LANDYA McCAFFERTY, District Judge.
Wanda Duryea brings this lawsuit against her former employer, MetroCast Cablevision of New Hampshire, LLC, asserting claims for unlawful discrimination and harassment under RSA 354-A and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., as well as claims for retaliation under RSA 354-A:19, the ADA, and the Family and Medical Leave Act ("FMLA").
A movant is entitled to summary judgment if it "shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In reviewing the record, the court construes all facts and reasonable inferences in the light most favorable to the nonmovant.
On March 30, 2009, MetroCast hired Duryea as a Technical Service Representative in its Rochester, New Hampshire call center. Her job duties included providing phone, email, and chat support to MetroCast customers. Duryea worked at MetroCast for more than five years, until her termination on August 27, 2014.
Throughout her employment, Duryea suffered from a number of alleged disabilities, including bilateral tibial tendinitis (a condition that results in severe foot pain, especially when walking), asthma and emphysema, daily back pain, ear pain, vertigo, nausea, tinnitus, and loss of hearing. During her employment at MetroCast, Duryea requested that MetroCast provide certain accommodations for her disabilities. Duryea claims that as a result of her disabilities and accommodation requests she suffered discrimination and retaliation, culminating in her termination. She also claims that supervisors and coworkers regularly harassed her because she was disabled. The court summarizes her allegations chronologically.
In 2009, early in her tenure with MetroCast, Duryea experienced alleged harassment from a coworker who made inappropriate comments about her gender and her disabilities and from supervisors who made repetitive negative comments about her need to wear sneakers at work.
The incident involving a coworker occurred between June and August 2009. The coworker, Casey Fontneau, harassed Duryea for being out sick and using a handicapped parking spot at work. He made comments like "you don't look sick to me," "you don't look handicapped to me," and "those spots are for people in wheelchairs, you can walk." Doc. no. 27-2 at ¶ 1. Fontneau also made derogatory gender-based comments to Duryea about her "breast size" and "girly" selection of candy.
The negative comments about Duryea's sneakers began in late 2009. MetroCast's Employee Handbook required all employees at the Rochester facility to wear "business casual" footwear. Doc. no. 23-7 at ¶ 8. On November 22, 2009, Duryea requested permission to wear sneakers at work due to her foot pain. On November 25, MetroCast granted Duryea's request. Thereafter, Duryea claims that several of her supervisors, including Bill Schwartz, criticized her for wearing sneakers "on a weekly basis . . . with 20 of those times being by Schwartz himself. . . ." Doc. no. 27-2 at ¶ 5;
Doc. no. 27-4 at ¶ 6. In February 2011, for reasons not clear from the record, Schwartz was terminated and Lamontagne became Duryea's supervisor.
Beginning in 2011, following surgery on her right foot, Duryea alleges that she suffered numerous instances of harassment and discrimination. The first such incident occurred on January 14, when Duryea returned to work after surgery in a wheelchair. Upon her return, Schwartz sent her home, telling her that she could not return to work unless she had a note from her doctor. Although Duryea obtained a doctor's note dated January 14 verifying that she could return to work using a wheelchair,
In addition to wearing sneakers, Duryea also used a scooter or walker at work, when needed, to lessen the pain from walking. Duryea alleges that, starting in 2011, she was harassed because of her scooter and walker use. Lamontagne and Graves required her to keep the walker and scooter away from her desk so that they were not in the walkway. Duryea says that walking from her desk to the scooter and walker caused her pain. Duryea states that "[e]very time I had to use my scooter, from 2011-2014, Tony Graves would say, `You know, if you quit smoking, you would not need to use that scooter.'" Doc. no. 23-6 at 3 of 10. In her objection, Duryea appears to clarify that her use of the scooter "occurred approximately eight (8) times over three years." Doc. no. 27-1 at 4.
