JOHN A. WOODCOCK, JR., Chief Judge.
A former town manager claims his employer discriminated against him by requesting his resignation after he asked for a reasonable accommodation for his disability. The Court denies the town's motion for summary judgment concluding there are genuine issues of material fact as to whether the town improperly rejected the plaintiff's demand for reasonable accommodation and whether it retaliated against him because of his request by constructively discharging him.
On October 22, 2009, Howard S. Willinghan filed a complaint against the Town of Stonington (Stonington or Town), alleging disability discrimination, denial of reasonable accommodations, and retaliation. Compl. (Docket # 1). In 2010, the Court denied Stonington's motion to dismiss the federal claims. Mot. to Dismiss Pl.'s Federal Claims (Docket # 5); Order Denying Mot. to Dismiss Pl.'s Federal Claims (Docket # 9). On July 22, 2011, Stonington moved for summary judgment and attached a statement of material facts. Mot. for Summ. J. (Docket # 26) (Def.'s Mot.); Def.'s Statement of Material Fact Attach. 1 (Docket # 26) (DSMF). Mr. Willinghan responded on September 7, 2011 to both the motion and the statement of material facts. Pl.'s Resp. to Def.'s Statement of Material Facts (Docket # 31) (PRDSMF); Pl.'s Objection to Def.'s Mot. for Summ. J. (Docket # 32) (Pl.'s Opp'n), and submitted a statement of additional material facts. Pl.'s Statement of Additional Material Facts (Docket # 31) (PSAMF). On October 7, 2011, Stonington filed its reply and response to the additional material facts. Reply to Resp. to Mot. for Summ. J. (Docket # 35) (Def.'s Reply); Def.'s Resp. to Pl.'s Statement of Additional Material Facts (Docket # 36) (DRPSAMF). On October 7, 2011, Mr. Willinghan moved for oral argument, Pl.'s Mot. for Oral Argument on Def.'s Mot. for Summ. J. (Docket # 37), and the Court heard oral argument on February 27, 2012.
For many years before Mr. Willinghan's employment with Stonington he suffered from a series of medical issues involving his back. DSMF ¶ 13; PRDSMF ¶ 13. Mr. Willinghan first injured his back while on the job for Verizon in 1982. DSMF ¶ 14; PRDSMF ¶ 14; PSAMF ¶ 76; DRPSAMF ¶ 76. Over the course of the next fifteen years, following that original injury and before starting work for Stonington, Mr. Willinghan underwent five separate surgeries on his spine in an effort to render him pain free, and since that injury, he has undergone a total of seven spinal reconstruction surgeries.
Stonington is located in Hancock County, Maine. DSMF ¶ 1; PRDSMF ¶ 1. Howard S. Willinghan resides in Winter Harbor, Maine. DSMF ¶ 2; PRDSMF ¶ 2. Stonington is governed by five selectpersons. DSMF ¶ 3; PRDSMF ¶ 3. In November 2006, Stonington hired Mr. Willinghan as Town Manager with a starting date of January 2, 2007. DSMF ¶ 4; PRDSMF ¶ 4; PSAMF ¶ 80; DRPSAMF ¶ 80.
Mr. Willinghan executed a contract with the Town entitled "Town Manager's Employment Agreement" (Employment Agreement). DSMF ¶ 5; PRDSMF ¶ 5. Section 3 of the Employment Agreement is titled "Conditions of Employment." DSMF ¶ 6; PRDSMF ¶ 6.
Among the conditions of employment in the Employment Agreement is that Mr. Willinghan's term of employment was "for a period of three years, running from January 1, 2007 through December 31, 2009." DSMF ¶ 7; PRDSMF ¶ 7. Notwithstanding this anticipated term of employment, the Employment Agreement further provides for termination of Mr. Willinghan's employment by the Town before the expiration of his contractual term of employment:
DSMF ¶ 8; PRDSMF ¶ 8. The Employment Agreement also provides that Mr. Willinghan may voluntarily resign his own employment before the expiration of his employment term:
DSMF ¶ 9; PRDSMF ¶ 9. Section 4 of the Employment Agreement is entitled "Termination
DSMF ¶ 11; PRDSMF ¶ 11. Section 4(b) of the Employment Agreement further provides, in relevant part, that Mr. Willinghan may:
DSMF ¶ 12; PRDSMF ¶ 12.
Mr. Willinghan received very positive feedback about his job performance and successfully completed his six-month probationary period.
