims against the company. PSAMF ¶ 40; DRPSAMF ¶ 40. Mr. Morgan oversaw the reporting of claims at the Jay site, and ensured that injured workers received medical treatment and that information went to the right people. PSAMF ¶ 41; DRPSAMF ¶ 41. Mr. Leavitt was responsible for managing employees' claims for workers' compensation, including helping them receive medical treatment, ascertaining their restrictions, and communicating with Ms. Camp and insurance claims managers. PSAMF ¶ 42; DRPSAMF ¶ 42.
Ms. Camp communicated with Mr. Morgan regarding Ms. Leavitt's workers' compensation claim and informed him that Ms. Leavitt had a claim pending.
In December 2003, Ms. Leavitt's attorney listed Mr. Leavitt as one of her witnesses at a May 24, 2004 workers' compensation hearing. PSAMF ¶ 49; DRPSAMF ¶ 49. Mr. Leavitt understood that he was to testify about Ms. Leavitt's restrictions and what he and BE & K did regarding those restrictions. PSAMF ¶ 50; DRPSAMF ¶ 50. BE & K also listed Mr. Leavitt as well as office manager Lucille Partridge as witnesses on its behalf. PSAMF ¶ 51; DRPSAMF ¶ 51. Sometime before the hearing, Mr. Leavitt expressed concern to corporate safety director, Rich Baldwin, and to Mr. Fitzgerald about the impact on his job of his involvement in Ms. Leavitt's case. PSAMF ¶ 52; DRPSAMF ¶ 52. He asked whether he would still have a job if he testified or if his wife settled her claim. PSAMF ¶ 52; DRPSAMF ¶ 52. Mr. Baldwin informed Mr. Leavitt that the claim was handled by the legal department but that his involvement was not going to affect his job. PSAMF ¶ 53; DRPSAMF ¶ 53. The day before the May 24, 2004 hearing, Mr. Morgan came into Mr. Leavitt's office and asked Mr. Leavitt what he was going to say at the hearing.
At the May 24, 2004 hearing, Mr. Leavitt testified in support Ms. Leavitt's workers' compensation claim. PSAMF ¶ 56; DRPSAMF ¶ 56. Among other things, he testified that Mr. Morgan and others pressured him to return Ms. Leavitt to work in her regular job rather than in alternative assignments, and that there were alternative
In 2005, Ms. Leavitt petitioned for increase of benefits due to increasing incapacity. PSAMF ¶ 59; DRPSAMF ¶ 59. That petition was set for hearing at several dates in 2006 and 2007. PSAMF ¶ 59; DRPSAMF ¶ 59. On August 10, 2006, Counsel for BE & K Construction was informed that Mr. Leavitt would be called as a witness to testify to Ms. Leavitt's inability to use her arms to perform household chores, to Mr. Leavitt's knowledge of light duty work at BE & K, and to Mr. Leavitt's inquiries to BE & K about whether work was available for Ms. Leavitt. PSAMF ¶ 63; DRPSMF 63.
From 2006 continuing through at least June 2008, Ms. Leavitt had cumulative trauma disorder of her upper right extremity, tendinitis including flexor pollicis longus and DeQuervain's, myofacial pain syndrome, and median radial nerve irritation. PSAMF ¶ 60; DRPSAMF ¶ 60. Her health condition substantially limited her ability to perform manual work, to care for and dress herself, to drive, and to perform household chores. PSAMF ¶ 61; DRPSAMF ¶ 61. Dr. Peter Esponnette testified that Ms. Leavitt's chronic pain condition substantially limited her ability to perform her job as truck driver and expediter, and substantially limited her ability to perform any other jobs that required manual tasks.
Before a September 2007 hearing on the petition to increase Ms. Leavitt's benefits, Mr. Leavitt informed either Mr. Morgan or Ms. Partridge that he needed to testify at a hearing and had to take a day off. PSAMF ¶ 62; DRPSAMF ¶ 67; Leavitt Dep. 94:1795:9. At the hearing on September 12, 2007, he testified as to Ms. Leavitt's increasing incapacity, increasing pain, depression, and difficulty performing household chores and caring for herself. PSAMF ¶ 68; DRPSAMF ¶ 68.
On November 21, 2007, the Workers' Compensation Hearing Officer issued a decision, finding that Ms. Leavitt's incapacity had increased and awarding her 100% partial incapacity benefits retroactive to October 31, 2006, thus increasing her benefits. PSAMF ¶ 71; DRPSAMF ¶ 71. The decision was delivered to Ms. Partridge at SW & B. PSAMF ¶ 72; DRPSAMF ¶ 72. Between January 2008 and June 2008, Ms. Leavitt's counsel negotiated with BE & K's counsel and insurer over the potential settlement of her workers' compensation claim. PSAMF ¶ 73; DRPSAMF ¶ 73.
BE & K, Inc. provided workers' compensation insurance coverage to SW & B, and the two companies had the same workers' compensation insurer. PSAMF ¶ 74; DRPSAMF ¶ 74. SW & B's legal department received notice of the November 2007 decree on Mrs. Leavitt's claim for increased benefits, as well as the proposed settlement of that claim. PSAMF ¶ 66; DRPSAMF ¶ 66. After SW & B assumed operation of the Jay site in January 2007, Ms. Partridge kept a file on Ms. Leavitt's workers' compensation case, even though Ms. Leavitt no longer worked there and it was not Ms. Partridge's job to keep files on employees who had workers' compensation claims.