Finally, Duryea alleges that she experienced a further incident of harassment in January or February 2011 at a workrelated dinner. Duryea, who was in a wheelchair at the time, spilled a drink on the floor during the dinner. Duryea's supervisor, Alex Laklas, told her to clean up the floor herself. Duryea "crawled out of the wheelchair onto the ground, and was watched by many people. . . ." Doc. no. 27-2 at ¶ 18. Laklas initially refused to let two coworkers help her clean, but he eventually allowed a coworker to assist her.
In addition to the allegations of harassment and discrimination, Duryea also claims that MetroCast retaliated against her for taking FMLA leave. Specifically, Duryea alleges that MetroCast gave her lower raises and bonuses in 2011 and 2012 because she took FMLA leave in those years.
At the end of the calendar year, MetroCast gave each employee a raise and bonus based on the overall performance rating that employee received in her annual performance evaluation. MetroCast calculates an employee's overall performance rating by averaging the employee's scores in five different categories. Those five categories have a total of 28 subcategories. One of those 28 subcategories is entitled "Attendance, punctuality, time management" ("Attendance Category").
In both 2011 and 2012, Duryea received the lowest possible rating, "Needs Improvement,"
In 2011, although Duryea's overall performance rating was 2.7 out of 4, she received a raise (2.66%) higher than the company standard (2.5%) and received the highest bonus ($1,000) she was eligible to receive.
Duryea alleges that, in November 2013, MetroCast discriminated against her by waiting 10 days before accommodating her request for a parking space closer to the employee entrance to the building. Prior to 2013, MetroCast permitted employees to enter the building through the main customer entrance, and Duryea had a designated handicap parking space near that entrance. By the fall of 2013, MetroCast had a new employee entrance and announced to employees that they could no longer enter the building through the main customer entrance and had to use the employee entrance. There were no handicap parking spaces located near the employee entrance.
On November 1, 2013, Duryea was experiencing increased foot pain and asked her department manager, Roy Rudd, if she could park closer to the employee entrance "during her overtime shifts." Doc. no. 27-2 at ¶ 23.
On November 4, Duryea gave MetroCast a note, signed by Dr. Nancy Stoll, requesting that she be allowed to park closer to the employee entrance for the next two weeks until she could evaluate Duryea and determine the extent of her disability. Dr. Stoll's note states:
Doc. no. 23-15.
On November 5, Duryea left work and went to Barrington Urgent Care due to intense foot pain, which she claims was caused by additional walking at work. Duryea was seen by Dr. Stoll the next day, and Dr. Stoll faxed a note to MetroCast stating that Duryea "must be excused from work" until November 13.
On November 11, Dr. Stoll returned the form to MetroCast, confirming Duryea's need for the parking accommodation. By letter dated November 11, MetroCast approved the accommodation request and provided Duryea with a parking space near the employee entrance.
Duryea also claims that MetroCast discriminated against her by denying her a timely accommodation regarding the location of her desk. On January 27, 2014, after Duryea returned to work from three weeks of FMLA leave, she discovered that MetroCast had moved her desk to the far end of the call center, away from the employee entrance. Duryea told Lamontagne "that walking the extra distance to her new seat would be painful on her feet." Doc. no. 27-2 at ¶ 33. Lamontagne did not offer to move her desk, but instead explained that Rudd had moved her desk so that new employees could be closer to Lamontagne for training purposes.
Duryea made a formal request for a desk accommodation after returning from a three-month-long medical leave on May 29, 2014. On that date, Duryea provided MetroCast with a note dated February 15, 2014, from Dr. Joseph Martinez of Wentworth Health Partners, stating that "her desk needs to be located as close to the entrance/exit as possible to limit the distance she is required to walk." Doc. no. 24-2. That same day, MetroCast faxed an ADA Certification Form to Wentworth Health Partners. One day later, on May 30, MetroCast moved Duryea's desk as close to the employee entrance as possible, pending receipt of the ADA Certification Form. On June 12, MetroCast received the completed form and notified Duryea that her desk would continue to be located as close to the employee entrance as possible.
