UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David F. Cass
v. Civil No. 17-cv-313-JD Opinion No. 2018 DNH 157 Airgas USA, LLC
O R D E R
David F. Cass brings suit against his former employer,
Airgas USA, LLC, alleging claims under state and federal law for
discrimination because of his sleep apnea, retaliation against
him for his complaints about discrimination, violation of the
Whistleblower’s Protection Act RSA chapter 275-E, and wrongful
constructive discharge. Airgas has moved for summary judgment.
Cass objects.
Standard of Review
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, examining the evidence and
drawing all reasonable inferences helpful to the party resisting
summary judgment, could resolve the dispute in that party’s
favor.” Town of Westport v. Monsanto Co., 877 F.3d 58, 64-65
(1st Cir. 2017) (internal quotation marks omitted); Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). The facts and
reasonable inferences are taken in the light most favorable to
the nonmoving party. McGunigle v. City of Quincy, 835 F.3d 192,
202 (1st Cir. 2016).
“On issues where the movant does not have the burden of
proof at trial, the movant can succeed on summary judgment by
showing ‘that there is an absence of evidence to support the
nonmoving party’s case.’” OneBeacon Am. Ins. Co. v. Commercial
Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
If the moving party provides evidence to show that the nonmoving
party cannot prove a claim, the burden shifts to the nonmoving
party to show that there is at least a genuine and material
factual dispute that precludes summary judgment. Woodward v.
Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013).
Under the local rules in this district, a party moving for
summary judgment must “incorporate a short and concise statement
of material facts, supported by appropriate record citations, as
to which the moving party contends there is no genuine issue to
be tried.” LR 56.1(a). A party opposing the motion must also
incorporate a statement of material facts with appropriate
record citations to show that a genuine factual dispute exists.
LR 56.1(b). “All properly supported material facts set forth in
2 the moving party’s factual statement may be deemed admitted
unless properly opposed by the adverse party.” Id.
Airgas did not incorporate its statement of material facts
in its memorandum in support of summary judgment and instead
filed a separate factual statement. Cass stated in a footnote
in his objection to the motion for summary judgment that Airgas
did not provide a factual statement in support of its motion and
did not note the disputed facts, as required by LR 56.1.1 Cass
included a section in his memorandum titled “Statement of
Facts,” but identified the disputed facts in a chart, rather
than in a narrative statement of facts. Cass also provided a
response to Airgas’s facts but did not provide record citations.
In its reply, Airgas states that “Cass failed to comply with
Local Rule 56.1(b) because he has not properly identified any
facts contained in Airgas’s Statement of Material Facts to which
he objects.” Doc. no. 20, at *1. Cass responded that Airgas
had made no attempt to comply with LR 56.1.
Airgas erred in filing a separate factual statement, in
support of its motion for summary judgment, which should have
been incorporated into the memorandum. LR 56.1(a). In
1 The moving party is required to incorporate a factual statement with record citations to show the undisputed facts. Contrary to Cass’s theory, there is no requirement in LR 56.1 that the moving party identify disputed facts. Identifying material disputed facts is the job of the nonmoving party.
3 addition, Airgas’s memorandum is twenty-one pages, and the
separate factual statement is ten pages, making the total length
thirty-one pages. A memorandum in support of summary judgment
is limited to twenty-five pages, and Airgas did not seek leave
to file a memorandum in excess of that limit. LR 7.1(a)(3).
Although presented in an unusual format, Cass did identify
disputed facts with citations to the record in the chart. Cass
also provided a “Response to Defendant’s Factual Background,”
which includes some record citations, but not all statements are
properly supported. Additional facts that Cass provided only in
the argument section of his memorandum are not properly
presented under LR 56.1.
Therefore, neither Airgas nor Cass fully complied with the
requirements of LR 56.1. The court could impose sanctions for
failure to comply with LR 56.1 and require Airgas to refile the
motion. LR 1.3. It is unfortunate that neither counsel took
care to follow the local rules. Had they done so, they and the
court would not be spending time and resources discussing the
matter. To avoid unnecessary delay, the court will consider the
papers as filed.
Background
Airgas represents that its business is to supply “gases,
and related equipment and supplies, to customers in a host of
4 industries.” Doc. 10-2, ¶ 1. Cass was a Specialty Air Gas
Filler Analyst at Airgas’s facility in Salem, New Hampshire, who
worked on the second shift from 2:00 p.m. to 11:00 p.m. He had
worked for Airgas for about twenty-one years in total during two
different employment periods. His job was to analyze gases,
liquids, and carbon dioxide, stored in metal cylinders, to
determine whether they met industry standards.