An employer's Experience Modification Rating (EMR) is one of the criteria for a business winning new business and repeat business. PSAMF ¶ 76; DRPSAMF ¶ 76. A low EMR drives down the cost of doing business. PSAMF ¶ 76; DRPSAMF ¶ 76. An EMR is negatively impacted by the payment of workers' compensation claims. PSAMF ¶ 76; DRPSAMF ¶ 76. SW & B's
SW & B maintained several sets of records on its injury rates, incidence rates, and total incident rates.
Between January 2008 and March 31, 2008, three SW & B Employees
On March 13, 2008, Injured B fell from a ladder at work and injured his left foot and ankle. PSAMF ¶ 83; DRPSAMF ¶ 83. On March 18, 2008, Dr. Samuel Scott, a surgeon, diagnosed Injured B with a fractured left fibula and instructed Injured B to stay home from work for two weeks.
On June 11, 2008, SW & B laid off Injured B, citing a reduction in force. PSAMF ¶ 88; DRPSAMF ¶ 88. Injured B was the only employee in the electrical department laid off; other electricians in the department with less seniority kept
On March 27, 2008, Injured C, an expediter, was injured at the work site when he slipped on ice, fell, and hit his head on a backhoe bucket. PSAMF ¶ 91; DRPSAMF ¶ 91. SW & B's analysis of the cause of the accident attributed it to the failure of the mill owner, Verso, to remove ice and snow from the job site. PSAMF ¶ 91; DRPSAMF ¶ 91. After treating Injured C at a hospital, a physician's assistant prescribed certain work restrictions and noted an expected return to work in one to four days. PSAMF ¶ 92; DRPSAMF ¶ 92. For a couple of days after his injury, SW & B had Injured C sit in an office in the safety department instead of performing his regular duties. PSAMF ¶ 92; DRPSAMF ¶ 92.
SW & B did not list Injured C as an employee who had a work-related injury or illness on its OSHA 300 log for 2008. PSAMF ¶ 94; DRPSAMF ¶ 94. At some point in 2008, Phyllis Jones, Mr. Leavitt's assistant safety director, noticed that Injured C's name was not listed in the injury reports. PSAMF ¶ 93; DRPSAMF ¶ 93. She asked Darren Blanchard, who by then was SW & B's safety coordinator, why Injured C's injury was not listed. PSAMF ¶ 93; DRPSAMF ¶ 93. Mr. Blanchard informed her that the injury had been removed from the reports because the accident was due to Injured C having a fit of anger. PSAMF ¶ 93; DRPSAMF ¶ 93. After the three recordable injuries occurred in the first quarter of 2008, Mr. Meek proposed to Mr. Leavitt and his Co-Safety Coordinator, Fred Dudley, that they ask Injured A, Injured B, and Injured C to sign statements saying they were not injured on the job so that SW & B would not have to report their injuries as OSHA recordable.
After Mr. Leavitt's termination in June 2008, at least two additional SW & B employees were injured (Injured D and Injured E). PSAMF ¶¶ 107-108; DRPSAMF ¶¶ 107-108. Five days after Injured D's injury, Fred Dudley fired him for his failure to follow the proper procedure for lifting heavy objects. PSAMF ¶ 107; DRPSAMF ¶ 107. On August 8, 2008, Injured E injured his shoulder area working and received medical treatment for which he filed a workers' compensation claim. PSAMF ¶ 108; DRPSAMF ¶ 108. On August 18, 2008, he suffered an off-the-job injury, and SW & B did not allow him to return to work until he obtained a full release to regular duty for that non-work related injury. PSAMF ¶ 108; DRPSAMF ¶ 108. On October 24, 2008, SW & B terminated Injured E's employment, citing a reduction in work force. PSAMF ¶ 108; DRPSAMF 108. SW & B did not list Injured E as an injured worker on its OSHA 300 log for 2008. PSAMF ¶ 108; DRPSAMF ¶ 108.
In March of 2008, Mr. Meek asked Fred Dudley, an SW & B safety coordinator out
Around the time of Mr. Dudley's arrival, SW & B was instituting a number of programs designed to investigate the reasons behind its deteriorating safety record and to improve safety at the Jay site. DSMF ¶ 4; PRDSMF ¶ 4. As part of that effort, Mr. Martin directed Mr. Leavitt and Mr. Dudley to prepare regular reports of craft and supervisor safety meetings. DSMF ¶ 13; PRDSMF ¶ 13. Due to some confusion, at least one of Mr. Leavitt's reports did not make it to Mr. Martin. PRDSMF ¶ 16; DSMF ¶ 16.