Duryea alleges that during roughly the same period in 2014 that she requested the parking and desk accommodations, MetroCast also discriminated against her by giving her training assignments upon her return from two separate medical leaves. First, when Duryea returned to work after taking leave from January 31 through February 11, 2014, she claims that MetroCast assigned to her "tasks that trainee employees are assigned." Doc. no. 23-6 at 6 of 10. She had not been assigned such trainee tasks in over three years. Shortly thereafter, Duryea took medical leave from February 13 through May 29, 2014, due to ear pain, vertigo, and nausea. Duryea claims that, upon her return on May 30, MetroCast placed her on "training status" for one week, until June 6.
On May 27, 2014, Duryea filed a charge of discrimination against MetroCast with the Equal Employment Opportunity Commission ("EEOC"). On June 10, 2014, MetroCast received notice of the complaint from the EEOC.
Duryea's health deteriorated in the summer of 2014, as she began to experience problems with vertigo and breathing. On June 17, Duryea gave MetroCast a doctor's note indicating that she was being treated for vertigo and could work when she did not experience dizziness. After receiving an ADA Certification Form from her physician, MetroCast granted Duryea an accommodation to take intermittent unpaid leave when needed because of her vertigo.
Then, in July 2014, Duryea experienced asthma and breathing difficulties unrelated to her vertigo. On July 8, Duryea called out of work for breathing problems, and she was treated for bronchial asthma and chronic sinusitis. Duryea's doctor indicated that she could return to work on July 28.
On July 22, 2014, MetroCast notified Duryea, that she had no remaining paid time off—vacation, personal, or sick days—for the year. MetroCast informed Duryea that she would only be eligible to take additional time off for: (1) approved unpaid leave under the FMLA; (2) approved unpaid leave as a reasonable accommodation under the ADA; or (3) leave that is specifically provided for in the Employee Handbook. MetroCast did not otherwise permit employees to take unpaid time off and remain employed.
On July 26, while still out of work, Duryea inquired about her remaining FMLA leave. MetroCast advised her that she was not eligible to take FMLA leave until November 2014. MetroCast explained, however, that if her asthma and breathing difficulties qualified as a disability, Duryea may be eligible for additional unpaid time off as an ADA accommodation. As such, MetroCast asked her to obtain an ADA Certification Form regarding her asthma and breathing difficulties.
On August 14, Duryea's primary care physician, Dr. Girish Joshi, sent MetroCast an ADA Certification Form indicating that Duryea, who remained out of work, had chronic obstructive pulmonary disease (COPD) and was not expected to improve. Dr. Joshi stated that Duryea could not perform the essential functions of her position as a Technical Service Representative because she had difficulty "with talking and breathing at work and is not able to talk for long periods on phone." Doc. no. 24-16. He did not indicate any reasonable accommodations that would allow her to return to work.
On August 26, MetroCast's Director of Human Resources, Joan McGlinn, spoke with Duryea to determine whether she agreed with Dr. Joshi that there was no accommodation that would allow her to return to work. Duryea said that she did not think she would ever be able to return to work.
On August 27, McGlinn sent Duryea a letter terminating her employment, which stated in part:
Doc. no. 24-17.
On December 15, 2014, Duryea amended her EEOC complaint to include her termination. On January 6, 2015, the EEOC issued Duryea a Notice of Right to Sue. On April 4, 2015, Duryea filed a complaint against MetroCast in state court, alleging claims for disability discrimination and harassment under RSA 354-A and the ADA (Counts I and III), retaliatory discharge under RSA 354-A:19 and the ADA (Counts II and IV), and retaliation under the FMLA (Count V).
