JOSEPH A. DICLERICO, JR., District Judge.
R. Lacey Colligan brought suit against Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic ("Dartmouth-Hitchcock"), alleging discrimination based on her disability, post-traumatic stress disorder, and state law claims for negligent and intentional infliction of emotional distress, defamation, and invasion of privacy. Dartmouth-Hitchcock moves for summary judgment. Colligan objects.
Summary judgment is appropriate when the moving party "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). "A genuine issue of material fact only exists if a reasonable factfinder . . . could resolve the dispute in that party's favor."
Colligan, a medical doctor specializing in pediatric medicine, began suffering from PTSD after her daughter died unexpectedly in 2012. Soon afterward, Colligan ended her practice of clinical medicine and formed a limited liability company, Sharp End Advisory.
In 2014, Colligan and her husband, John Colligan, moved to Hanover, New Hampshire, where Colligan began working for Dartmouth-Hitchcock through a contract with Sharp End Advisory. The American Medical Association awarded Dartmouth-Hitchcock funding to conduct a study, and Dr. George Blike, a department head at Dartmouth-Hitchcock, hired Colligan to head the team conducting the study. In addition, Colligan assisted Dartmouth-Hitchcock in obtaining a $3.9 million federal grant.
Although Dartmouth-Hitchcock and Blike would have preferred to hire Colligan as an employee, Colligan preferred to work as an independent contractor through Sharp End Advisory.
Around the same time that it hired Colligan as an independent contractor, Dartmouth-Hitchcock's executive vice president, Dr. John Birkmeyer, became the face of a restructuring program that required layoffs. Because of these layoffs, Birkmeyer grew unpopular among Dartmouth-Hitchcock's staff. Birkmeyer held "town hall meetings" with Dartmouth-Hitchcock staff about the restructuring that were often contentious. Although she was not subject to Dartmouth-Hitchcock's restructuring and layoffs, Colligan understood that Birkmeyer was unpopular among the hospital's staff.
On September 1, 2015, while driving to work, Colligan passed Birkmeyer's home, which was close to her own. In her deposition, Colligan testified that she saw a "Suburban-like" SUV parked across from Birkmeyer's house, with a man sitting inside taking photographs of the house. Colligan later identified the man as a disgruntled physician whom Birkmeyer had fired.
Concerned by the presence of the SUV and the man taking photographs, Colligan parked her car nearby and went to Birkmeyer's front door. Nancy Birkmeyer, John Birkmeyer's wife, answered. Colligan informed Nancy Birkmeyer that she thought she had seen a former Dartmouth-Hitchcock employee taking pictures of the home, although the large SUV had left by the time of their conversation.
Colligan testified at her deposition that she then began experiencing "flooding", a symptom of PTSD that manifests as a loud pulsing in the ears. Colligan, therefore, could not hear or recall what she said after she warned Nancy Birkmeyer about the SUV and the man inside.
Colligan told or intended to tell Nancy Birkmeyer that she did not want to be a "nosy neighbor." Nancy Birkmeyer, however, testified that she heard Colligan say that she was a "nosy employee." Doc. 36-14 at 6. Birkmeyer also heard Colligan state that she wanted Birkmeyer "to know that everyone knows where you live."
Nancy Birkmeyer thought that Colligan was threatening her because of the restructuring plan. She believed that Colligan had said, essentially, "We [the Dartmouth-Hitchcock employees] know where you live." Nancy Birkmeyer received Colligan's comments as thinly-veiled threats, not as bona fide concerns for the Birkmeyers' safety from a third party.
Nancy Birkmeyer, who thought that Colligan seemed "agitated", "crazy", and "mentally ill," reported the encounter and Colligan's statements "verbatim" to her husband, John Birkmeyer. Doc. 36-14 at 8-9. John Birkmeyer relayed the information provided to him by his wife to John Malanowski, Dartmouth-Hitchcock's Chief Human Resources Officer.
Meanwhile, Colligan purchased flowers for the Birkmeyers and wrote an apology note. Colligan returned to the Birkmeyers' home the same morning and left the flowers and note on their doorstep. Nancy Birkmeyer, who saw Colligan leave the flowers on her doorstep, described this act as "frightening". Doc. 36-14 at 18. Nancy Birkmeyer reported Colligan's second appearance to her husband.
After identifying Colligan as the person who had made the alleged threats, John Birkmeyer contacted Blike, Colligan's supervisor, who told Birkmeyer that there was no reason that Colligan would be mad. He also told Birkmeyer about Colligan's daughter's death.