Mr. Dudley provided further reports to Mr. Meek, including things he had found when "nosing around after hours." PSAMF ¶ 95; DRPSAMF ¶ 95. At one point, Mr. Dudley took some of Mr. Leavitt's meeting reports and asked Mr. Meek "if this is the sort of thing you want me digging up." PSAMF ¶ 95; DRPSAMF ¶ 95. Mr. Dudley reported the following to Mr. Meek regarding Mr. Leavitt's job performance: that Mr. Leavitt had not implemented SW & B's safety manual and its safety procedures; that he was ignoring confined space safety procedures and that he had written himself a reprimand for doing so; that employees had told him that Mr. Leavitt was sleeping on the job; and that Mr. Leavitt knew that employees were standing on a forklift, which was a safety violation, and had done nothing about it. DSMF ¶¶ 8-11; PRDSMF ¶¶ 8-11. Mr. Dudley told Mr. Meek that Mr. Leavitt was the worst safety professional he had ever seen and that Mr. Leavitt ought to be fired.
Since his employment with SW & B began in 2007, Mr. Leavitt had been implementing SW & B's safety manual and procedures on an ongoing basis. PSAMF ¶ 98. During the first quarter of 2008, Mr. Leavitt was working in the field as appropriate to carry out his responsibilities, and was spending the same portion of his work time in the field as he had in the past. PSAMF ¶ 99.
After Mr. Leavitt's termination, Mr. Meek offered Mr. Dudley the permanent position as Safety Coordinator at the Jay site. DSMF ¶ 24; PRDSMF ¶ 24. Mr. Dudley initially accepted but subsequently changed his mind because he did not want to stay in Maine.
On March 24, 2009, Mr. Leavitt filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging discrimination based on disability, relationship with an individual with a disability, age, and retaliation. PSAMF ¶ 110; DRPSAMF ¶ 110. In response to this charge, Ms. Camp asserted that Mr. Leavitt was laid off because SW & B only needed two, not three, safety professionals to oversee the safety program at the Jay site. PSAMF ¶ ¶ 112; DRPSAMF ¶ 112.
SW & B first argues that Mr. Leavitt fails to state a claim under the associational discrimination provision of the ADA. Def.'s Mot. at 610. It argues that Ms. Leavitt's disability could not have been the reason for Mr. Leavitt's termination because Mr. Meek and Mr. McKusick made the decision to terminate Mr. Leavitt and neither had any knowledge of Ms. Leavitt's disability. Def.'s Mot. at 9. It further contends that, even if Mr. Meek and Mr. McKusick had such knowledge, Mr. Leavitt's allegations do not fit into the three situations giving rise to claims under the association provision. Id. It argues that an employee only has a claim if (1) his spouse or relative "has a disability which is costly to the employer's health plan, and the employer terminates the employee to save on health insurance premiums"; (2) if the employee is associated with someone who has been diagnosed with a communicable disease that the employer thinks the employee might contract; or (3) if the "employee is terminated because the employer is concerned that the disability of a spouse or a child will distract the employee such that the employee will need some form of accommodation in the workplace." Id. at 8. SW & B refers to these three situations respectively as "expense," "disability by association," and "distraction." Id. It observes that there is no allegation that Ms. Leavitt had a communicable disease, that Mr. Leavitt's caring for his wife would distract him in his employment, or that SW & B attempted to save or saved any expenses because his wife settled her workers' compensation claim with BE & K. Id. 910.
SW & B next argues that Mr. Leavitt cannot state a claim under the retaliation provision of the ADA.
Mr. Leavitt responds that he has established a prima facie case of discrimination on the basis of association with a person with a disability, which he says consists of four elements:
Pl.'s Opp'n. at 6 (quoting Barker v. International Paper Co., 993 F.Supp. 10, 14 (D.Me.1998)).
Mr. Leavitt argues that his employment record at SW & B clearly establishes that he was qualified for his position. Id. at 7. He cites the positive evaluations and rewards he received throughout his employment with BE & K Construction and SW & B as support. Id. He argues that the reasons SW & B cites for his termination are inconsistent, are fabrications, and are genuinely in dispute in this case. Id. at 7-8.
As to the second element, Mr. Leavitt asserts that there is no dispute that he was subjected to an adverse employment action. Id. at 8. To the extent SW & B may try to argue that he left work voluntarily, Mr. Leavitt says he has plenty of evidence to dispute that assertion. Id.
Mr. Leavitt then argues that he has established the third element, that he was known at the time of his termination to have a relative or associate with a disability. Id. Mr. Leavitt lays out the nature of Ms. Leavitt's condition and asserts that he has an expert prepared to testify as to the limitations it places on her day-to-day life. Id. at 89. He argues that employees and agents of BE & K and SW & B, including at least Mr. Morgan, Ms. Partridge, and Ms. Camp, were aware of Ms. Leavitt's "injury and resulting disability" because of her workers' compensation claim. Id. at 910. He argues that, although Mr. McKusick stated that he does not know when he learned about Ms. Leavitt's workers' compensation claim, a reasonable jury could find that he knew about her claim, and by implication her disability, prior to Mr. Leavitt's termination. Id. at 10.