While employed at Airgas, Cass suffered from sleep apnea.
He fell asleep during safety meetings, and a manager or another
employee would often say as Cass walked into a meeting, “don’t
fall asleep.” Cass states that the most recent time he fell
asleep during a meeting was February of 2014.
During the spring of 2014, Cass found a carbon dioxide
cylinder that was contaminated and noted a noxious odor. He
quarantined the cylinder and brought it to the attention of his
manager, Tom Trobley. Cass also reported a safety concern to
his manager about a large bulk oxygen tank located next to an
outdoor electrical panel that was covered by a tarp. Cass
believed that arrangement was dangerous because water could get
into the panel which could then cause the tank to explode. When
that situation was not changed, Cass discussed it during a
safety meeting.
Airgas represents that in July of 2014, a supervisor found
Cass sleeping at his desk in the laboratory. Although Cass
5 disputes that the supervisor saw him asleep, he does not dispute
that he was drowsy and fell asleep while working. Airgas’s
Safety Program Manager, Dana Leith, the human resources
representative, Patty Wachel, and Cass’s supervisor, Matt
Kachur, conferred about the incident because Airgas thought
Cass’s work was “safety-sensitive.” Leith, Wachel, and Kachur
decided that Cass should undergo a “fitness-for-duty
examination.” Cass disputes that his job was “safety-
sensitive.”
The plant manager, Jason Lattig, met with Cass. Cass told
Lattig that he was feeling fatigued. Cass had been evaluated
for sleep apnea in 2013 by Dr. George Neal at the New England
Sleep Center, Catholic Medical Center. In addition, Cass’s
primary care doctor, Dr. Stephen Michaud, had prescribed a CPAP
machine to treat his sleep apnea. Cass told Lattig that he had
not been using the CPAP machine as frequently as Dr. Michaud
recommended. Lattig told Cass that he would have to have a
fitness-for-duty evaluation.
On July 23, 2014, Cass was evaluated at Salem Occupational
& Acute Care. The report stated that he could perform the
essential job functions as were listed on “the provided job
description.”2 Doc. no. 10-6, at 196. He returned to work after
2 The job description was not included with the report.
6 the evaluation. The evaluation report recommended that Cass be
re-evaluated after seeing a specialist for sleep apnea and
obtaining a report about Cass’s use of a CPAP machine.
In response to the recommendation, Cass made an appointment
with Dr. Michaud about his sleep apnea and his fitness for work.
Dr. Michaud provided a statement dated September 17, 2014, in
which he said that his “only concern would be [Cass’s] diagnosis
of severe sleep apnea. If this is inadequately treated, I would
have concerns about daytime fatigue and his safe operation of a
forklift.” Doc. 10-6, at 197.
Cass also saw Dr. Neal again on September 30, 2014. Dr.
Neal reported to Dr. Michaud that Cass used his CPAP machine an
average of thirty minutes on only 65 days out of 365 days. Dr.
Neal noted that was not adequate use of the machine. Cass asked
Dr. Neal about driving a forklift, and Dr. Neal responded that
he should not do that because of his drowsiness. Dr. Neal also
discussed the risks of drowsy driving with Cass. He suggested a
return visit in four to six weeks.
A forklift was used to transport the metal gas cylinders in
and out of the laboratory where Cass worked. The parties
dispute whether operating a forklift was an essential part of
Cass’s job. Cass states that although he did occasionally
operate a forklift to move cylinders, he did it for convenience
not as an essential part of his job. He also states that his
7 supervisors did not want him to operate the forklift to move
cylinders because it took him away from his work in the
laboratory. After the issue arose about fatigue and the
evaluation for fitness for work, Cass did not operate forklifts.
Cass submits an affidavit from another Airgas employee,
Scott Thorpe, who states that he was diagnosed with narcolepsy
and sleep apnea more than ten years before Cass’s fatigue issue
arose. Thorpe states that he can fall asleep instantly and that
Airgas is aware of his diagnoses. He further states that
despite his diagnoses and several warnings for knocking over gas
cylinders and mislabeling, Airgas allows him to operate
forklifts and has never required him to undergo fitness-for-duty
testing as was required of Cass.3
In October of 2014, a doctor evaluated Cass’s fitness for
duty on behalf of Concentra Medical Centers, Airgas’s “third-
party medical provider.” The doctor also reviewed Dr. Neal’s
report. He found that Cass could not perform the essential
functions of his work because of fatigue caused by sleep apnea,
which could be helped with regular use of the CPAP machine.