John Birkmeyer, Malanowski, Blike, as well as Karen Aframe, Dartmouth-Hitchcock's Director of Employee Relations, discussed terminating Colligan's contractual relationship with Dartmouth-Hitchcock. Based on the information provided by Nancy Birkmeyer, Malanowski and Aframe recommended that Dartmouth-Hitchcock terminate the relationship. Blike, who had the final responsibility in deciding whether to terminate the contract, agreed with Malanowski and Aframe's recommendation.
Malanowski explained that he and Aframe recommended that Blike terminate Dartmouth-Hitchcock's contract with Colligan because she appeared "at a senior executive's house, unannounced, and threaten[ed] the wife and family of a senior leader." Doc. 32-3 at 64. Birkmeyer likewise understood that Dartmouth-Hitchcock was terminating Colligan because "she came to [his] house not once but twice and approached [his] family and said things that were interpreted at the time and in retrospect as threatening." Doc. 48-10 at 29. Although he agreed with it, Birkmeyer did not participate in the decision to terminate Colligan's contract.
After Dartmouth-Hitchcock made the decision to terminate Colligan's contract, John Birkmeyer contacted the Hanover Police Department, informing them about the incident and indicating that Colligan had "psychological problems lately due to an unknown issue." Doc. 42-19 at 2. John Birkmeyer also informed the police that Colligan had delivered an apology note and he and his wife were, therefore, less concerned about any potential threat.
Aframe and Blike informed Colligan about the termination on the afternoon of September 1, 2015. They also referred Colligan to the New Hampshire Professionals Help Program, which provides support services for mental health and psychiatric issues.
The same evening, David Luther, head of security at Dartmouth-Hitchcock, sent an e-mail to Malanowski and Aframe, discussing potential options for reducing any security threat posed by Colligan. Luther noted that John Birkmeyer had stated that he was "not overly concerned" about Colligan "at the moment" because "she has not been threatening in any way." Doc. 48-21 at 2. He added that a restraining order may not be an option "due to the lack of threats. . . ."
In addition to terminating the contractual relationship, Dartmouth-Hitchcock barred Colligan from accessing its campus. Dartmouth-Hitchcock permitted Colligan to use its public medical facility for "genuine medical emergenc[ies]" and for scheduled appointments with a medical care provider, with the caveat that Colligan contact security before arriving for a scheduled appointment.
Dartmouth-Hitchcock also informed the Geisel School of Medicine, which had appointed Colligan as an unpaid adjunct professor, about Colligan's encounter with Nancy Birkmeyer. The Geisel School of Medicine terminated Colligan's adjunct professor position.
On one occasion soon after her exclusion from Dartmouth-Hitchcock's premises, Colligan attempted to access the public medical facility for a scheduled medical appointment. As required, Colligan informed the hospital's security team before her appointment. An individual with Dartmouth-Hitchcock's security team informed Colligan, incorrectly, that she needed to check in with them when she arrived for the appointment and that she required an escort.
After Colligan filed this lawsuit, the
Faced with the embarrassment arising from the publicization of the September 1, 2015, incident, Colligan and her husband moved to Massachusetts in August 2017. Colligan, however, maintains that she would like to move back to Hanover in the future.
In this lawsuit, Colligan brings claims against Dartmouth-Hitchcock for disability discrimination under the Rehabilitation Act, 29 U.S.C. § 794; public accommodation discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12182, and N.H. Rev. Stat. Ann. ("RSA") 354-A:17; interference with an attempt to exercise a protected right under the ADA, 42 U.S.C. § 12203(b) and RSA 354-A:11; intentional and negligent infliction of emotional distress; defamation; and invasion of privacy. Colligan also seeks recovery of her attorneys' fees, costs, and enhanced compensatory damages.
Dartmouth-Hitchcock moves for summary judgment on all of Colligan's claims. In response, Colligan asserts that material facts are in dispute which precludes summary judgment. Dartmouth-Hitchcock replied, and Colligan filed a sur-reply.
Colligan alleges that Dartmouth-Hitchcock violated § 794 by terminating her contract because of her disability, PTSD. To establish a disability discrimination claim under § 794(a), the plaintiff must show that (1) she was disabled; (2) she was qualified; (3) her employer was federally funded; and (4) her employer took an adverse action against her solely because of her disability.
In evaluating a wrongful-termination disability discrimination claim under the Rehabilitation Act based on circumstantial evidence, the court applies the
Dartmouth-Hitchcock argues that Colligan cannot establish the causation element of her prima facie case because the individuals who made the decision to terminate Dartmouth-Hitchcock's relationship with Colligan did not know she had PTSD and because her PTSD was not the sole cause of her termination. Dartmouth-Hitchcock also argues that Colligan cannot obtain relief under the Rehabilitation Act because she was not an employee of Dartmouth-Hitchcock.