With respect to the fourth element, Mr. Leavitt argues that a jury could find on this evidence that SW & B terminated Mr. Leavitt due to his wife's disability. Id. In his post-argument memorandum, Mr. Leavitt concedes that his associational claim does not fit any of the three categories outlined in Larimer v. International Business Machines, 370 F.3d 698 (7th Cir. 2004): "expense," "disability by association," and "distraction." Pl.'s Post-Arg. Mem. at 2. However, he contends that the associational discrimination provision should be applied broadly "to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions." Id.; Pl.'s Opp'n at 10 (quoting Oliveras-Sifre v. Puerto Rico Dep't. of Health, 214 F.3d 23, 26 (1st Cir. 2000)). Instead of Larimer's three factors, he urges the Court to adopt the "zone of interest" test the United States Supreme Court recently articulated in an ADA retaliation context in Thompson. Pl.'s Post-Arg. Mem. at 4-5 (citing ___ U.S. ___, 131 S.Ct. 863, 178 L.Ed.2d 694). He argues that, just as the retaliation provision was intended to protect both the disabled and their relations from retaliation, "Mr. Leavitt's close relationship to his wife puts him within the `zone of interest' intended to be protected by the associational provision of the ADA." Id. at 5.
Mr. Leavitt argues that consideration of SW & B's hostility to Ms. Leavitt's workers' compensation claim raises an inference that her disability was a determining factor in Mr. Leavitt's termination. He asserts that Ms. Leavitt's workers' compensation claim had a negative economic impact on BE & K and that "its resulting cost, as well as the idea that she was a `liability,' was a motivating factor in [SW & B's] decision to terminate Mr. Leavitt's employment." Id. at 1112. He says this is evidenced by SW & B keeping a file on Ms. Leavitt's claim when it had no legitimate reason to do so and Mr. Morgan's questioning Mr. Leavitt about his upcoming testimony at his wife's hearing. Id. at 12. He also contends that the timeline of events raises an inference that Ms. Leavitt's disability was a determining factor, noting that Mr. Dudley was hired months after Ms. Leavitt received a favorable decision from the workers' compensation board and Mr. Leavitt was terminated the day after Ms. Leavitt and BE & K had agreed to settle her claim. Id. at 1213. Finally, Mr. Leavitt argues that SW & B's treatment of other employees who were injured and had work restrictions in 2008 "support[s] . . . an inference that SW & B acted on unfounded stereotypes and assumptions as to persons with disabilities." Id. at 1315.
Mr. Leavitt further contends that SW & B's "inconsistent and shifting justifications for Mr. Leavitt's termination are evidence that the stated reason for his termination is pretextual, and the real reason is associational discrimination." Id. at 15. Mr. Leavitt observes that SW & B initially cited a reduction in force as the reason for his termination and now cites poor performance. Id. He asserts that he never received any written notice of any poor performance and that his record at SW & B reflects consistently strong performance. Id. at 1516. He argues that Mr. Dudley was hired to "dig up dirt" on him to establish a pretext for his termination. Id. at 16. Furthermore, he contends SW & B never had a commitment from Mr. Dudley to stay at the Jay site and was advertising for an open safety coordinator position within weeks of Mr. Leavitt's termination, undermining its argument that it needed to reduce its safety staff. Id.
Turning to his retaliation claim, Mr. Leavitt argues that there is a genuine issue of material fact as to whether SW & B retaliated against him based on "his advocacy on behalf of a person with a disability." Id. at 17. He asserts that his "testimony on behalf of his wife on her worker's compensation claims for retaliation, which BE & K contested, falls
On the causation element, Mr. Leavitt argues that "the evidence supporting an inference SW & B terminated Mr. Leavitt's employment because of his protected conduct is the same as that discussed . . . on the associational discrimination claim." Pl.'s Opp'n. at 19.
SW & B replies that "Mr. Leavitt has failed to meet his burden of offering admissible evidence proving the third and fourth requisite elements of his prima facie case under the ADA's association section." Def.'s Reply at 3. It argues that the third element is not met because it is undisputed that the person who recommended Mr. Leavitt's termination, Mr. Meek, had no knowledge of Ms. Leavitt's disability. Id. It argues that the fourth element is not met because the undisputed evidence establishes that Mr. Meek terminated Mr. Leavitt solely based on performance and not on "unfounded assumptions or stereotypes about persons with disabilities." Id. at 4. SW & B further argues that Quint does not contradict the weight of authority establishing that an association claim must fall within the category of "expense," "disability by association," or "distraction." Def.'s Resp. at 1-2. It asserts that Quint "has nothing to do with the Association Section of the ADA" and "merely deals with the type of evidence which may support a punitive damage claim under 42 U.S.C. § 1981a(b)(1)." Id. It reiterates that Mr. Leavitt cannot demonstrate that his claim is based on one of the three recognized categories of discrimination by association. Id.
SW & B further argues that Mr. Leavitt cannot establish that the reasons SW & B gave for his termination were pretexts. Def.'s Reply at 4. It notes that Mr. Meek received his information about Mr. Leavitt's performance from Mr. Dudley and others. Id. at 45. It contends that "Mr. Leavitt's denial of the accuracy of that information does not generate a material fact, since it is Mr. Meek's perception of Mr. Leavitt's job performance that informs the pretextual analysis, not whether the information on which the perception was based was accurate or inaccurate." Id. at 5. SW & B argues that this establishes indisputably that Mr. Meek chose to terminate Mr. Leavitt based solely on performance reasons, entitling SW & B to summary judgment on the associational disability claim. Id.
Turning to the retaliation claim, SW & B argues that it "must fail based upon the clear and unambiguous statutory language."