In August, 2007, Mr. Willinghan began to experience increased back pain and on August 27, 2007, he had his first appointment with Dr. Just, a board-certified anesthesiologist who specialized in pain medicine.
Although Mr. Willinghan's back and leg issues had become an acute issue in August 2007, Mr. Willinghan decided to attend the "Delmarva Motorcycle rally" that same month as part of a vacation scheduled for between September 10, 2007 and September 17, 2007.
When Dr. Just saw Mr. Willinghan again on September 20, 2007, he diagnosed Mr. Willinghan with spinal instability, annular tear, severe degenerative disk disease, and canal stenosis.
On September 24, 2007, Mr. Willinghan attended a Board meeting and informed the Board that he was having significant back problems and was seeing Dr. Just.
On October 5, 2007, Mr. Willinghan notified the full Board of Selectmen in writing:
PSAMF ¶ 88; DRPSAMF ¶ 88. Mr. Larrabee, one of the Town Selectmen, testified that he thought it was reasonable for Mr. Willinghan to wait to get approval before he saw an orthopedic surgeon so that he would not have to pay for it himself and that it would not be fair of the Board to expect him to provide documentation about his medical condition from a specialist he had not yet seen.
On October 10, 2007, Mr. Willinghan underwent the first in a series of epidural treatments, but it failed to provide him with relief from his increased pain. PSAMF ¶ 89; DRPSAMF ¶ 89. On or around October 13, 2007, Mr. Willinghan told Town Clerk Kathleen Billings-Pezaris about his worsened condition and discussed possible ways his disability could be accommodated.
Mr. Willinghan attended the weekly Board meeting on October 15, 2007 and informed the rest of the Board of his condition and the possibility that he might need surgery.
At the meeting, Mr. Willinghan proposed at least two accommodations,
Mr. Willinghan's first suggested accommodation was to work from home and come to the Town Office for scheduled office hours and appointments.
Id. He expected as part of what he believed was a reasonable accommodation that he would be "working at 2 a.m. and laying down during the day" only "sporadically."
A second suggested accommodation was to take an unpaid leave of absence "until we found out exactly what the situation would be."
On October 15, 2007, Mr. Willinghan also offered to provide his medical records to the Board and received no response; on October 22, 2007, he offered to provide the Town medical records from Dr. Just by picking them up at his appointment on Wednesday, October 24, 2007.
Despite Mr. Willinghan's request to discuss his potential needed accommodation as Town Manager, there was no response from the Board concerning any possible accommodation. PSAMF ¶ 103; DRPSAMF ¶ 103. Mr. Willinghan suggested that the Board research the Americans with Disabilities Act and refrain from taking any further official position until the next weekly meeting. PSAMF ¶ 104; DRPSAMF ¶ 104. At the October 15, 2007 meeting, the Board did not discuss or comment on Mr. Willinghan's suggested accommodations. PSAMF ¶ 105; DRPSAMF ¶ 105. The Board understood that Mr. Willinghan did not qualify for medical leave under the federal and state family leave acts and thus that under the law, they did not have to give Mr. Willinghan medical leave. Id. The Board did not indicate that his suggested accommodations would in any way be a hardship.
On October 16, 2007, the day after Mr. Willinghan revealed his worsened condition to the Board of Selectmen and requested reasonable accommodations for his disability, Selectman Evelyn Duncan came into the Town Office and used a phone within obvious earshot of Mr. Willinghan to call the Maine Municipal Association.
On October 17, 2007, the Maine Municipal Association sent written advice to Selectman Duncan, explaining that Mr. Willinghan may have a legal right to a medical leave of absence or other reasonable accommodation under the Maine Human Rights Act, the Americans with Disabilities Act, and the Town's own personnel policies.
On October 18, 2007, Mr. Willinghan's doctor told him that he was at risk for catastrophic failure of his spine unless his work conditions were modified.
On October 22, 2007, Mr. Willinghan again went before the Board, told them that because of his very serious back condition he required modifications in his work conditions, and requested that they discuss possible accommodations for his disability.
At the meeting, Mr. Willinghan told the Board that he "understood with my contract I worked at their discretion." DSMF ¶ 62; PRDSMF ¶ 62. In response, the Board expressed its opinion that the Town "needed somebody at the helm." DSMF ¶ 63; PRDSMF ¶ 63. In further response, the Board stated that the issue regarding Mr. Willinghan's proposed accommodations was a personnel issue that needed to be discussed in an executive session. DSMF ¶ 64; PRDSMF ¶ 64.
