UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kimberly Andersen
v. Civil No. 13-cv-477-JD Opinion No. 2015 DNH 037 Dartmouth Hitchcock Medical Center
O R D E R
Kimberly Andersen brings federal and state law claims against Dartmouth Hitchcock Medical Center (“DHMC”), her former
employer, that arose from the circumstances of her employment
termination.1 Andersen is deaf and contends that DHMC did not
provide her with reasonable accommodation for her disability
during the termination process. Andersen moves for summary
judgment on her claims under the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act, and the New Hampshire Law
Against Discrimination, RSA chapter 354-A, which are Counts I,
II, and V. DHMC moves for summary judgment in its favor on all
of Andersen’s claims.
Standard of Review
Cross motions for summary judgment proceed under the same
standard applicable to all motions for summary judgment, but the
motions are addressed separately. Fadili v. Deutsche Bank Nat’l
1 DHMC represents that Andersen was employed by Mary Hitchcock Memorial Hospital, not DHMC, but acknowledges that DHMC may be used to refer to its related entities, including Mary Hitchcock Memorial Hospital. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014). When the party
moving for summary judgment bears the burden of proof on an
issue, that party “cannot prevail unless the evidence that he
provides on that issue is conclusive.” E.E.O.C. v. Union Indep.
de la Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d
49, 55 (1st Cir. 2002) (internal quotation marks omitted). In
addition, Federal Rule of Civil Procedure 56 requires that a
motion for summary judgment be granted “against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Therefore, an absence of
evidence weighs against the party with the burden of proof.
Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 14
(1st Cir. 2012).
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). “A genuine issue is one that can be resolved in favor
of either party, and a material fact is one which has the
potential of affecting the outcome of the case.” Jakobiec v.
Merrill Lynch Life Ins. Co., 711 F.3d 217, 223 (1st Cir. 2013)
(internal quotation marks omitted). In deciding a motion for
summary judgment, the court draws all reasonable factual
inferences in favor of the nonmovant. Kenney v. Floyd, 700 F.3d
604, 608 (1st Cir. 2012).
2 I. Statement of Facts
In its reply, DHMC challenges statements in Andersen’s
objection to DHMC’s motion for summary judgment as not being
supported by appropriate record citations. The cited statements
are part of the “Argument” section of Andersen’s objection and do
not have supporting citations to the record.
Litigants in this district are required to “incorporate a
short and concise statement of material facts, supported by appropriate record citations” to support or oppose a motion for
summary judgment. LR 56.1(a) & (b). “All properly supported
material facts set forth in the moving party’s factual statement
may be deemed admitted unless properly opposed by the adverse
party.” LR 56.1(b). Further, a party opposing summary judgment
must provide competent record evidence to show a genuine factual
dispute. Fed. R. Civ. P. 56(c)(1); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); Mosher v. Nelson, 589 F.3d
488, 492 (1st Cir. 2009).
Andersen did not provide a statement of material facts in
her objection as is required by LR 56.1(b). Instead, Andersen
stated in her objection: “Ms. Andersen incorporates by this
reference the motion with memorandum of law and exhibits she has
submitted, asking the Court to grant partial Summary Judgment in
her favor.” For its part, DHMC filed a statement of undisputed
material facts in a separate document, which is an exhibit
attached to its memorandum.
3 Neither of these practices appear to strictly comply with LR
56.1(a), and both could lead to unnecessary confusion. See,
e.g., P.R. Am. Ins. Co. v. Rivera-Vazquez, 603 F.3d 125, 131-32
(1st Cir. 2010). In addition, the Local Rules impose a page
limitation on memoranda, see LR 7.1(a)(3), and both practices
could be used to circumvent that rule. For purposes of the
pending motions only, the court will consider the factual
statement in Andersen’s motion for partial summary judgment as a
factual statement in support of her objection and will consider DHMC’s factual statement that was filed as an exhibit to DHMC’s
motion for summary judgment. Similar accommodations may not be
granted in the future in this or other cases. Counsel are
directed to read and follow the local rules of this district.
Andersen did not support, by record citation, the following
challenged statements in her objection to DHMC’s motion for
summary judgment or in her memorandum for partial summary
judgment:
1. “Kimberley Andersen worked successfully in the billing
department at Dartmouth, receiving regular raises, and
commendations for her performance.”
2. “Not surprisingly, Ms. Andersen received the lowest
possible scores for communication skills and interpersonal skills
during that meeting.”