SW & B also refutes Mr. Leavitt's assertion that Barker is on point here. Id. at 4-5. It contends that in Barker the court denied summary judgment because the plaintiff requested an accommodation for his disabled wife, which is a protected activity under the ADA. Id. (quoting Barker, 993 F.Supp. at 16). SW & B says there is no evidence in this record to support Mr. Leavitt's assertion that he requested an accommodation for his wife. Id. It reasons that, even if there were such support, the request would have to have occurred before Ms. Leavitt's termination in 2002, and "no connection could possibly be inferred" between that request and his termination in 2008. Id. at 5.
Finally, SW & B contends that even if Mr. Leavitt could make out a prima facie retaliation case, the undisputed facts establish that Mr. Leavitt was terminated based on his performance, not his advocacy for Ms. Leavitt. Def.'s Reply at 7.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a).
The ADA provides that:
42 U.S.C. 12112(a). The associational discrimination provision of that section provides that the term "discriminate" includes "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4).
The associational discrimination section was intended "to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employees' relationships with particular disabled persons." Oliveras-Sifre, 214 F.3d at 26 (internal quotations omitted). To establish a prima facie case under the associational discrimination provision, a plaintiff must prove by a preponderance of the evidence that (1) he was qualified for the job at the time of the adverse employment action; (2) that he was subjected to adverse employment action; (3) that his employer knew, at the time of the adverse employment action, that he had a relative or associate with a disability; and (4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision. Colon v. San Juan Marriott Resort and Stellaris Casino, 600 F.Supp.2d 295, 305-06 (D.P.R.2008); Barker, 993 F.Supp. at 14. Following the McDonnell Douglas framework, once a plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. Barker, 993 F.Supp. at 14 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the defendant proffers such a reason, "the burden shifts back to the plaintiff to establish that the defendant's reason is merely a pretext for discrimination." Id.
The first and second elements of a prima facie case are easily met in this case. Mr. Leavitt's ten years of employment at BE & K and SW & B, his positive evaluations, and his awards are more than sufficient to establish that he was qualified for the job of safety coordinator. His termination—whether part of a reduction in force, performance-based, or discriminatory—was an adverse employment action because he did not leave SW & B voluntarily.
The Court finds that Mr. Leavitt has presented sufficient evidence to create a genuine dispute as to whether his employers knew of his wife's disability. Dr. Esponnette's testimony is sufficient to establish a genuine dispute as to whether Ms. Leavitt was disabled. PSAMF ¶ 62; DRPSAMF ¶ 62. Moreover, Mr. Leavitt has presented evidence from which a reasonable jury could infer that SW & B knew she was disabled. There is evidence that Valerie Camp, in-house counsel for BE & K and SW & B, was closely involved in Ms. Leavitt's workers' compensation claims, and therefore knew about Ms. Leavitt's physical condition. PSAMF ¶ 66; DRPSAMF ¶ 66. Significantly, the record suggests that she conveyed information about Ms. Leavitt's claims to Mr. Morgan, one of Mr. Leavitt's supervisors. PSAMF ¶ 47; DRPSAMF ¶ 47. Moreover, there is evidence that Ms. Partridge kept a file on the claim in SW & B's offices. PSAMF ¶ 65; DRPSAMF ¶ 65. Although there is no evidence that Mr. Meek, the corporate Safety Director, knew about her disability,
The fourth element—determining factor —is the most difficult. The crux of Mr. Leavitt's claim is that Ms. Leavitt's workers' compensation claim and Mr. Leavitt's participation in it motivated SW & B's adverse employment action. There are two aspects of Mr. Leavitt's claim: 1) that SW & B terminated Mr. Leavitt because he testified before the Maine Workers' Compensation Board in support of his wife's workers' compensation claim against BE & K; and 2) that SW & B terminated Mr. Leavitt because it harbored an animus against workers like Ms. Leavitt who press workers' compensation claims against it.
Mr. Leavitt must cross a significant hurdle to demonstrate that his testimony at his wife's workers' compensation hearing raises an inference that his wife's disability was a determining factor in his termination. Courts in the First Circuit have repeatedly held that similar claims are cognizable in retaliation, not discrimination by association. Oliveras-Sifre, 214 F.3d at 26 (Where plaintiffs "contend, in essence, that they were punished for their advocacy on behalf of individuals with AIDS .... [s]uch a claim implicates the prohibition against retaliation ... not the association provision"); Barker, 993 F.Supp. at 15 (Where "Plaintiff alleges that he was terminated because of his advocacy on behalf of his wife, and his wife's subsequent filing of a discrimination charge with the MHRC," "Plaintiff may be protected by the ADA's prohibitions against retaliation or coercion.... Plaintiff's allegations, however, do not fall within the scope of the ADA association discrimination provision"); Sifre v. Dep't. of Health, 38 F.Supp.2d 91, 101 (D.P.R.1999) ("Plaintiffs claim they were dismissed because of their advocacy on behalf of HIV/AIDS patients as part of their jobs at the Department of Health. Thus, Plaintiffs claims are not covered by section 12112(b)(4), but rather should be analyzed under the retaliation provision of Title V of the ADA"); see Lester v. Compass Bank, No. 96-AR-812-S, 1997 WL 151782 *3, 1997 U.S. Dist. LEXIS 11575 *11 (N.D.Ala. Feb. 10, 1997) (stating that "[a]n individual who champions the cause of a disabled individual in the exercise of the disabled's rights protected by the ADA is most assuredly protected from reprisal or retaliation because of his acts. However the protection is provided by 42 U.S.C. § 12203(a)-(c), the prohibition against retaliation or coercion").
