Champagne v. Servistar

Opinion

USCA1 Opinion

      

                 United States Court of Appeals

                     For the First Circuit

                      ____________________

                                   

    No.  97-1947

    

                      PHILLIP D. CHAMPAGNE,

                                   

                      Plaintiff, Appellant,

                                  

                                  v.

    

                      SERVISTAR CORPORATION,

                                   

                       Defendant, Appellee.

                                  

                         ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

                                

      [Hon. Frank H. Freedman, Senior U.S. District Judge]

                                  

                         ____________________

    

                                Before

                                   

                        Torruella, Chief Judge    ,

                   Boudin and Lynch, Circuit Judges.

                                 

                                   ____________________


Edward M. Pikula for appellant.

    

        Charles P. Roberts, III, with whom Haynsworth, Baldwin,

    Johnson and Greaves, Daniel Finnegan, and Bulkley, Richardson

    and Gelinas were on brief, for appellee.

    

                       ____________________

                                

                         March 12, 1998

                                     ____________________      LYNCH, Circuit Judge.  Phillip D. Champagne sued his

    former employer Servistar Corporation under the Americans with

    Disabilities Act of 1990, 42 U.S.C.  12101-12213.  Champagne,

    a truck driver, alleged that Servistar unlawfully terminated

    his employment because he was disabled.  His disability, he

    said, was that he suffered from emotional disorders which

    required him to drive only familiar routes, avoid high bridges,

    and not rotate truck routes as did other Servistar drivers. 

    Champagne also alleged that his termination was in retaliation

    for his filing disability discrimination charges and that

    Servistar threatened to withdraw the workplace accommodation it

    had earlier given him.  The district court rejected these

    claims in a carefully reasoned opinion granting summary

    judgment.  We affirm.

                                 I                As summary judgment has been granted, we review the

    facts in the light most favorable to Champagne and will draw

    all reasonable inferences in his favor.  See Soileau v.

    Guilford of Maine, 105 F.3d 12, 13 (1st Cir. 1997).  Because

    the issue of causation as to the termination of Champagne's

    employment is largely dispositive of the case, we focus

    particularly on those facts.

        Servistar is a cooperative engaged in the

    distribution of hardware, lumber, and building materials to

    approximately 3,700 owner-member stores nationwide.  In June

    1974, Servistar hired Champagne as a truck driver at its

    Westfield, Massachusetts distribution center ("Westfield

    terminal").  Champagne, one of approximately twenty regular

    truck drivers at the Westfield terminal, operated a tractor-

    trailer and delivered merchandise to stores throughout New

    England and eastern New York.

        At the time of Champagne's hiring, Servistar had a

    long-standing policy of requiring drivers to rotate their

    routes on a periodic basis.  The object of this policy was to

    better monitor driver productivity by comparing different

    drivers on the same route, obtain better feedback on customers'

    needs by gaining the perspective of numerous drivers, and

    equalize pay, work load, and overall driver responsibilities. 

    Champagne, like all Servistar drivers, was subject to this

    policy.  

        In the mid-1980's, Champagne began to develop

    emotional problems which increasingly interfered with his

    ability to rotate routes.  These problems included general

    anxiety, feelings of despair, suicidal tendencies, and a

    specific phobia of crossing bridges.  Champagne told his

    psychiatrist, Dr. Carl Saviano, that he sought to avoid bridges

    with which he was unfamiliar or thought unsafe (Champagne

    especially feared high bridges with low railings) for fear that

    he would commit suicide by driving off the bridge.  Champagne

    did not inform Servistar of his condition.  In 1988, Champagne

    asked his supervisor at the Westfield terminal to exempt him

    from route-rotation and to allow him to drive a set route. 

    Champagne's supervisor granted this request.  In 1990,

    Champagne fell into a major depression and was hospitalized for

    two weeks in the psychiatric unit at the Cooley-Dickinson

    Hospital in Northampton, Massachusetts.