In Counts I and III, Duryea asserts claims against
MetroCast for disability discrimination and harassment under RSA 354-A and the ADA, respectively. She contends that she was discriminated against because of her disabilities and subjected to harassment that created a hostile work environment. The parties agree that the analysis of Duryea's claims is the same under RSA 354-A and the ADA; thus, the court relies on cases interpreting the ADA to assess both her state and federal claims.
Duryea first claims that MetroCast employees, including supervisors, harassed her because of her disabilities. To succeed on a hostile work environment claim based on disability harassment, an employee must show that (1) she was disabled, (2) she was subjected to a hostile environment, and (3) the hostility was directed at her because of her disability.
While there is "no mathematically precise test to determine whether a plaintiff presented sufficient evidence that she was subjected to a severely or pervasively hostile work environment,"
Courts consider factors such as the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."
Here, Duryea points to numerous incidents of alleged harassment, including the following:
MetroCast argues, in passing, that Duryea's claims of disability-based harassment are time barred. However, construed favorably to Duryea, her hostile work environment claim alleges a continuing violation.
"As [the First Circuit has] observed, the hostile environment question is commonly one of degree—both as to severity and pervasiveness—to be resolved by the trier of fact on the basis of inferences drawn from a broad array of circumstantial and often conflicting evidence."
Duryea also claims that MetroCast discriminated against her because of her disabilities. Her discrimination claim appears to assert two distinct theories of liability: (1) failure to accommodate her disabilities and (2) disparate treatment.
Employers are required to make "reasonable accommodations" for "the known physical or mental limitations" of an otherwise "qualified individual with a disability."
Duryea claims that MetroCast failed to provide reasonable accommodations in response to her requests for a parking space and desk near the employee entrance. Although MetroCast granted both accommodations upon receiving disability paperwork from her physicians, Duryea contends that MetroCast failed to provide the accommodations within a reasonable period of time because of the delay between her requests and MetroCast's approval.
Duryea provides no support for her argument that an employer's delay while waiting for supporting medical documentation constitutes a failure to provide a reasonable accommodation, and neither RSA 354-A nor the ADA requires an employer to grant accommodation requests within a certain number of days. Even viewing the facts most favorably to Duryea, no reasonable jury could conclude that MetroCast's delay in providing these accommodations constitutes disability discrimination. Accordingly, Duryea's claim that MetroCast failed to reasonably accommodate her disabilities is insufficient to get to a jury.
Duryea also alleges disability discrimination based on disparate treatment. To establish a prima facie case of disability discrimination based on disparate treatment, an employee must show "(1) that she was `disabled' within the meaning of the ADA; (2) that she was able to perform the essential functions of her job with or without accommodation; and (3) that she was discharged or adversely affected, in whole or in part, because of her disability."
"An adverse employment action typically involves discrete changes in the terms of employment, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits."
Duryea's argument regarding what constitutes an adverse employment action for purposes of this claim is less than clear. The only allegation that comes close to constituting an adverse action is her claim that MetroCast gave her a quasi-demotion by requiring her to complete assignments for employees in training on two occasions after she returned to work following extended medical absences.
Despite Duryea's characterization of the training assignments as a temporary demotion, MetroCast placed her on training status for only a limited period of time, and she did not lose status, wages, or benefits as a result. No reasonable jury could conclude that placing Duryea on temporary training status was an adverse employment action related to her disabilities. Moreover, even assuming Duryea could establish that placing her on temporary training status was an adverse action, she has presented no evidence that MetroCast's stated reason for this action was a pretext for discriminatory animus. Duryea does not allege that MetroCast treated other employees returning from extended leaves of absences any differently, and there is no evidence in the record that MetroCast treated Duryea differently because of her disabilities when it gave her the training assignments. In fact, the record shows that MetroCast placed employees returning from extended leaves of absence, regardless of the reason for that leave, on temporary training status to become familiar with any new programs, policies, or procedures that went into effect while they were out of work.