The First Circuit decision in Oliveras-Sifre is especially problematic for Mr. Leavitt. In Oliveras-Sifre, the plaintiffs who did advocacy work for persons with AIDS claimed their contracts were not
If Oliveras-Sifre represents binding precedent on this issue, this Court as an inferior court within the First Circuit must apply the holding.
A question is whether Thompson represents such a change so dramatic in the legal landscape to free this Court from Oliveras-Sifre and to make this question one of first impression within the Circuit. In Thompson, the United States Supreme Court addressed a sex discrimination charge under the Title VII of the Civil Rights Act. Thompson, ___ U.S. ___, 131 S.Ct. 863, 178 L.Ed.2d 694, 698. Eric Thompson, the plaintiff, was engaged to be married to Miriam Regalado and both were employed at North American Stainless (NAS). Id. at 867. Mr. Thompson filed a charge with the EEOC, contending that NAS fired him to retaliate against Ms. Regalado's filing of a charge with the EEOC, alleging sex discrimination. Id. The United States Supreme Court first concluded that Mr. Thompson's status as Ms. Regalado's finance was a relationship close enough to potentially fit within Title VII's prohibition against third party reprisals. Id. at 868-69. Second, the Thompson Court concluded that Mr. Thompson was a "person aggrieved" within the meaning of Title VII because he was employed by the same employer as the original EEOC claimant and injuring him was the
Assuming that Thompson extends to the ADA, which it likely does, its teaching still does not reach the issue in this case. Mr. Leavitt's marital relationship with his wife is undoubtedly a relationship close enough to fit within Title VII prohibition against third party reprisals. Id. at 868 (stating that "[w]e expect that firing a close family member will almost always meet the Burlington standard"); see Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1082 (10th Cir.1997) (stating that "[a] family relationship is the paradigmatic example of a `relationship' under the association provision of the ADA"). SW & B has never claimed otherwise. Similarly, if Mr. Leavitt's allegations are credited, which they must be for purposes of this motion, he falls well within the "zone of interests" sought to be protected by the ADA. The issue here is whether, assuming he is a person aggrieved under the ADA, his advocacy for his disabled wife at a workers' hearing is cognizable under the discrimination by association provision of the ADA. Nothing in Thompson suggests that Oliveras-Sifre has been eclipsed.
Even assuming Oliveras-Sifre does not bind this Court on the issue of advocacy, Mr. Leavitt conceded that he does not satisfy any of the three Larimer categories. Pl.'s Post-Argument Mem. at 2. Although the First Circuit has not cited Larimer, its analysis of associational discrimination claims tracks the Larimer analysis. When explaining the scope of the associational discrimination provision, the First Circuit provided three examples of association discrimination from the EEOC's Interpretive Guidelines that reflect the three categories:
Oliveras-Sifre, 214 F.3d at 26 (citing 29 C.F.R. Pt. 1630.8, App. at 360). These examples reflect the categories of "distraction," "disability by association," and "expense" respectively. The First Circuit wrote that association claims must "fit within this framework." Id.; Dewitt v. Proctor Hosp., 517 F.3d 944, 947-48 (7th Cir.2008); Larimer v. International Business Machines Corp., 370 F.3d 698, 700-01 (7th Cir.2004); Trujillo v. PacifiCorp., 524 F.3d 1149, 1155-57 (10th Cir.2008). Thus if the Larimer three category analysis applies, Mr. Leavitt has conceded his claim does not fit within any of these three categories.
In short, Mr. Leavitt's advocacy claim does not fit within the recognized categories for a cognizable associational discrimination claim and the Court is not convinced that the decisional law has changed since Oliveras-Sifre.
Mr. Leavitt has another argument. He contends there is sufficient evidence in the record about SW & B's excessive concern about its workers' compensation costs and its mistreatment of injured workers to support his claim that SW & B harbored hostility toward individuals with disabilities and that his termination reflected that animus. Pl.'s Opp'n. at 11-12. In his
Under the Maine Workers' Compensation Act, if an employer schedules an injured worker for a medical examination, the employee has the right to have his own doctor attend the examination. 39-A M.R.S. § 207. Maine law requires that when the employer schedules the examination, it inform the employee of the right to have his doctor present. In Quint, an employer gave an injured employee only fifteen minutes notice of an examination and of her right to have her employer pay for her doctor's presence at the examination. 172 F.3d at 15. Moreover, the employer knew that the employee's doctor was actually away on vacation at the time. Id. When the employee became upset and cancelled the appointment, the employer fired her, citing "insubordination." Id. At the First Circuit, the employer argued that its violation of state workers' compensation law could not support a punitive damages award under the ADA. Id. The Quint Court wrote:
Id.
This Court does not read Quint as saying that any employer violation of the Maine Workers' Compensation Act is evidence of an employer violation of the associational discrimination provision of the ADA. Otherwise, the ADA would become a federal forum in addition to the state workers' compensation system to resolve the endless disputes about work-related injuries between employers and employees. Quint is more nuanced. Quint says that the fact that the employer in Quint misused a provision of the Maine Workers' Compensation Act to recklessly discriminate against its disabled worker because of her disability does not insulate the employer from the provisions of the ADA.