3. “And when the attempt to obtain an interpreter for the
scheduled termination meeting failed, Ms. Andersen’s supervisor,
[sic] misled Ms. Andersen about the nature of the meeting,
4 allowing Ms. Andersen to believe that the meeting was to identify
which of the positions in the newly reorganized department she
would have.”
Therefore, those statements will not be considered for
purposes of summary judgment.
II. Factual Background
Andersen graduated from the National Institute for the Deaf
at Rochester Institute of Technology in May of 1985 with an “AAS” medical record technician degree. The Institute provided an
evaluation of her communication skills and stated that Andersen’s
recommended mode of communication with Andersen in a one-to-one
situation was through speech. The evaluation also stated that
Anderson had good speech abilities, that her speech reading
abilities were excellent particularly one-to-one, that she
understood more than half of a message by hearing, and that
appropriate environmental conditions such as proper lighting and
no excessive background noise would help her understanding.
Andersen was hired by Mary Hitchcock Memorial Hospital,
after graduation, as a clinical information analyst. She used
speech and lipreading as her primary modes of communication but
later also relied on email, which helped her ability to
communicate. On some occasions, beginning in the 1990s, Andersen
requested an American Sign Language interpreter, which was
provided when requested. Her managers would ask if she wanted an
interpreter for meetings or events.
5 Andersen worked in clinical information services as an
inpatient coder until 1995. Because she could not meet the
accuracy requirements for that position, Andersen was transferred
to a temporary position in the Patient Financial Services
department to provide her time to find another job. She
performed well in that position and stayed in that department,
which was renamed the Revenue Management Division.
In 2011, Andersen’s performance evaluation noted that she
was not following directions given by the manager and that her responses bordered on insubordination. She was given a low
rating as a result. Andersen signed the evaluation.
The Revenue Management Division began a reorganization
process for a reduction in force in early 2012. During the
reorganization process, DHMC terminated the employment of all
employees in the Revenue Management Division and then offered
those employees the opportunity to apply and be interviewed for
positions in the reorganized department.
Andersen did not understand why she was being asked to apply
for a new position but submitted applications for her current
position, Special Representative II, and for two other positions,
Special Representative III and Team Leader. Andersen was
interviewed by a management group, which included Sheila Locke,
the billing operations manager in the Revenue Management
Division, on February 21, 2012. Andersen was offered an
interpreter for the interview meeting, but she declined when
6 Locke, her supervisor, said she would be at the interview.2
Andersen’s evaluations from the interview noted specific
deficiencies in skills related to positions in the department and
showed low scores. The interview group concluded that Andersen
would not be offered a position in the reorganized department.
A follow up meeting was scheduled for March 6, 2012, to
inform Andersen that she would not be hired back in the
reorganized department and to give her the DHMC severance
package. Locke attempted to find an interpreter for the meeting, but no interpreter was available. Locke then asked Andersen if
she wanted to have an interpreter present for the meeting, and
Andersen declined to have an interpreter.3
Locke attended the meeting along with Barbara Moore,
director of billing operations, and Kimberly Carboneau, an
employee relations specialist in the human resources department.
Locke stated in her deposition that at the beginning of the
meeting she told Andersen that she would not be offered a
position in the reorganized department and that Carboneau would
explain what opportunities and options Andersen would have.
Andersen remembers that at the beginning of the meeting Locke put
her hand out and said: “Give me your badge.” Andersen was
2 In her factual statement in support of her motion for summary judgment, Andersen appears to confuse the circumstances of the offer of an interpreter for the interview on February 21 with the offer of an interpreter for the March 6 meeting. 3 Andersen contends that she did not understand the importance of the meeting.
7 flabbergasted and felt that the wind had been knocked out of her.
Andersen does not remember that Carboneau explained the severance
package to her, and instead remembers that Locke told her not to
show the severance agreement to a lawyer. Andersen took the
severance package, including the severance agreement, told the
group that she would show it to her lawyer, and left the meeting.
Andersen read the severance agreement at home and then
reviewed it with her brother, who is a financial advisor with
offices in New York and Boston. Her brother explained each paragraph to Andersen so that she understood the agreement.
Based on her review with her brother, Andersen signed the
agreement on March 17, 2012, and returned it to DHMC.