        When other drivers at the Westfield terminal began to

    complain about Champagne's exemption from the route rotation

    system, Servistar's Vice President of Human Resources, Russell

    Thomas, asked Champagne to supply a medical reason for driving

    a set route.  In November 1990, Champagne produced a note from

    Dr. Saviano stating: "It is most important for Mr. Champagne's

    health that he have very regular work hours and a very regular,

    predictable schedule."  Because the note did not explain the

    nature of Champagne's problems, Thomas called Dr. Saviano for

    further explanation.  Dr. Saviano did not reveal Champagne's

    condition, but simply repeated that it would be in Champagne's

    best interest for him to continue driving the set route.  On

    this advice, Thomas asked Champagne's supervisor to leave

    Champagne on the set route, and the supervisor agreed. 

    Champagne continued to work without incident.  Indeed,

    Champagne's evaluations for 1991 through 1993 show that his

    performance was exemplary.

        In mid-1992, Servistar made managerial changes

    affecting the Westfield terminal.  Phil Hammonds became the new

    warehouse manager at the Westfield terminal, thus becoming

    Champagne's new supervisor, and Tom Brennan became Servistar's

    new Vice President of Operations.  Hammonds discovered that

    drivers at the Westfield terminal were switching routes on

    their own initiative and that three drivers, including

    Champagne, were driving set routes.  Hammonds, based on the

    medical information before him, did not believe that Champagne

    and the other individuals driving set routes suffered from

    medical disabilities preventing them from complying with the

    route-rotation requirement.  

        In early 1993, Brennan and Hammonds reinstated strict

    route rotation across the board at the Westfield terminal. 

    Routes were organized into groups of four or five routes and

    drivers were required to rotate within these groups.  On June

    14, 1993, Champagne produced another short note from Dr.

    Saviano recommending that Champagne continue to drive a set

    route.  No explanation was given nor was a claim made that

    Champagne was disabled:  "Mr. Champagne requires regular

    psychotherapy sessions.  It is essential that Mr. Champagne's

    treatment be augmented and supported by a very regular work

    schedule."  On June 17, 1993, Hammonds told Champagne by phone

    that Champagne would have to meet normal route-rotation

    requirements or go to work in the warehouse until he was able

    to do so.  On June 21, 1993, Hammonds sent written notice to

    all drivers on set routes, including Champagne, that Servistar

    expected them to drive according to rotating schedules and

    that, if they were unable to rotate routes within 30 days for

    medical reasons, they would, as an accommodation, be placed on

  light duty status and transferred to the warehouse.    Transfer

    to the warehouse would have entailed a loss of pay for

    Champagne.

        Champagne regarded his regular route as an

    accommodation to his mental condition, and he believed that the

    notice from Servistar constituted a threatened withdrawal of

    reasonable accommodation in violation of the ADA.  On July 15,

    1993, Champagne filed a disability discrimination complaint

    with the Massachusetts Commission Against Discrimination and

    the Equal Employment Opportunity Commission.  He filed a civil

    action in Massachusetts state court seeking to enjoin Servistar

    from removing him from his regular route.  The state court

    granted a temporary restraining order against Servistar. 

    Servistar complied with the TRO and, before the hearing on a

    preliminary injunction, voluntarily agreed to leave Champagne

    on the set route pending receipt of more specific information

    on Champagne's condition. 

        Champagne did not release his medical records to

    Servistar, apparently on the advice of his attorney.  Dr.

    Saviano, however, responded to Servistar's inquiries about

    Champagne's condition in a letter dated October 20, 1993.  Dr.

    Saviano informed Servistar that Champagne suffered from anxiety

    disorders caused by previous emotional injuries, and he

    reiterated his view that Champagne needed "a fixed regular

    schedule in which he travels the same route, sees the same

    people and performs the same activities routinely."  Dr.

    Saviano said that such a schedule would permit Champagne to

    control his anxieties.  "Even changes known well in advance

    could be very hurtful to his therapy and his well being."

                                 II     In the meantime, other events were unfolding.  In the

    fall of 1993, two items of information came to Hammonds'

    attention suggesting that at least some Servistar drivers were

    falsifying travel logs they are required to keep by the federal

    Department of Transportation ("DOT").  DOT regulations require

    interstate truckers to record their driving time, non-driving

    but on-duty time, and off-duty time.

        The first item of information was that a Servistar

    truck had been observed parked on a residential street for a

    period of time.  Hammonds checked the logs, which indicated the

    driver had been on duty at the time the truck was parked on the

    street.  Hammonds prepared a recommendation to fire the driver,

    believing the facts indicated that the driver was basically

  "stealing" time, and therefore pay.    When Hammonds met with

    the driver, the driver indicated he had "carried over" time

    from the prior day in order to comply with DOT regulations, but

    that he put the time in.  Hammonds decided not to fire the

    driver, but still gave the driver a written reprimand for

    falsifying the logs.