Mr. Leavitt's proposition is different. His claim is that SW & B discriminated against him because of his wife's assertion of a workers' compensation claim and because its workers' compensation costs were exorbitant. As proof, he wishes to demonstrate that SW & B discriminated against other work-injured employees. Under Mr. Leavitt's theory, the Maine's Workers' Compensation Act was not a vehicle by which SW & B committed ADA prohibited discrimination. The Maine Workers' Compensation Act and its expense was the motivating force behind SW & B's punitive actions against its employees. Mr. Leavitt's theory is therefore about expense, not about disability.
It is true that to make his ADA associational discrimination case, Mr. Leavitt uses ADA terminology—"unfounded stereotypes and assumptions as to persons with disabilities", Pl.'s Opp'n. at 13. But his language masks his true theory, which is that SW & B acted against its work-injured employees because they were costing it too much money, not because they were
Even if the Court were to consider such evidence, to permit Mr. Leavitt to proceed with an associational discrimination claim on these facts would expand the association provision beyond its judicially-recognized limits. Accepting the view that the scope of the associational discrimination provision is limited to "expense," "disability by association," and "distraction," Mr. Leavitt's claims are far too attenuated to fall within any of these categories. There is no evidence of either disability by association or distraction, leaving only expense. But as of the date of Mr. Leavitt's termination, Ms. Leavitt had finally settled her workers' compensation claim and as Mr. Leavitt conceded, "there would be no additional expense to Defendant once Tally Leavitt's workers' compensation claim was settled." Pl.'s Post-Arg. Mem. at 2. To generate a genuine issue of material fact, the factfinder would have to consider the workers' compensation expenses of SW & B employees other than Ms. Leavitt to conclude that SW & B discriminated against Mr. Leavitt because other work-injured employees had been expensive to SW & B. To state the proposition is to demonstrate its attenuated nature for purposes of the associational discrimination provision of the ADA.
In sum, Mr. Leavitt tries to shoehorn a retaliation claim into the limited associational discrimination provision. That effort must fail because he raised no genuine dispute as to whether he was discriminated against on account of his wife's disability.
The retaliation provision of the ADA provides:
42 U.S.C. § 12203(a).
The Court has already concluded that SW & B subjected Mr. Leavitt to an adverse employment action, which satisfies the second element of retaliation. The Court focuses on whether Mr. Leavitt has established the first and third elements of a retaliation claim.
BE & K's opposition of Ms. Leavitt's claims for workers' compensation benefits in 2003 and 2005 was not unlawful under the ADA. Employers routinely challenge workers' compensation claims, and deeming such challenges discriminatory or retaliatory would deter such challenges and allow employees to collect benefits at will. Therefore, by testifying in the workers' compensation proceeding in opposition to SW & B, Mr. Leavitt was not opposing any act or practice made unlawful by the ADA. See Deghand v. Wal-Mart Stores, Inc., 926 F.Supp. 1002, 1015 (D.Kan.1996) ("The plaintiff offers no factual or legal basis for how she could reasonably believe that an employer violates the ADA when in the exercise of its statutory rights the employer appears in a state workers' compensation proceeding and opposes the disabled employee's application for benefits.").
Other federal courts have rejected that filing a workers' compensation claim constitutes protected activity under the ADA. The United States District Court for the District of South Carolina stated that "while being retaliated against for filing a workers' compensation claim could certainly constitute a cause of action under state law ..., it does not constitute protected activity under the ADA." Coker v. International Paper Co., Civil Action No. 2:081865DCNBM, 2009 WL 6057269, at *8 (D.S.C. Sept. 23, 2009), report and recommendation adopted by C/A No. 2:081865-DCNBM, 2010 WL 1072643 (D.S.C. Mar. 18, 2010); see also Mosley v. Potter, Civil Action No. H052816, 2007 WL 1100470, at *9 (S.D.Tex. April 11, 2007); Fleury v. New York City Transit Authority, No. 02CV5266 SJF LB, 2004 WL 2810107, at *5 (E.D.N.Y. Dec. 8, 2004), rev'd in part on other grounds, 160 Fed.Appx. 34 (2nd Cir.2005); Johnston v. Henderson, 144 F.Supp.2d 1341, 1354 n. 5 (S.D.Fla.2001). If filing a workers' compensation claim is not ADA protected activity, it is not ADA protected activity to testify to support a claim.
Nor does the fact that Mr. Leavitt testified at a workers' compensation hearing in support of Ms. Leavitt's workers' compensation discrimination claim make a difference.
With this said, it is theoretically possible —as occurred in Quint—that the employer's actions violate both acts: the employer could use workers' compensation procedure as a vehicle to discriminate under the ADA. The question is whether there is sufficient evidence in this record to raise a genuine issue of material fact on this narrow question.