The severance package began with a sheet titled “Important
Information and Resources” that listed the documents provided in
the package. A letter to Andersen was the first page of the
severance agreement and notified her that her employment was
terminated effective on March 6, 2012, and that the severance
agreement provided the terms under which DHMC would provide
severance pay and benefits. The letter stated that Andersen
would have twelve weeks of severance pay, health insurance
through COBRA, and outplacement services provided by Lee Hecht
Harrison. The letter further explained that Andersen had forty-
five days to decide whether to sign the agreement and directed
Andersen to sign the agreement and initial each page if she
agreed to the terms and conditions offered.
8 In the first numbered paragraph, the agreement explains the
severance pay offered, that DHMC would subsidize one month of
health benefits under COBRA, and that outplacement services would
be provided by Lee Hecht Harrison. The second paragraph is
titled “Release” and states that “[i]n return for the severance
pay and benefits described above, you agree to release [DHMC],
and its parents, subsidiaries, divisions, affiliates, successors,
and assigns, and current and former officers, directors,
employees, and agents (in this paragraph collectively referred to as the ‘released parties’) from any and all liability or claims,
of any nature.” The released claims include claims arising
“under any federal, state or local human rights, civil rights,
employment, wage-hour, pension or labor laws, rules and/or
regulations, public policy, contract or tort laws, or any claim
for misrepresentation, defamation, promissory estoppel, or
invasion of privacy, or otherwise.”
In the confidentiality provision, the agreement states that
a terminated employee was not precluded from discussing the
agreement with a spouse, lawyer, accountant, or financial
advisor. At the end of the agreement, the signing party
“represent[s] that (a) [she has] had sufficient time to consider
[her] options regarding this Agreement; (b) [she has] had an
opportunity to consult with an attorney of [her] choice; (c) [she
has] been provided with accurate and complete information
regarding [her] obligations and the benefits that are available
to [her] under the terms of this Agreement; (d) [she has] not
9 been subjected to any threats, intimidation or coercion in
connection with the Agreement; and (e) the terms of this
Agreement have been written in a manner [she] understand[s].”
Andersen signed the agreement and received all of the benefits to
which she was entitled under the agreement.
After the termination of her employment, Andersen applied
for other positions at DHMC, but she was not hired. Andersen
attended a training session provided by Lee Hecht Harrison on
March 30, 2012. The trainer at the session was Irene Sinteff, who had not been told that Andersen was deaf. Andersen did not
request an interpreter for the session. Because Andersen was the
only one who attended the session, Sinteff was able to provide
one-on-one training. Sinteff noted that Andersen would have been
lost in a larger class.
III. Andersen’s Motion for Summary Judgment
Andersen moves for summary judgment on her claims that DHMC
violated Title I of the ADA, the Rehabilitation Act, and the New
Hampshire Law Against Discrimination, RSA 354-A, by failing to
provide an interpreter for her at meetings that occurred during
the reorganization and termination process. DHMC objects,
contending that Andersen’s motion fails to provide the grounds
for summary judgment with reasonable clarity and asserting that
DHMC provided interpreter services when requested, Andersen
signed a release of most of the claims, Andersen cannot show any
harm caused by a lack of an interpreter at the termination
10 meeting, and DHMC was not obligated to provide an interpreter for
the placement services provided after her termination.
A. Sufficiency of the Motion
DHMC challenges Andersen’s motion as insufficient because it
does not provide the grounds she asserts for summary judgment
with reasonable clarity. The court agrees. The motion itself
states only that Andersen seeks summary judgment on Counts I, II,
and V “for the reasons detailed in the accompanying memorandum of law.” The accompanying memorandum provides a factual statement,
a three-paragraph law section, and two paragraphs of argument to
support the motion. The first paragraph of argument merely
repeats facts that Andersen contends are undisputed. The second
paragraph is a general statement of the purpose of the ADA, taken
from a Sixth Circuit case, without any attempt to analogize that
case or any legal theory to the facts of this case.
In her reply, Andersen provides some argument that DHMC
should have provided an interpreter for the March 6, 2012,
termination meeting and that Andersen’s deafness was a
substantial factor in her lack of success in applying for jobs at
DHMC after her termination. A party generally cannot raise or
develop arguments for the first time in a reply. Mills v. U.S.
Bank, NA, 753 F.3d 47, 55 n.5 (1st Cir. 2014); Alamo-Hornedo v.
Puig, 745 F.3d 578, 582 (1st Cir. 2014); West v. Bell Helicopter
Textron, Inc., 2014 WL 4922971, at *13, n.13 (D.N.H. Sept. 30,
2014); Gen. Linen Serv., Inc. v. Gen. Linen Serv. Co., Inc., 25
11 F. Supp. 3d 187, 192 (D.N.H. 2014). In addition, even with the
reply, Andersen’s motion is not sufficient to support summary
judgment in her favor.