In response to Mr. Willinghan's second request for reasonable accommodation, the Board of Selectmen went into executive session.
After the executive session, the five Selectmen unanimously made a formal motion to request Mr. Willinghan's resignation "as he informed the Board he is unable to perform his duties." PSAMF ¶ 127; DRPSAMF ¶ 127. Shortly thereafter, Mr. Willinghan received a call from Selectman Larrabee stating that the Board had voted to request his resignation. DSMF ¶ 67; PRDSMF ¶ 67. Mr. Willinghan responded that he would submit his resignation the following day. DSMF ¶ 68; PRDSMF ¶ 68. By letter dated October 23, 2007, Mr. Willinghan formally resigned as Town Manager. DSMF ¶ 69; PRDSMF ¶ 69. In the letter, Mr. Willinghan wrote:
DSMF ¶ 70; PRDSMF ¶ 70. Mr. Willinghan was aware at the time of his resignation that the Employment Agreement provided a procedure by which the Board could terminate his employment.
As Stonington's current Town Manager has acknowledged, it would be hard for a town manager to continue to function if all five Selectmen passed a motion requesting his resignation and all town managers know that you should resign if requested to do so by the Selectmen.
The day after his resignation Mr. Willinghan underwent a successful epidural treatment which relieved his increased back pain and eliminated any immediate need for reasonable accommodation.
On or about October 30, 2007, the Town hired a substitute, who had previously been the Deputy Town Clerk for the Town and knew the Town's financial software, to assist in the Town Office on a temporary basis. PSAMF ¶ 134; DRPSAMF ¶ 134. Town Manager Billings-Pezaris hired this substitute quickly even though she had not begun looking until after October 22, 2007 and the substitute was the first person she asked to provide temporary assistance. PSAMF ¶ 135; DRPSAMF ¶ 135.
At no point either before or after his resignation did Mr. Willinghan provide medical records of any kind to the Town regarding the medical condition that led to his resignation. DSMF ¶ 74; PRDSMF ¶ 74. Mr. Willinghan offered to provide medical records to the Town but received no response and on January 24, 2008, Dr. Just wrote the Town that Mr. Willinghan's "medical condition has not prevented him from performing his essential job duties as Town Manager." Id.
The Town contends that Mr. Willinghan has failed to demonstrate that the Town took any "adverse action" against him, which the Town says is an essential element for a retaliation or discrimination claim. Def.'s Mot. at 11. The Town also maintains that Mr. Willinghan did not engage in "protected conduct" in requesting "reasonable accommodation" and that it did not terminate his employment. Id. at 12. Pointing to Mr. Willinghan's Employment Agreement with the Town, the Town contends that it did not have the contractual authority to summarily terminate his employment and would have been required to undertake a lengthy process before doing so. Id. at 12-13. To the extent Mr. Willinghan claims that he was constructively discharged, the Town cites case law that requires a hostile work environment, which, it contends, was not demonstrated on these facts. Id. at 13.
The Town also says that Mr. Willinghan is not entitled to the protections of the law accorded to demands for reasonable accommodation because he never fairly apprised the Board of Selectmen of the specific nature of his back condition or the specific nature of his proposed accommodation. Id. at 15. Thus, the Town argues that it was not required to undertake an "interactive process" about a vague disability and a nebulous accommodation demand. Id. at 14-15.
The Town then turns to Mr. Willinghan's proposed accommodations. Id. at 17. It says that even if Mr. Willinghan provided a valid medical basis for his proposed reasonable accommodations, his proposals were "substantially unreasonable." Id. at 17. To constitute a "reasonable accommodation," the law, according to the Town, requires the employee to be able to perform the "essential functions" of his job. Id. In determining whether he could perform the essential functions, the Court is required, the Town says, to give substantial weight to the employer's judgment. Id. at 17-18.
The Town contends that Mr. Willinghan's first proposed accommodation was to take an unspecified period of leave while he attempted further treatment of his back. Id. The Town says that as a matter of law taking an indefinite leave of absence is not reasonable. Id. The Town next addresses Mr. Willinghan's second proposed accommodation, namely that he be allowed to work at home at irregular hours and come to the office for scheduled appointments only. Id. at 19. The Town observes that attendance at work must be considered an essential part of any job and the Town could not have a Town Manager who was not "at the helm." Id. Nor is the Town required to accept a proposed accommodation that assigns portions of an employee's job duties to other employees. Id. at 20.