        The second item of information was the discovery that

    Champagne was making excessive use of the company telephone

    credit card that had been issued to him.  Servistar issues

    phone cards to all drivers and drivers are allowed one fifteen

    minute call per day.  Supervisor Jim Atwater noticed that

    Champagne's phone bill for September 1993 listed more than

    sixty calls, some lasting more than an hour.  Atwater brought

    the phone bill to Hammonds' attention.  Hammonds decided to

    take no action against Champagne on the excessive phone use. 

    Hammonds also noticed that many of the calls had been made

    during the middle of the day when Champagne would ordinarily be

    driving.  Hammonds called the number from which Champagne had

    made these mid-day calls and learned that the source was a

    Holiday Inn in Ronkonkoma, New York.  Hammonds cross-checked

    the phone records against Champagne's logs.  He discovered that

    Champagne had recorded that he had been driving or was

    otherwise on-duty during those times when phone records showed

    he was making calls.  By recording more driving time than he

    had actually performed, Champagne had been paid money he was

    not properly owed.

        Upon learning this, Servistar consulted legal counsel

    and decided to audit the logs and phone records of all

    Westfield terminal drivers when the following month's phone

    records came in, as well as to audit drivers in other locations

    randomly.  Servistar realized that the phone card records gave

    it a way to test the accuracy of its drivers' logs.  The all-

    driver audit was conducted the following month, in November

    1993, on the October 1993 phone bills.  It revealed that four

    drivers, including Champagne, had falsified their DOT logs by

    recording they were driving at times when phone records showed

    they were making calls.  Servistar did not take immediate

    action on these individuals, but decided to investigate further

    to see if a pattern existed.  Servistar reaudited the four

    drivers the following month and discovered that three of the

    drivers, including Champagne, had multiple violations during

    that month as well.  The fourth driver had only one violation.

        Servistar decided to terminate the employment of the

    three drivers who had multiple violations, including Champagne,

    and to give a written warning to the fourth driver.  Hammonds,

    Brennan and another supervisor met individually with each of

    the three drivers who were to be fired.  Each was given copies

    of records and shown the violations.  Champagne did not dispute

    the evidence.  In fact, Champagne said, he had been falsifying

    his DOT logs for twenty years and he did so because he did not

    want speeding violations showing in his logs.  Champagne said

    this was common practice among Servistar drivers and something

    Servistar itself knew about and encouraged.  On January 20,

    1994, Servistar fired Champagne and the two other drivers.

        Since these terminations, Servistar has continued to

    perform random cross-checks of drivers' logs against their

    phone bills.  In late 1994, Servistar discharged another driver

    for log violations.  In his twenty-five years with Servistar,

    Brennan has also terminated three other drivers for log

    violations.

        Champagne says that Servistar knew that its drivers

    routinely violated DOT log regulations, and that the use of

    such violations to terminate him masks Servistar's real

    intention to discriminate against him on account of his

    disability and retaliate for his filing a discrimination charge

    against the company.  Champagne's specific evidence on this

    point is discussed below.

                                III     On January 27, 1995, the EEOC issued Champagne a

    "Right to Sue" letter.  Champagne withdrew his state court

    action and, on February 21, 1995, filed this federal lawsuit. 

    Champagne alleged that Servistar discriminated against him

    because he was disabled in violation of 42 U.S.C.  12112(a),

    that Servistar fired him in retaliation for his filing a

    discrimination charge in violation of 42 U.S.C.  12203(a), and

    that Servistar had threatened to withdraw his workplace

    accommodation in violation of 42 U.S.C.  12203(b).  Servistar

    counterclaimed for damages alleging breach of fiduciary duty,

    and fraud and deceit.

        Servistar moved for summary judgment on Champagne's

    claims and its counterclaims.  The district court granted

    Servistar's motion as to Champagne's claims, holding that

    Champagne did not meet the statutory definition of disability,

    and that his evidence of retaliation or threat was insufficient

    to overcome Servistar's legitimate and nondiscriminatory

    explanation.  The district court denied summary judgment as to

    Servistar's counterclaims.  Champagne appeals the granting of

    summary judgment as to his three claims.