In sum, there is no genuine dispute of material fact as to whether MetroCast discriminated against Duryea on the basis of her disabilities. Accordingly, MetroCast is entitled to summary judgment on Duryea's disparate treatment and failure to accommodate claims in Counts I and III.
In Counts II and IV, Duryea asserts claims against MetroCast for retaliatory discharge under RSA 354-A:19 and the ADA, 42 U.S.C. § 12203, respectively. Because the analysis is the same under RSA 354-A and the ADA, the court again relies on cases interpreting the ADA to assess both Duryea's state and federal retaliation claims.
"A retaliation claim under the ADA is analyzed under the familiar burden-shifting framework drawn from cases arising under Title VII."
MetroCast does not dispute that Duryea engaged in protected conduct by requesting reasonable accommodations for her disabilities and filing an EEOC complaint. Nor does it dispute that she experienced an adverse action when her employment was terminated. Rather, MetroCast argues that Duryea's retaliation claim fails because the record contains insufficient evidence for a reasonable jury to conclude that she would not have been terminated but for the protected conduct, and, in any event, she cannot establish pretext.
To establish causation, "the plaintiff must show a nexus between the protected conduct and the alleged retaliatory act."
Although Duryea does not argue causation, the court notes that temporal proximity alone can, in certain circumstances, establish causation.
Duryea does not dispute that MetroCast articulated a legitimate, non-retaliatory reason for terminating Duryea's employment. On August 14, 2014, Dr. Joshi informed MetroCast that Duryea could not perform the essential functions of her job because she had COPD. Dr. Joshi stated that Duryea was not expected to improve, and he did not indicate any accommodations that would allow her to return to work. On August 26, MetroCast spoke with Duryea. Duryea did not disagree with Dr. Joshi's prognosis and indicated that she did not think she would ever be able to return to work. On August 27, MetroCast terminated Duryea's employment because she had exhausted her available leave time and could no longer perform the essential functions of her job, with or without a reasonable accommodation.
Because MetroCast has articulated a legitimate, nonretaliatory reason for terminating Duryea's employment, Duryea must show that MetroCast's stated reason is mere pretext offered to disguise its retaliatory animus. In order to show pretext, Duryea must show both that MetroCast's reason for terminating her was false, and that MetroCast actually terminated her in retaliation for her accommodation requests and EEOC complaint.
Duryea does not argue that MetroCast's stated reason for terminating her employment was false, nor does she point to any evidence of pretext. Duryea instead seems to suggest that MetroCast only requested an ADA Certification Form regarding her asthma and breathing difficulties so that MetroCast would have a reason to fire her. No reasonable jury could come to such a conclusion.
As of August 2014, Duryea had exhausted her available paid and unpaid time off, including FMLA leave. Duryea was not entitled to remain employed if she took additional unpaid time off. MetroCast, however, attempted to provide Duryea with intermittent unpaid leave as an accommodation for her asthma and breathing difficulties, which would have allowed her to remain employed.
The uncontroverted evidence shows that MetroCast requested the ADA Certification Form not because it was looking for a reason to fire Duryea, but in an effort to accommodate her asthma and breathing difficulties so that she could take additional unpaid time off and keep her job. Despite MetroCast's efforts, Dr. Joshi certified that no such accommodation would allow Duryea to return to work. The record establishes that MetroCast only terminated Duryea's employment after it learned that she could not return to work—and after Duryea told MetroCast that she did not think she would ever be able to return to work—with or without the accommodation of additional unpaid leave. Duryea has pointed to no evidence suggesting that this was not the actual reason for her termination.
Moreover, Duryea provides no evidence that MetroCast harbored retaliatory animus on the basis of either her EEOC complaint or accommodation requests. In fact, MetroCast actually granted every accommodation she requested.
Duryea points to statements allegedly made by three supervisors that suggest those supervisors viewed her as "faking" her disabilities and "trying to not work."