Mr. Willinghan first responds that, contrary to the Town's contentions, he made four, not two, suggestions for reasonable accommodations: (1) working from home part of the time with scheduled office hours and appointments in the Town Office; (2) taking unpaid medical leave pending his second epidural treatment which was scheduled for October 24, 2007; (3) taking unpaid medical leave for four to six weeks pending his surgical consultation; or (4) allowing the Town Clerk to fill in temporarily as Town Manager while his medical situation was clarified. Pl.'s Opp'n at 2.
Second, Mr. Willinghan asserts that in support of its motion, the Town relies on disputed facts in its favor. Id. at 5. Specifically,
Third, Mr. Willinghan disputes the Town's assertion that to be actionable an employer must terminate or constructively discharge an employee. Id. at 6. He points to case law that allows an employee who has been relegated to menial tasks to claim adverse employment action. Id. at 5-6. He says that the Town's refusal to accept any reasonable accommodation suggestions, its disclosure to him that it was considering terminating him, and its request for his resignation were all adverse employment actions. Id. at 6. Furthermore, he claims that a jury could find a constructive discharge in the Board's demand for his resignation. Id.
Fourth, Mr. Willinghan asserts that a jury could find that he made sufficiently specific and direct requests for reasonable accommodation. Id. at 7. He claims that his request for medical leave is a "well-established form of reasonable accommodation for an employee with a disability." Id. He maintains that the First Circuit rejected the Town's contention that because Mr. Willinghan could not identify when he would return, his request for accommodation was per se unreasonable. Id. (citing Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000)). He contends that his request for unpaid medical leave was facially reasonable. Id. at 8-9. He also says that working home part of the time is also a "possible reasonable accommodation." Id. at 9. The question, from Mr. Willinghan's perspective, is whether he would still have been able to perform all the essential duties of the job. Id. Moreover, he argues that once he demanded reasonable accommodation, the Town had an obligation to make a reasonable effort to determine the appropriate accommodation. Id. at 10. He says that he is not required to show that the Town's motives were discriminatory. Id. at 10-11.
Finally, he claims that under Maine law, the Town violated Mr. Willinghan's right to a public discussion of his request for reasonable accommodation by entering into an executive session of the Board. Id. at 11.
The Town replies that, his contentions to the contrary, Mr. Willinghan has not demonstrated he was fired or constructively discharged by the Town. Def.'s Reply at 1-2. It disputes Mr. Willinghan's characterization of Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161-62 (2d Cir.1998) and Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987), two Second Circuit constructive discharge cases. Id. at 2-3. It notes that Mr. Willinghan "was never threatened with being fired or a reduction in pay, much less had one of those actions taken against him." Id. at 3.
The Town further contends that Mr. Willinghan's reliance on Selectperson Duncan's discussion with the Maine Municipal Association is immaterial because there is "no evidence that the Board sanctioned, or was even aware of, the substance of Duncan's telephone conversation." Id. The Town also disputes the applicability of the menial demotion case Mr. Willinghan cited. Id. at 4.
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). For summary judgment purposes, "genuine" means that "a reasonable jury could resolve the point in favor of the nonmoving party," and a "material fact" is one whose "existence or nonexistence has the potential to change the outcome of the case." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir.2011) (citations omitted). Once the moving party has made this preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999); see also FED.R.CIV.P. 56(e).
Although the Court "view[s] the evidence in the light most favorable to the nonmovant, `as to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.'" In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (internal punctuation and citation omitted). "Even in employment discrimination cases where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003) (citation omitted).
Mr. Willinghan is proceeding under three statutory causes of action: (1) Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; (2) Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134(ADA); and (3) the Maine Human Rights Act, 5 M.R.S. §§ 4551-4634 (MHRA). See Compl.; see also Order on Def.'s Mot. to Dismiss Pl.'s Fed. Claims (Docket # 9). The parties agree there are no differences among these three statutes relevant to the resolution of this motion. Accordingly and for ease of discussion, the Court applies the ADA analysis to all three of Mr. Willinghan's claims. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 12 n. 1 (1st Cir.2004) ("The same standards ... apply to claims under the ADA and under the Rehabilitation Act"); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 312 (1st Cir.2003) ("It is settled law that the MHRA should be construed and applied along the same contours as the ADA").