There is not. Mr. Leavitt testified twice before the Workers' Compensation Board on behalf of Ms. Leavitt: May 24, 2004 and September 12, 2007. It was at the 2004 hearing that Mr. Leavitt testified that Mr. Morgan and others pressured him to return Ms. Leavitt to work in her regular job rather than in alternative assignments, and that there were alternative work assignments that BE & K could have offered her. PSAMF ¶ 56; DRPSAMF ¶ 56. The Court assumes arguendo that this testimony, even at a workers' compensation hearing, could be ADA protected since the First Circuit has held that requesting an accommodation for a disability or complaining about a refusal to accommodate is protected conduct under the ADA. Carreras, 596 F.3d at 35-36; Guzman-Rosario v. United Parcel Service, Inc., 397 F.3d 6, 11 (1st Cir.2005). Viewing the facts in the light most favorable to Mr. Leavitt, his 2004 testimony could have been a complaint about a failure to accommodate, potentially cognizable under the ADA. See PSAMF ¶ 56; DRPSAMF ¶ 56. The same cannot be said for Mr. Leavitt's 2007 testimony. See PSAMF ¶ 68; DRPSAMF ¶ 68. There, he merely related the state of his wife's health and even viewing that testimony in the light most favorable to Mr. Leavitt, there is nothing that transforms run of the mill workers' compensation testimony into the assertion of a claim under the ADA.
Assuming that this one portion of Mr. Leavitt's 2004 testimony was protected activity, there is no evidence of a causal connection between that testimony and his termination. Most significantly, there were over four years between the testimony and his termination. PSAMF ¶¶ 56, 103; DRPSAMF ¶ 56, 103. The Court could find no case in which a four year interval between action and retaliation was deemed a sufficient temporal proximity to sustain a prima facie case. DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008) (finding a temporal proximity when all the relevant events took place within a year); Rhoades v. Camden Nat'l Corp., 575 F.Supp.2d 260, 262 (D.Me.2008). Moreover, in that time, Mr. Leavitt received pay increases and consistently positive evaluations, and BE & K recognized him for his work in its publications. PSAMF ¶¶ 33, 39; DRPSAMF ¶¶ 33, 39. This included high praise from Mr. Morgan, the only one of Mr. Leavitt's supervisors who arguably knew about his 2004 testimony. PSAMF ¶¶ 3339; DRPSAMF ¶¶ 3339. Such praise is entirely inconsistent with any long-term
Because the only conduct by Mr. Leavitt that could be construed as protected activity under the ADA was his 2004 complaint about BE & K's failure to accommodate his wife's restriction, and because there is no causal connection between that activity and his termination, Mr. Leavitt has failed to establish a prima facie case of retaliation. Accordingly, the Court grants SW & B summary judgment on Count III of Mr. Leavitt's claim.
The Court GRANTS Defendant SW & B Construction Company LLC's Motion for Summary Judgment on all counts (Docket # 16).
SO ORDERED.
Here, the Court is unable to find any support for the assertion that Mr. Meek or Mr. Martin knew anything about Ms. Leavitt's claim, disability, or settlement. Mr. Leavitt's citations to the record only indicate that Mr. McKusick learned about Ms. Leavitt's worker's compensation claim at some point. However, Mr. McKusick stated that he did not know about it "at the time," indicating that he did not know about the claim during its pendency. McKusick Dep. at 111:18112:20.
FED.R.CIV.P. 26(a). "Rule 37(c)(1) enforces Rule 26(a)." Poulis-Minott v. Smith, 388 F.3d 354, 358 (1st Cir.2004). Rule 37(c)(1) provides that "If a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless." FED. R.CIV. P. 37(c)(1). The First Circuit has recognized that Rule 37(c)(1) "clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule, and the required sanction in the ordinary case is mandatory preclusion." Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 60 (1st Cir.2001) (internal quotations omitted). "[T]he rule's phraseology applies with equal force to motions for summary judgment." Id.
The Court is convinced that the failure to disclose Injured B's identity was substantially harmless. Although not identifying Injured B by name, Mr. Leavitt referred to Injured B, his injury, and SW & B's response to the injury from its first interrogatory. See Pl.'s Rule 56(e) Resp. to Def.'s Objs. to Pl.'s Additional Statements of Material Fact at 2 (Docket # 32) (Pl.'s Rule 56(e) Resp.) From that time forward, SW & B was on notice that Injured B would be involved in Mr. Leavitt's presentation of his case. SW & B knew Injured B's name and had an employment file on him. Pl.'s Rule 56(e) Resp. at 2-3. At no point was SW & B in the dark as to who Injured B was, and it had ample opportunity to obtain testimony from him.
Mr. Leavitt also seeks to strike Mr. Dudley's affidavit for SW & B's failure to identify him in its Initial Disclosures. See Pl.'s Opp'n to Def.'s Statement of Material Facts ¶¶ 8-12 (Docket # 25). However, like Mr. Leavitt's failure to identify Injured B, SW & B's late disclosure of Mr. Dudley was harmless. Mr. Dudley's identity, his position at SW & B, and his relevance to the case were revealed at the infancy of the litigation and have been referenced repeatedly throughout. Mr. Leavitt could have deposed Mr. Dudley but the record is silent on whether he did so.
42 U.S.C. § 12117(a). Because the ADA incorporates Title VII's enforcement provisions by reference, it is logical that the Supreme Court's constructions of those provisions be incorporated as well. Accordingly, like the fiance in Thompson, Mr. Leavitt has a cause of action if he can establish that he was retaliated against for his wife's ADA protected activity.