Colligan argues that she told Blike about the trauma she experienced from the death of her daughter. Therefore, Colligan claims, Blike told Birkmeyer, Aframe, and Malanowski about her disability when they discussed her daughter's death.
To receive protection from the Rehabilitation Act and ADA, an employee need only show that she was regarded as having a mental impairment.
For example, the communications between John Birkmeyer, Blike, Malanowski, and Aframe on September 1, 2015, show that each believed a psychological issue precipitated Colligan's aberrant behavior. Aframe and Blike also recommended that Colligan seek psychiatric help when they informed her of the termination, and Birkmeyer, who communicated extensively with Dartmouth-Hitchcock's decision-makers about the termination, reported to police his belief that Colligan suffered from an unknown psychological issue. For those reasons, a factual dispute exists as to whether Dartmouth-Hitchcock's decisionmakers knew or regarded Colligan as having a mental disability.
Under the Rehabilitation Act, a plaintiff cannot establish her prima facie case for disability discrimination unless her disability was the sole reason for her termination. Taub, 957 F.2d at 11;
Dartmouth-Hitchcock argues that Colligan has not shown that her PTSD was the sole cause or reason for her termination because the undisputed facts show that she was terminated for threatening Nancy and John Birkmeyer. Colligan responds, asserting that Dartmouth-Hitchcock harbored a speculative fear about individuals with mental disabilities. In support, she points to Dartmouth-Hitchcock's "knee-jerk reaction," that is, its immediate termination of her contract after her encounter with Nancy Birkmeyer.
There is no dispute that Blike hired Colligan knowing that she had or likely had a mental disability. Nor is there any dispute that Blike, having known prior to her hiring that Colligan had a mental disability, decided to terminate Colligan's contract only after Nancy Birkmeyer reported that Colligan had threatened her. Therefore, the September 1, 2015, incident was, at the least, a contributing cause of the termination. Colligan thus fails to establish that a reasonable factfinder would decide that disability discrimination was the sole reason for her termination.
Colligan attempts to evade that conclusion by arguing that Luther's September 1, 2015, e-mail shows that neither the Birkmeyers nor the police believed her actions to be threatening. Luther's e-mail discusses options for protecting the Birkmeyers, and notes that Colligan did not make threats only in the context of describing the likelihood of obtaining a restraining order against her. At the same time, the Birkmeyers requested the police to maintain patrols around their house and Dartmouth-Hitchcock increased its security around John Birkmeyer's office.
Colligan also suggests that Dartmouth-Hitchcock's refusal to reconsider its decision to terminate its contract with her after she explained the incident with Nancy Birkmeyer shows that Dartmouth-Hitchcock terminated the contract solely because of her PTSD. Although Dartmouth-Hitchcock's refusal to reconsider after Colligan explained that she did not intend to appear threatening to Nancy Birkmeyer may have been unfair to Colligan, the failure to reconsider does not create a material dispute as to whether Nancy Birkmeyer's allegations were, at least in part, a motivating factor. Therefore, Dartmouth-Hitchcock is entitled to summary judgment on Count I.
Colligan claims that Dartmouth-Hitchcock discriminated against her in violation of the ADA by restricting her access to its public health facility. "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182.
Dartmouth-Hitchcock argues that Colligan lacks standing to pursue her public accommodation discrimination claim because she is unlikely to return to Dartmouth-Hitchcock in the future for medical care. Dartmouth-Hitchcock also argues that Colligan has failed to bring forward evidence showing it restricted her access to the hospital based on her disability.
The remedies for denial of equal access to a public accommodation are limited to injunctive relief, restraining orders, and similar forward-looking relief.
Dartmouth-Hitchcock argues that Colligan, who has moved to Massachusetts, no longer has standing to pursue injunctive relief for access to a hospital in Hanover, New Hampshire. Colligan argues that the court conducts its jurisdictional standing analysis based on the facts as they existed at the time of the complaint, when she lived in Hanover.
The First Circuit has held that, in deciding standing, district courts should consider whether a barrier to access deters a plaintiff from returning to a location or public accommodation.