Mr. Willinghan claims that the Town violated the ADA because it did not make reasonable accommodations for his disability,
Title II of the ADA prohibits discrimination "against a qualified individual on the basis of disability in regard to ... the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
It is the plaintiff's burden to show that reasonable accommodations were available. Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 136 (1st Cir.2009) (citing 42 U.S.C. § 12112(b)(5)(A)). "More specifically, the plaintiff's burden under the ADA is `to show not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for the employer under the circumstances.'" Id. (quoting Reed v. LePage Bakeries, 244 F.3d 254, 259 (1st Cir. 2001)). Thus, to make a case that the employer failed to reasonably accommodate a disability, the employee "bears the burden of proposing an accommodation that would enable him to perform his job effectively and is, at least on the face of things, reasonable." Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 665 (1st Cir.2010) (quoting Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir.2001)).
The Town says that when he approached the Board for accommodations, Mr. Willinghan made two proposals, neither of which was reasonable as a matter of law: (1) working mostly from home, or (2) an indefinite unpaid medical leave.
Under the ADA, the employee must demonstrate that, with reasonable accommodations, he is "able to perform the essential functions of the position." Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 75 (1st Cir.2010); see also 29 C.F.R. § 1630.2(o)(1)(ii) ("The term reasonable accommodation means ... [m]odifications or adjustments to the work environment ... that enable a qualified individual with a disability to perform the essential functions of that position"). The First Circuit has explained that "[a]n essential function is, at its most basic level, one that is `fundamental' to a position rather than `marginal.'" Id. The Equal Employment Opportunity Commission has promulgated implementing regulations pursuant to the ADA that list three nonexclusive reasons a job function may be considered essential: (1) the position exists for the purpose of performing the function, (2) there are a limited number of employees among whom responsibility for the function can be distributed, and/or (3) the function is highly specialized and the incumbent was hired for his or her expertise or ability to perform it. Id. (citing
Responding to Mr. Willinghan's proposal to work from home and to only come to the Town Office for scheduled appointments, the Town says the proposal is not a reasonable accommodation for a town manager. Def.'s Mot. at 19-20. First, it observes that "at the risk of stating the obvious, attendance is an essential function of any job." Id. (quoting Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir.2008)). It also discounts Mr. Willinghan's home-work proposal, saying that it is without record support. Id. Furthermore, Stonington maintains that Mr. Willinghan's suggestion to have Ms. Billings-Pezaris, the Town Clerk, substitute is unreasonable as a matter of law because the employer cannot be required to "reallocate [essential] functions to other workers." Id. at 20 (quoting Rios-Jimenez, 520 F.3d at 42).
Here, the record is insufficient for the Court to conclude that Mr. Willinghan could not demonstrate that he could have performed the essential functions of the Town Manager position with a combination of home and office work. First, when Mr. Willinghan made the accommodation requests on October 15 and October 22, 2007, his medical situation was uncertain. He was scheduled to see Dr. Just on October 24, 2007 for a second epidural injection and he requested that the Board wait until then before making a final decision. Thus, the immediate request for accommodation was only for two days and there is nothing in the record that suggests Mr. Willinghan's position as Town Manager was so critical that a two-day period of home and office work would not have been reasonable. See Ward, 209 F.3d at 35 ("Based on this record, a reasonable factfinder could conclude that a regular and predictable schedule is not an essential function of [employee]'s position so long as he works the requisite 7.5 hours per day").
Second, the record contains very little information about the exact duties of a Town Manager and why the Town Manager's presence at the Town Office during the entire work day is an essential function of the job. Mr. Willinghan proposed to work at home, about one mile from the Town Office, and to come to the Town Office for scheduled appointments and be available if necessary. Other than a generic understanding of what someone with the title of Town Manager does, there is very little information in the record as to what the Town of Stonington expected of Mr. Willinghan. See Richardson, 594 F.3d at 75-76 (listing the types of evidence bearing on the essential job function analysis as including the employer's judgment of essential functions, written job descriptions, the amount of job time spent on the functions, the consequences of not requiring the incumbent to perform the function, the work experience of past incumbents, and the current experience of incumbents in similar jobs). It is unclear why the Board concluded that Mr. Willinghan's proposal was so unreasonable. It could be that in Stonington — a small coastal community with a minimal municipal staff, a vibrant harbor, and a burgeoning summer population — the Town Manager's continual physical presence in the Town Office is, in fact, an essential part of the job. But if so,
Mr. Willinghan's second proposal was for unpaid medical leave. The Town argues that an indefinite period of leave "fails for lack of specificity." Def.'s Mot. at 18. The Town cites an Eighth Circuit case in which an employee's request for an accommodation during the indeterminate length of her recovery from surgery was deemed unreasonable. Peyton v. Fred's Stores of Ark., Inc., 561 F.3d 900, 901 (8th Cir.2009). Mr. Willinghan replies that the Town had a provision in its personnel policy that allowed for discretionary unpaid leaves of absence for up to sixty days and that the Town is in a difficult position to deny that its own provision is unreasonable. Pl.'s Opp'n at 8 (citing Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)). Second, Mr. Willinghan says the law in the First Circuit is different. He quotes language from Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir.2000):
Garcia-Ayala, 212 F.3d at 648.