B. Merits of the Motion
Further, DHMC has demonstrated that material facts exist
which do not support judgment in Andersen’s favor. Without
addressing all of the reasons DHMC raises in its objection to
Andersen’s motion, the following circumstances preclude summary judgment in Andersen’s favor.
DHMC contends that under the terms of the severance
agreement, Andersen released her claims in Count I, Count II, and
Count V to the extent those claims are based on events that
occurred prior to March 17, 2012. Andersen did not address the
release or its effect on her claims. Therefore, she is not
entitled to summary judgment on Counts I, II, and V.
In addition, to the extent Andersen intended to allege
claims in Counts I, II, and V based on events after March 17, she
has not provided evidence or argument to support those claims for
purposes of her motion for partial summary judgment. DHMC
asserts and provides evidence to show that its decisions not to
hire Andersen for positions after her termination were based on
legitimate and non-discriminatory reasons, which leaves Andersen
with the burden of showing those reasons were pretext for
discrimination. See Cruz v. Bristol-Myers Squibb Co., PR, Inc.,
699 F.3d 563, 571 (1st Cir. 2012); Rios-Jimenez v. Principi, 520
12 F.3d 31, 40-41 (1st Cir. 2008); Madeja v. MPB Corp., 149 N.H.
371, 378 (2003).
If Andersen claims that DHMC violated the ADA because Lee
Hecht Harrison failed to provide an interpreter for the training
session she attended, she has not supported that claim. DHMC
points out that after March 6, Andersen was no longer an employee
of DHMC, and argues that Title I of the ADA applies only to job
applicants and current employees. See Hatch v. Pitney Bowes,
Inc., 485 F. Supp. 2d 22, 28 (D.R.I. 2008). Further, as Andersen acknowledges, Lee Hecht Harrison is an independent contractor,
and Andersen has not shown that DHMC would be liable under the
ADA for Lee Hecht Harrison’s actions.
Therefore, Andersen has not shown that she is entitled to
summary judgment on Counts I, II, and V.
IV. DHMC’s Motion for Summary Judgment
DHMC moves for summary judgment on all of Andersen’s claims
on the grounds that Andersen lacks evidence of discrimination,
that the release in the severance agreement precludes all of her
claims which are based on events before March 17, 2012, and that
she received all of the benefits she was entitled to under the
severance agreement. In response, Andersen asserts that DHMC did
not make reasonable efforts to communicate with her during the
reorganization process, did not know what she understood during
13 the meetings related to her termination, and did not inform Lee
Hecht Harrison that Andersen was deaf.
A. Release
As is discussed above in the context of Andersen’s motion
for partial summary judgment, the severance agreement that
Andersen signed includes a release provision. In support of
summary judgment, DHMC asserts that Andersen has released it from
all claims to the extent they are based on events that occurred prior to the date she signed the severance agreement, March 17,
2012. Andersen did not address or even mention the release
provision in her objection to summary judgment.
The release provides that Andersen “agree[s] to release
[DHMC] . . . from any and all liability or claims, of any
nature.” Andersen does not dispute that by signing the severance
agreement she agreed to release all claims against DHMC as stated
in the release provision. She also does not challenge the
validity of the severance agreement or the release provision.
Therefore, based on the release, DHMC is entitled to summary
judgment on all of Andersen’s claims to the extent they are based
on events that occurred before the severance agreement was signed
on March 17, 2012.
B. Discrimination Claims - Counts I, II, and V
DHMC contends that Andersen cannot prove that DHMC
discriminated against her, for purposes of Counts I, II, and V,
14 based on events that occurred after March 17, 2012. Andersen did
not respond to DHMC’s argument or evidence.
Discrimination claims under Title I of the ADA, the
Rehabilitation Act, and RSA 354-A are evaluated under the same
standard. Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91,
103, n.12 (1st Cir. 2007); Parker v. Accellent, Inc., 2014 WL
6071550, at *6 (D.N.H. Nov. 3, 2014); Montemerlo v. Goffstown
Sch. Dist., SAU No. 19, 2013 WL 5504141, at *5 (D.N.H. Oct. 4,
2013). To prove discrimination for Counts I, II, and V, Andersen would have to show that she was disabled within the meaning of
the ADA, that she was able to perform the essential functions of
her job with or without accommodation, and that she was adversely
affected by DHMC’s actions because of her disability. Thornton
v. United Parcel Serv., Inc., 587 F.3d 27, 34 (1st Cir. 2009).