                                 IV     The scope of our review over the district court's

    entry of summary judgment in favor of Servistar is de novo. 

    See Soileau, 105 F.3d at 14.  Summary judgment is appropriate

    when the evidence shows "that there is no genuine issue as to

    any material fact and that the moving party is entitled to

    judgment as a matter of law."  Fed. R. Civ. P. 56(c).  

        Champagne says he has suffered harm from two sources: 

    (1) the termination of his employment, which he says resulted

    from discrimination or retaliation or both, and (2) the

    memorandum notifying him he would have to return to rotating

    routes or work in the warehouse, which he says was a threat to

    withdraw the accommodation Servistar was obligated to grant

    him. 

    A.  Termination and Retaliation

        As to the first harm, the district court carefully

    parsed Champagne's discrimination and retaliation claims, and

    concluded that Champagne did not meet the statutory definition

  of disabled   and that his evidence of retaliation was

    insufficient.  We take a shorter route.  We have no doubt that

    Champagne suffered from a mental impairment, a first step

    toward establishing disability under the ADA.  But even if

    Champagne could establish he was disabled within the meaning of

    the ADA, his case on termination fails on the issue of

    causation.  Champagne has not produced evidence from which a

    finder of fact could reasonably find that Servistar "discharged

    [him] in whole or in part because of [his] disability,"  Equal

    Employment Opportunity Comm'n v. Amego, Inc., 110 F.3d 135, 141

  n.2 (1st Cir. 1997),   or that there was a "causal connection

    between [his] discharge and the conduct" of filing an ADA

  complaint.  Soileau, 105 F.3d at 16.    

        Servistar has produced considerable proof that

    Champagne was dismissed because he falsified the DOT log books

    in violation of company policy and DOT regulations, and thereby

    obtained unearned pay.  This proof comes from Servistar's

    cross-referencing the phone records against DOT logs for all

    Westfield terminal drivers, not just Champagne.  This audit

    proved that three drivers, including Champagne, were falsifying

    their DOT logs on a regular basis.  Champagne does not

    challenge the accuracy of the telephone records demonstrating

    that Champagne was in the motel room making calls during times

    he was supposed to be driving, nor does he contest that he

    falsified his logs.  Servistar terminated all three who had

    multiple violations, not just Champagne.  Servistar has fired

    other drivers since that time for the same violations.

        This evidence meets Servistar's burden of

    articulating a legitimate and nondiscriminatory reason for

    terminating Champagne.  Under the McDonnell Douglas framework,

    see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),

    the burden shifts back to Champagne to show that Servistar's

    proffered reason is a pretext for discrimination based on

    disability, see Mesnick v. General Elec. Co., 950 F.2d 816,

    823-24 (1st Cir. 1991), or for retaliation, see id. at 827-28. 

    To make this showing, "[i]t is not enough for [Champagne]

    merely to impugn the veracity of [Servistar's] justification;

    he must elucidate specific facts which would enable a jury to

    find the reason given is not only a sham, but a sham intended

    to cover up the employer's real motive."  Id. at 824 (internal

    quotation marks and citation omitted).

        Champagne's response is twofold.  His first argument

    is that consideration of the larger context of events compels

    the conclusion that he was terminated because of discrimination

    or retaliation.  His second argument is that the alleged

    misconduct for which he was fired was something which all

    Servistar drivers did, not just Champagne.  As to context,

    Champagne notes that he was terminated only six months after he

    filed his discrimination complaint, despite years of good

  performance evaluations.    Moreover, he says, the June 21 memo

    requiring all drivers to rotate routes, after Servistar had for

    years allowed him to drive a set route, shows discriminatory

    animus.  As to his misconduct, Champagne provided an affidavit

    from a fellow driver, Jerry Gilbert, that "[t]he actions of

    Phillip Champagne of logging time which alleges drive time

    logged in longer than the time actually driven, was a common

    practice within the ranks of Servistar's truck drivers, and

    this fact was known by the supervisors of the truck drivers

    prior to Champagne's termination."