Finally, one view of the facts is that Mr. Willinghan was not asking for an indefinite leave but a leave only "until we found out exactly what the situation would be" — a date which could have been four to six weeks in the future when he was hoping to see an orthopedic surgeon or could have been as early as two days from October 22, 2007, when he was scheduled for a second epidural treatment. DSMF ¶ 48; PRDSMF ¶ 48. On balance, the Court concludes that Mr. Willinghan has raised a genuine issue of material fact as to whether his request for unpaid leave was a reasonable accommodation.
The Town contends that Mr. Willinghan's reasonable accommodation claim must fail because he did not present the Board with medical confirmation about the nature of his back condition and the precise contours of his work restrictions. Def.'s Mot. at 15-17. The Town cites case law that stands for the sensible proposition that an employer cannot be expected to accommodate a vague or ill-defined disability. Id. at 16. According to Stonington, Mr. Willinghan's claim must fail as a matter of law because he did not provide the Town with any medical documentation of the nature of his back injury and doctor-imposed restrictions. Id. at 17. Furthermore, the Town contends that Dr. Just's notes confirm that on October 18, 2007, he told Mr. Willinghan that he should not work at all, which, if correct, would mean that Mr. Willinghan's suggestion of a modified home-office work schedule violated his own doctor's orders and could not be deemed reasonable. Id.
Here, the Court easily concludes there are genuine issues of material fact. First, although the Town now asserts that medical confirmation was so critical that the claim must fail as a matter of law, the Town never claimed that Mr. Willinghan's back condition was factitious or exaggerated; to the contrary, the Town agrees that Mr. Willinghan was honest and that the Selectmen believed his oral reports about his medical situation. PSAMF ¶ 138; DRPSAMF ¶ 138. In view of these concessions, it is unclear why the Town had to have medical notes corroborating what it already believed. Second, although it is true that Mr. Willinghan did not present the Town with medical records before his resignation, it is also true that the Town did not ask him for them. DSMF ¶ 51; PRDSMF ¶ 51. Third, when the Town received Dr. Just's office notes, they confirmed that on October 10, 2007 the doctor had told him not to work; yet, one of Mr. Willinghan's suggested accommodations was for an unpaid leave of absence, which is consistent with the doctor's note. Fourth, the parties wrangle about what Dr. Just said during his deposition about the meaning of his note and whether he had in fact restricted Mr. Willinghan from the physical activity inherent in Mr. Willinghan's home-office proposal. Fifth, when the Town demanded Mr. Willinghan's resignation, it did not condition its demand on physician corroboration.
In essence, the Board seemed to accept at face value that Mr. Willinghan was suffering from a significant — perhaps even in his words "catastrophic" — back injury, and there is nothing in the record to show that the Board was stymied by the absence of a doctor's note. At the very least, a factfinder should determine whether the Board contemporaneously required the medical documentation or whether the issue is purely a retrospective attempt to fit the facts into convenient case law. In either case, Stonington's dispositive motion must fail on this point because there are genuine issues of material fact as to Mr. Willinghan's reasonable accommodation claim.
The ADA also prohibits retaliation against "any individual because such individual has opposed any act or practice made unlawful" by the ADA. 42 U.S.C. § 12203(a). "To establish a claim of retaliation, a plaintiff must show that (1) she engaged in protected conduct, (2) she suffered an adverse employment action, and (3) there was a causal connection between the protected conduct and the adverse employment action." Valle-Arce, 651 F.3d at 198. "Requesting an accommodation is protected conduct for purposes of the ADA's retaliation provision." Id. (quoting Freadman v. Metro. Prop. & Cas. Ins. Co.,
The Town maintains that it did not take an adverse employment action against Mr. Willinghan because Stonington did not terminate Mr. Willinghan; he resigned. The law regards an employee who resigns as having been fired if he can show that he was "constructively discharged." Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977). "[I]n order for a resignation to constitute a constructive discharge, it effectively must be void of choice or free will." Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 50 (1st Cir.2008). In other words, an employee "must show that, at the time of his resignation, his employer did not allow him the opportunity to make a free choice regarding his employment relationship." Id.; see Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir.1993) (constructive discharge exists where employer's actions "effectively vitiate the employees' power to choose work over retirement"). Furthermore, the standard "is an objective one; it cannot be triggered solely by an employee's subjective beliefs, no matter how sincerely held." Roman v. Potter, 604 F.3d 34, 42 (1st Cir.2010) (citation omitted).