When, as here, the plaintiff lacks direct evidence of
discrimination, she may prove her claim by first making a prima
facie showing of the elements of the claim, which shifts the
burden to the defendant “to articulate a legitimate, non-
discriminatory reason for its action.” Ramos-Echevarria v.
Pichis, Inc., 659 F.3d 182, 186-87 (1st Cir. 2011). If the
defendant provides legitimate, nondiscriminatory reasons, the
burden moves back to the plaintiff to show that the reasons given
are merely a pretext for discriminatory animus. Id.
15 1. Post-termination applications.
Andersen applied for seven positions at DHMC after her
termination. She applied for each position through an electronic
application system, and her applications were considered by
recruiters in Recruitment Services at DHMC. The application
system did not reveal her deafness. She was not interviewed for
any of the positions.
Suzanne M. Blish, the Manager of Recruitment Services at
DHMC, explained as to each position why Andersen was not interviewed for the positions. Blish stated that other
applicants were more qualified for the receptionist position,
Andersen lacked the necessary qualifications for the provider
auditor position, her prior performance evaluations precluded the
clinical secretary position, others were more qualified and
Andersen lacked the coding background for the human resources
service center representative position, her prior performance
evaluations precluded the regulatory auditor position, the coding
advisor position was eliminated, and Andersen was not a
registered nurse as was required to be a clinical documentation
specialist. The reasons given are legitimate and
nondiscriminatory, and Andersen has not shown that those reasons
were pretextual.
2. Outplacement services with Lee Hecht Harrison.
Andersen contends that the training session she attended was
useless because she did not have an interpreter. She faults DHMC
16 for failing to provide an interpreter for that session and
contends that DHMC discriminated against her on that basis.
As DHMC points out and Andersen does not dispute, Andersen
was no longer a DHMC employee when she attended the training
session. Andersen does not provide any theory through which DHMC
would violate the ADA, the Rehabilitation Act, or RSA 354-A by
failing to provide an interpreter for a non-employee in post-
termination training. In addition, Lee Hecht Harrison was an
independent contractor, not a part of DHMC, and did not know that Andersen was deaf. Andersen does not explain why DHMC would have
a duty to provide an interpreter for services through an
independent contractor or would be required, under the cited
statutes, to inform Lee Hecht Harrison that Andersen was deaf.
Andersen did not notify Lee Hecht Harrison that she was deaf.
Further, in an email she sent to Irene Sinteff at Lee Hecht
Harrison immediately following the training, Andersen thanked
Sinteff for her efforts and said that the meeting was very
informative and very good.
Andersen has not shown that she has any evidence to prove
her claims in Counts I, II, and V based on her post termination
applications or outplacement services. Therefore, DHMC is
C. State Law Contract and Tort Claims
In addition to the discrimination claims in Counts I, II,
and V, Andersen brings state law claims for intentional
17 infliction of emotional distress, negligence, and breach of
contract (Count III), interference with economic advantage (Count
IV), respondeat superior (Count VI), and enhanced compensatory
damages (Count VII). DHMC moves for summary judgment on these
claims as barred by the release. Andersen did not respond to
summary judgment on the state law claims in her objection to
summary judgment.
The claims in Counts III, IV, VI, and VII are, for the most
part, generic restatements of Andersen’s discrimination claims and are barred by the release. In support of her breach of
contract claim in Count III, Andersen alleged that DHMC breached
the severance agreement by not providing an interpreter for her
training session with Lee Hecht Harrison. DHMC contends that it
agreed to provide outplacement services but did not provide any
warranty about the nature or quality of the services. Andersen
does not point to any provision in the severance agreement that
would obligate DHMC to provide an interpreter for her training
session. Further, as is noted above, although Andersen now
denigrates the value of the one-on-one training she received, at
the time she indicated that it was very informative.
DHMC is entitled to summary judgment on all of Andersen’s
claims.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
partial summary judgment (document no. 15) is denied. The
18 defendant’s motion for summary judgment (document no. 16) is
granted.
The defendant’s motion to challenge expert qualification
(document no. 25) is terminated as moot.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
____________________________ Joseph A. DiClerico, Jr. United States District Judge
February 26, 2015
cc: Katherine DeForest, Esq. Edward M. Kaplan, Esq. Kirk C. Simoneau, Esq. David P. Slawsky, ESq.