Colligan's husband, John Colligan, testified in his deposition that the allegedly unlawful restrictions played a part in their decision to move away from Hanover. Furthermore, Colligan, who completed her medical residency in Hanover, retains connections to Hanover that support her argument that she intends to return to Hanover. For example, her husband's family is from the area, the Colligans maintain social connections in Hanover, and the Colligans still own their home in Hanover and, according to John Colligan's deposition testimony, have no plans to sell it. The Colligans' daughter is also buried in Hanover.
As noted above, § 12182 and RSA 354-A:17 prohibit discrimination in access to public accommodations on the basis of a disability. To recover on a claim of unequal access, a plaintiff must show that she had a disability and that the defendant denied equal access to its public accommodation on the basis of her disability. 42 U.S.C § 12182(b). Dartmouth-Hitchcock argues that Colligan's public accommodation discrimination claim fails because it did not restrict her access to its hospital on the basis of her mental disability. Instead, Dartmouth-Hitchcock states that Colligan's actions on September 1, 2015, are the reason it limited her access to Dartmouth-Hitchcock's medical services. Colligan responds that the restrictions on her access to the facility arose from Dartmouth-Hitchcock's stereotypes or beliefs about people with mental disabilities.
Dartmouth-Hitchcock imposed the restrictions immediately after the September 1, 2015, incident. Colligan has shown that Dartmouth-Hitchcock refused to hear or consider evidence from her that suggested she was not an on-going threat. Dartmouth-Hitchcock's immediate reaction, combined with its refusal to consider evidence opposing its initial conclusion, is evidence from which a reasonable jury could find that Dartmouth-Hitchcock's perception of Colligan's mental disability, rather than any actual threat, motivated or partially motivated Dartmouth-Hitchcock to impose and maintain its restriction.
At bottom, Dartmouth-Hitchcock's argument in favor of summary judgment on Colligan's public accommodation discrimination claim is premised on an implicit assertion that Colligan posed an on-going security threat because of her actions and not because of mental illness. To be successful, however, Dartmouth-Hitchcock must show that the direct threat defense applies here. Under the direct threat defense, a provider of a public accommodation may limit or modify access to a disabled individual if the provider shows that she poses a "direct threat to the health or safety of others."
The ADA prohibits a defendant from coercing, intimidating, threatening, or interfering with any individual's exercise or enjoyment of a right protected by the ADA. 42 U.S.C. § 12203(b). New Hampshire's version of the statute provides virtually identical language, and the parties appear to agree that the court should treat the statutes in the same manner.
Generally, courts treat interference claims under § 12203(b) like retaliation claims under § 12203(a).
Dartmouth-Hitchcock argues that Colligan's interference claims must fail because any protected activity she undertook occurred after any alleged interference. Colligan responds that Dartmouth-Hitchcock interfered with her attempt to use Dartmouth-Hitchcock's medical facilities when it limited her access to them.
All the restrictions on Colligan's access to Dartmouth-Hitchcock were imposed immediately after her encounter with Nancy Birkmeyer on September 1, 2015, which was not a protected activity. Therefore, Colligan's claim that Dartmouth-Hitchcock imposed additional restrictions when she attempted to use Dartmouth-Hitchcock's medical facilities fails. Although a security officer mistakenly thought that Colligan required an escort for a scheduled appointment, Dartmouth-Hitchcock acknowledged and corrected that mistake. Colligan offers no contradicting evidence from which a jury could conclude that the security officer imposed the restriction to retaliate against Colligan for attempting to access the facility.
Colligan also argues that Dartmouth-Hitchcock "fully" barred her from its facilities after she filed a complaint with the New Hampshire Commission for Human Rights, and, therefore, interfered with her rights under the ADA and Chapter 354-A. Doc. 48 at 28. Colligan, however, identifies no evidence that the restrictions increased after she filed that complaint, and, as noted above, Dartmouth-Hitchcock imposed all the restrictions on Colligan's access to the facility immediately following the September 1, 2015, incident.
Dartmouth-Hitchcock has shown based on undisputed facts that it did not interfere with Colligan's exercise of protected rights. Therefore, Dartmouth-Hitchcock is entitled to summary judgment on Counts IV and V.
An intentional infliction of emotional distress claim requires a plaintiff to show that the defendant, through an "extreme and outrageous" act, intentionally or recklessly caused the plaintiff severe emotional distress.
Dartmouth-Hitchcock argues that Colligan fails to establish conduct sufficiently reprehensible as to support an intentional infliction of emotional distress claim. Colligan responds, asserting that personal attacks and stereotyping of a plaintiff can support an intentional infliction of emotional distress claim.
In support, Colligan points to
Colligan also asserts that Dartmouth-Hitchcock acted illegally out of fear about what she might do in the future because of her mental disability. The New Hampshire Supreme Court has held that even if a discharge is "illegal and reprehensible, a great deal more is required to approach outrageous conduct."