In Ahern v. Shinseki, 629 F.3d 49 (1st Cir.2010), the First Circuit instructed that "a plaintiff who seeks to withstand summary judgment on a claim of constructive discharge must point to evidence in the record showing that, as a result of discrimination, her `working conditions were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign.'" Id. at 59 (quoting Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st Cir.2002); Dykstra v. First Student, Inc., 324 F.Supp.2d 54, 67-68 (D.Me. 2004)). "When an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer's conduct may amount to constructive discharge." Torrech-Hernandez, 519 F.3d at 50-51 (quoting Equal Emp't Opportunity Comm'n v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir.2002)); see also Torrech-Hernandez at 51 ("constructive discharge protects the employee who `decides to quit rather than wait around to be fired'") (quoting Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 377 (7th Cir.1998)).
The Court agrees with the Town that Mr. Willinghan's case does not begin to meet the types of hostile work environments that the First Circuit has typically required. Nevertheless, the Court views Mr. Willinghan's position as Town Manager as unusual. As Town Manager, Mr. Willinghan was uniquely beholden to the Board of Selectmen for his initial appointment and continued employment. The Board often acts as a buffer between the demands of the general public and the fiscal and legal constraints on municipal action. To do his job, Mr. Willinghan had to work closely with the members of the Board on an array of potentially controversial issues and, to fulfill their obligations, the Board members had to work closely with him. Without a supportive Board of Selectmen, a Town Manager cannot properly perform the job and, as Town Managers know, when the Board of Selectmen or Town or City Council demands the chief municipal executive's resignation, the manager must leave. Other factors supporting a finding of constructive discharge include: (1) the timing of the resignation request; (2) the unanimity of the request; and (3)
Even though Mr. Willinghan could have stood his ground, insisted on the letter of his Employment Agreement, demanded the Board demonstrate the basis for a "for cause" termination, held on through the due process hearing, and, if successfully ousted, received ninety days termination pay, the fact that he elected — on unanimous demand — to immediately resign and give up his continuing salary and severance pay tends to confirm his position that, as a practical matter, he had no choice. To hang on would have been arguably worse for Stonington, worse for the Board, and ultimately worse for Mr. Willinghan.
This does not mean that Mr. Willinghan will be able to convince a jury that in his circumstances, "a reasonable person would have felt compelled to resign." Ahern, 629 F.3d at 59. A jury might well hold Mr. Willinghan to some of the words in his resignation letter: that he resigned because of his "present physical condition, the advice of [his] medical advisors [and] [his] obligation to the Town of Stonington." DSMF ¶ 70; PRDSMF ¶ 70. Alternatively, the jury may focus on the last phrase of the resignation letter: "and at the request of the Select Committee." Id. The jury may find that, even though the Board asked for his resignation, he should not have so readily acquiesced and should have at least attempted to salvage his relationship with the Board and his job, or the jury could conclude that his immediate resignation was a capitulation to the inevitable.
All of this means that he has raised a jury question. "Constructive discharge is a heavily fact-driven determination." Stremple v. Nicholson, 289 Fed.Appx. 571, 574 (3d Cir.2008). As the First Circuit made clear in Feliciano-Hill v. Principi, 439 F.3d 18 (1st Cir.2006), "[t]he question whether a work environment is sufficiently hostile to create liability is best left to a jury." Id. at 27 (citing Che v. Mass. Bay Trans. Auth., 342 F.3d 31, 40 (1st Cir. 2003)). In the circumstances of this case, the Court finds that Mr. Willinghan has raised a factual question as to whether his resignation was compelled by the unanimous demand of the Board of Selectmen that he tender his resignation, thus constituting constructive discharge.
Because genuine issues of material fact remain as to Mr. Willinghan's claims of denial of reasonable accommodation and retaliation, the Court concludes that summary judgment is inappropriate.