There are several problems with Duryea's reliance upon these statements as support for her pretext argument. First, there is no evidence that those supervisors played any role in Duryea's termination. Second, there is no evidence suggesting either a temporal or causal relationship between the statements and Duryea's termination. Indeed, Duryea provides no evidence as to when any of these statements were made.
"A `stray remark' is a statement that, while on its face appears to suggest bias, is not temporally or causally connected to the challenged employment decision and thus not probative of discriminatory animus."
Here, there is no evidence linking the comments by Duryea's supervisors to her ultimate termination in August 2014. Thus, even assuming the comments suggest that certain supervisors harbored discriminatory animus toward her, Duryea fails to explain any temporal or causal connection between those undated comments and MetroCast's decision to terminate Duryea. Although certain supervisors may have wanted to fire Duryea, there is no evidence in the record that those supervisors played any role in MetroCast's decision to terminate Duryea's employment.
In sum, viewing the record in Duryea's favor, no reasonable jury could conclude that MetroCast's stated reason for her termination—that by her own admission she could not return to work due to her medical condition—was mere pretext, and that MetroCast actually terminated Duryea in retaliation for requesting accommodations and filing an EEOC complaint. Accordingly, MetroCast is entitled to summary judgment on Counts II and IV.
In Count V, Duryea alleges that MetroCast retaliated against her for taking FMLA leave by counting FMLA-protected absences against her in calculating her annual raises and bonuses in 2011 and 2012.
"[T]he FMLA prohibits retaliation against employees who take FMLA leave." Pagán-Colón v. Walgreens of San Patricio,
Duryea alleges that MetroCast used her FMLA leave as a negative factor in calculating her raise and bonus. In both 2011 and 2012, MetroCast gave Duryea the lowest possible rating in the Attendance Category, which measured an employee's annual performance in terms of attendance, punctuality, and time management. Duryea claims that she received the low ratings because she took time off from work, including FMLA-protected absences. And, because the Attendance Category was one of 28 subcategories MetroCast used to calculate raises and bonuses, Duryea claims that her raises and bonuses in 2011 and 2012 were lower than they otherwise would have been if she had not taken FMLA leave. MetroCast argues that Duryea's FMLA claim is barred by the FMLA's statute of limitations. The court agrees.
A person alleging a violation of the FMLA generally must bring her claim within two years from "the date of the last event constituting the alleged violation for which the action is brought." 29 U.S.C. § 2617(c)(1). However, in the case of a willful violation of the FMLA, the statute of limitations is extended to three years. 29 U.S.C. § 2617(c)(2). Duryea filed her complaint on April 4, 2015, more than three years after she received her 2011 raise and bonus, but only two years and four months after she received her 2012 raise and bonus. Thus, while Duryea's 2011 claim is time barred, her 2012 claim would be within the three-year statute of limitations for a willful violation. Duryea must therefore present evidence that MetroCast willfully retaliated against her in 2012 for taking FMLA leave.
Although the FMLA does not define "willful," the First Circuit has held that "in order to establish a willful violation of the FMLA, a plaintiff must show that `the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'"
Duryea's 2012 performance evaluation indicates that her low rating in the Attendance Category was based on poor management of her
In 2012, MetroCast gave Duryea a raise (2.8%) slightly lower than the company standard (3%) and a bonus ($933) slightly below the highest bonus ($1,000) for which she was eligible to receive. No reasonable jury could find that MetroCast willfully violated Duryea's FMLA rights when it calculated her raise and bonus in 2012.
Therefore, Duryea's FMLA claim is barred by the two-year statute of limitations.
For the foregoing reasons, defendants' motion for summary judgment (doc. no. 23) is denied as to Counts I and III with respect to Duryea's hostile work environment claims, and is otherwise granted.
The court's case manager will reschedule the trial, the final pretrial conference, and all other deadlines. All pending motions in limine are denied without prejudice to the parties' right to file motions in limine relevant to Duryea's hostile work environment claims.
SO ORDERED.