        The Gilbert affidavit is Champagne's strongest

    evidence, but it does not suffice, either alone or with the

    context evidence, to permit a reasonable inference that

    Champagne's firing was motivated by discrimination and

    retaliation.  Accepting as true that historically some

    Servistar drivers falsified logs, it is undisputed that the two

    new managers of the Westfield terminal decided to do something

    about the problem when it was brought to their attention.  The

    test these managers devised to determine if there had been

    falsification of records -- comparing phone records with

    driving logs -- was plainly neutral.  It is undisputed that

    this test was applied equally to everyone.  It is undisputed

    that the test turned up four offenders, including Champagne,

    that the employer applied the same test equally to each of

    these four for a second month to determine if there was a

    pattern, and that when the second test showed three of the four

    had repeatedly falsified their logs, including Champagne, they

    were treated equally:  each had his employment terminated.  And

    it is undisputed that Servistar has continued to cross-

    reference phone records against driving logs on a random basis

    and terminate those who the test shows falsified the log.  No

    inference of discrimination or retaliation may reasonably be

    drawn from these facts.  That others may have turned up clean

    on the test although they had falsified logs, or that others in

    the past had falsified logs but not been caught, adds nothing

  to Champagne's case.    More specifically, Champagne produced no

    evidence that audits were conducted in the past or that the

    company retained drivers who were shown by an audit to have

    repeatedly falsified records.

        The contextual evidence offered to show Servistar's

    motive to discriminate or retaliate against Champagne is also

    insufficient, and in any event cannot overcome the fact that

    Champagne was treated no differently than his fellow drivers. 

    Given the absence of differential treatment, the district court

    properly concluded that Champagne had failed to produce

    evidence of causation sufficient to survive summary judgment.

    B.  Threatened withdrawal

        Champagne finally claims that Servistar unlawfully

    threatened his enjoyment of a reasonable accommodation under

    the ADA when he filed a disability discrimination charge with

    MCAD and EEOC on July 15, 1993.  The threat, he claims, came in

    the form of the June 21 memorandum.  That memo stated that

    Champagne, along with all others driving a set route, would be

    required to drive rotating routes thirty days from the date of

    the memo.  The memo explained: "[Y]ou must perform all the

    essential functions of your truck driving position.  Rotation

    of routes within a scheduled departure group is an essential

    function of the truck driver position at SERVISTAR."   The memo

    further explained that Champagne would be reassigned to light

    duty in the warehouse if "medical restrictions keep you from

    rotation within a scheduled departure group. . . . This

    accommodation will continue until your medical condition

    permits you to perform the essential functions of truck

    driving."

        On the evidence, Champagne's claim does not survive. 

    He relies on part of the ADA's anti-retaliation statute, 42

    U.S.C.  12203(b):

        It shall be unlawful to coerce,

        intimidate, threaten, or interfere with

        any individual in the exercise or

        enjoyment of, or on account of his or her

        having exercised or enjoyed, or on account

        of his or her having aided or encouraged

        any other individual in the exercise or

        enjoyment of, any right granted or

        protected by this chapter.

    

    It is doubtful Champagne has shown that he had "exercised a

    right granted or protected by the ADA."  Before he filed his

    EEOC complaint, Champagne had not asserted he was disabled

    within the meaning of the ADA.  He certainly never provided

    Servistar with any medical evidence from which a conclusion of

    disability, as defined in the ADA, was warranted.  That

    Servistar voluntarily decided to permit Champagne to avoid

    route-rotation for a period of time does not establish that

    Champagne was disabled or that avoidance of route-rotation was

    a required reasonable accommodation.

        In this context, like the district court, we do not

    think the memorandum may be reasonably viewed as a threat or

    interference under  12203(b).  Under the ADA, Servistar has

    substantial leeway in defining the essential functions of its

    truck driving positions, and it may require its drivers to be

  able to perform those functions.  See 42 U.S.C.  12111(8).   

    It is true that other Servistar managers had not enforced the

    route-rotation policy strictly or cross-checked phone records

    against DOT logs in the past.  But that does not permit the

    conclusion that the decision by new managers to enforce company

    policy, and to audit for non-compliance, is a threat or

    interference with ADA rights.  We stress that the decision of

    new managers to enforce the policy was applied uniformly.  The

    district court properly granted summary judgment in favor of

    Servistar on this claim.     

        The decision of the district court is affirmed. 

    Costs are awarded to the defendant.