To establish negligent infliction of emotional distress, the plaintiff must show that the defendant negligently caused a foreseeable and serious mental and emotional harm accompanied with objective physical symptoms.
That argument lacks merit. Dartmouth-Hitchcock's intent to terminate its contract with Colligan does not insulate it from liability for the unintended consequences caused by the way it terminated the contract. An intended act can cause unintended but foreseeable injuries. It is for those acts that a defendant may be found negligent.
Dartmouth-Hitchcock states, in a single sentence, that it was not foreseeable that Colligan would suffer severe emotional distress because of the termination of the contract. Dartmouth-Hitchcock, however, did not develop this argument, which involves complex and undecided issues of New Hampshire state law. The court will not develop the argument on Dartmouth-Hitchcock's behalf.
Dartmouth-Hitchcock also argues that the mere breach of a contract or termination of an employee alone cannot support a cause of action for negligent infliction of emotional distress. Colligan responds that a breach of contract is not the basis for her negligent infliction of emotional distress claim.
As Dartmouth-Hitchcock observes, New Hampshire prohibits recoveries in tort for mere breaches of contract.
Instead, she asserts that the manner in which Dartmouth-Hitchcock breached the contract—by way of discrimination—caused her emotional distress. In other words, Colligan's claim focuses on the emotional distress caused by Dartmouth-Hitchcock's alleged discrimination, not on the emotional distress caused by the loss of her employment.
To establish a defamation claim, a plaintiff must show "that the defendant failed to exercise reasonable care in publishing a false and defamatory statement of fact about [her] to a third party. . . ."
Colligan responds that Dartmouth-Hitchcock's statements that she acted in a "threatening" manner were not published in good faith because Luther's e-mail indicates that Nancy and John Birkmeyer did not feel threatened. Likewise, Colligan contends that the incident did not call for a "police response" as Dartmouth-Hitchcock reported. Instead, she argues, her warning that a third party was watching the Birkmeyers' home required the police response. Colligan adds that, at most, the only "police response" related to her encounter with Nancy Birkmeyer was for "informational purposes."
An opinion is not actionable as defamation if it was published alongside a fully disclosed factual basis.
Dartmouth-Hitchcock's statement to the Valley News was made as part of its denial of liability, a context in which an average reader would expect to receive Dartmouth-Hitchcock's opinion. Furthermore, the use of terms "inappropriate" and "threatening" suggests a characterization of Colligan's acts. For example, in
As to the communication to the Geisel School of Medicine, Dartmouth-Hitchcock argues that it is protected by the common-interest privilege. A statement is subject to a conditional privilege "if it was `published on a lawful occasion, in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds of its truth, provided that the statement [was] not made with actual malice.'"
Instead, Colligan challenges Dartmouth-Hitchcock's good faith in making the statement. Colligan fails, however, to identify evidence showing that the publication was made without good faith and therefore exceeded the scope of the privilege.
Dartmouth-Hitchcock is entitled to summary judgment on Counts VIII and IX.
Colligan premises her false light claim on the same facts as her defamation claims. New Hampshire has not recognized false light as a cause of action.
Dartmouth-Hitchcock argues that Colligan's false light claim must fail because its statements to the
"Under any circumstances that would give rise to a conditional privilege, there is likewise a conditional privilege for the invasion of privacy." Restatement (Second) of Torts § 652G cmt. a;
Furthermore, Dartmouth-Hitchcock cannot be found liable for its communication to the
Alternatively, provided it did not make the statements in bad faith or with reckless disregard to their falsity, Dartmouth-Hitchcock had a right to publicly respond to Colligan's allegations. Restatement (Second) of Torts § 594 cmt. K ("[T]he defendant may publish in an appropriate manner anything that he reasonably believes to be necessary to defend his own reputation against the defamation of another. . . .");
The court grants in part and denies in part defendants' motion for summary judgment. The court grants the motion as to Counts I-II, V-VI, and VIII-X. The court denies the motion as to Counts III, IV, and VII.
Now that Dartmouth's motion for summary judgment has been resolved, the parties know what claims remain in the case for trial. Trial is currently scheduled for the period beginning on March 19, 2019. Before the parties and the court spend the considerable time and resources necessary to prepare for trial, the parties are expected to use their best efforts to resolve all or part of the remaining claims. The court also calls the attention of the parties to its order of January 25, 2018, concerning its expectation that the parties will mediate this case before trial will proceed.
SO ORDERED.