The Court DENIES the Town of Stonington's Motion for Summary Judgment (Docket # 26).
SO ORDERED.
In the Town's paragraph 15, the Town says that after the original injury and before becoming employed by the Town, he had undergone five back surgeries, an assertion Mr. Willinghan admitted. DSMF ¶ 15; PRDSMF ¶ 15. In Mr. Willinghan's paragraph 77, he says he has undergone seven spinal reconstructive surgeries, an assertion the Town admitted. PSAMF ¶ 77; DRPSAMF ¶ 77.
In the Town's paragraph 17, it asserts that Mr. Willinghan's physical problems increased before his November 2006 MRI. DSMF ¶ 17. Mr. Willinghan qualified his response, stating that he had reported to Dr. Just that his symptoms had increased over the six months before August 2007 and had really begun to bother him in August 2007. PRDSMF ¶ 17. The Court reviewed the Town's record citation to Mr. Willinghan's deposition. DSMF ¶ 17 (citing Attach. 2, Dep. of Howard S. Willinghan 21:19-24 (Willinghan Dep.)). In his response, Mr. Willinghan said only that he "may have" given that history to his doctors in Baltimore. In view of Mr. Willinghan's less than resounding confirmation of the history and the Court's obligation to view the evidence in the light most favorable to Mr. Willinghan, the Court has not included the Town's paragraph 17.
In addition, the Court has not included paragraph 28 because it asserts that "following his vacation", Mr. Willinghan attended an August 27, 2007 office appointment with Dr. Just. However, Mr. Willinghan's vacation was in September 2007. DSMF ¶ 28.
In support of his paragraph, Mr. Willinghan cites the deposition of Mr. Larrabee and in those portions of the Larrabee deposition, Mr. Larrabee makes those statements. PSAMF ¶ 88 (citing Larrabee Dep. 16:3-9, 19-24). The Court agrees with Mr. Willinghan that Mr. Larrabee's testimony is admissible but also agrees with the Town that Mr. Larrabee's testimony reflects his opinions. The Court has therefore altered Mr. Willinghan's paragraph 88 to reflect that the contents are Mr. Larrabee's opinions.
Regarding paragraph 95, the Town reiterates that Mr. Willinghan's performance was deficient in many ways. DRPSAMF ¶ 95. The Court addressed this objection in footnote 5.
The Town interposed a qualified objection to paragraphs 98, 99, 100, 101, 102 and 103 of the Plaintiff's statement of additional material fact, asserting that Mr. Willinghan made two specific suggestions for accommodation. DRPSAMF ¶¶ 98-103. The Town says that Mr. Willinghan proposed to work from home with irregular hours at the Town Office and to come to the Town Office for scheduled office hours and appointments and that he proposed to take an unpaid leave of absence until he found out exactly what the situation would be. Id. As the Court is required to view the evidence in the light most favorable to Mr. Willinghan, the Court has accepted his version for purposes of this motion.
The Court altered the assertion to strike "good faith" as a modifier for dialogue. The point is that the Town did not engage in any dialogue at all. The Plaintiff's use of the modifier infuses a conclusion of law into an assertion of fact. See Phelps v. Optima Health, Inc., 251 F.3d 21, 27-28 (1st Cir. 2001) (discussing employer's obligation to undertake an informal interactive process in good faith).
Dep. of Howard S. Willinghan 47:4-8. It is true that Mr. Willinghan went on to say that, even though he did not object, he thought the appointment of Ms. Billings-Pezaris was objectionable. Id. 47:9-20. However, Mr. Willinghan confirmed at his deposition that he did not object at the October 15, 2007 Board meeting. The Court will not accept his denial.
Based on what we discussed, I do think a disability under Maine law is involved. Attorney Pilgrim observes that "it sounds like you have only preliminary information and do not actually have a doctors' note or anything concrete concerning the condition involved or whether surgery, leave, etc. will actually be required." She urges the Town to "get more information before making any decisions." She then mentions the Town's potential obligations for reasonable accommodation under the ADA and the MHRA and its potential responsibilities under its personnel policy for leaves of absence. Viewing paragraph 115 in the light most favorable to the non-movant, Attorney Pilgrim's letter fully supports the assertions in the paragraph. The Court treats the paragraph as admitted.
For similar reasons the Court declines to accept the Town's paragraph 55. DSMF ¶ 55; PRDSMF ¶ 55.