Concentra scheduled a follow-up appointment in thirty days.
Wachel, Leith, and Kachur decided that Airgas should put
Cass on a paid leave of absence from work for a month, from
3 Thorpe did have testing done related to obtaining a “CDL license.”
8 October 3, 2014, to November 6, 2014. On November 3, Cass saw
another doctor from Concentra for the follow-up examination.
His CPAP machine record showed that he was using it for more
than four hours only 43% of the time.4 The doctor told Cass he
could return to work if his usage increased to 70%.
A week later, the record showed usage for 70% of the time,
and Concentra cleared Cass to return to work with a follow-up on
December 5. Cass returned to work and resumed his duties. At
the follow-up appointment, Cass’s records showed good CPAP usage
and he was cleared to continue work. Concentra’s report
required monitoring Cass’s CPAP usage for four additional
months.
Leith notified Cass that he would have to submit his CPAP
machine readings to Concentra for four more months. After that,
however, Wachel, Kachur, and Leith decided that Concentra should
monitor Cass’s CPAP machine usage for six months. On January
14, 2015, Leith sent Cass a letter informing him that he was
cleared to work but was required to continue to send the
readings from his CPAP machine to Concentra for six months.
Cass and his wife expressed concern about the continued
reporting requirement for Cass’s CPAP machine usage. Wachel
4 Cass explains in his affidavit that his CPAP machine usage was recorded on a chip in the machine which he took to his “sleep doctor’s office” to get a printout to take to the fitness-for-duty evaluations.
9 scheduled a meeting to discuss the matter but then rescheduled
the meeting. Cass states in his affidavit that he and his wife
met with a Concentra supervisor at Concentra on January 26,
2015, who told them that “they only do what Airgas tells them to
do.” Cass also understood that “they were not sure why Airgas
started sending me for fit for duty testing to begin with.”
Doc. 18-2, at 18. Before meeting with Wachel, Cass resigned
from his job on February 5, 2015.
Cass filed suit in state court on June 14, 2017. Airgas
removed the case to this court. Cass brings the following
claims: Count I, Disability Discrimination/Hostile Work
Environment under RSA chapter 354-A; Count II, Disability
Discrimination/Hostile Work Environment under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101; Count III,
Disability Discrimination/Failure to Accommodate under RSA
chapter 354-A; Count IV, Disability Discrimination/Failure to
Accommodate under the ADA; Count V, Retaliation under RSA
chapter 354-A; Count VI, Retaliation under the ADA; Count VII,
violation of the Whistleblower’s Protection Act, RSA chapter
275-E; and Count VIII, Wrongful (Constructive) Discharge.
Airgas removed the case to this court.
10 Discussion
Airgas moves for summary judgment on the grounds that Cass
cannot prove that he was constructively discharged or that he
was subjected to a hostile work environment, that he never
requested an accommodation for his sleep apnea, that he cannot
show retaliatory animus, and that he cannot prove his claims for
violation of the Whistleblower Protection Act or wrongful
discharge. In response, Cass argues that material factual
disputes preclude summary judgment and that he can prove his
claims. Airgas filed a reply, and Cass filed a surreply.
A. Adverse Employment Action
Airgas contends that Cass’s claims in Counts I, II, V, VI,
VII, and VIII depend on showing that he was constructively
discharged and argues that Cass cannot make that showing.
Airgas also contends that Cass cannot prove a hostile work
environment. Cass objects.
In Count I, Cass alleges disability discrimination under
RSA chapter 354-A, and in Count II he alleges the same
discrimination under the ADA. In Count V he alleges retaliation
in violation of RSA chapter 354-A, and in Count VI he alleges
retaliation in violation of the ADA. “As both this court and
the New Hampshire Supreme Court have recognized, claims under
Section 354-A are construed in conformity with the ADA.” Gage
11 v. Rymes Heating Oils, Inc., 2016 WL 843262, at *5, n.5 (D.N.H.
Mar. 1, 2016) (citing cases); see also Posteraro v. RBS
Citizens, N.A., 159 F. Supp. 3d 277, 288 (D.N.H. 2016).
To establish a claim of disability discrimination based on
an adverse employment action under the ADA, a plaintiff must
show that “(1) she was disabled within the meaning of the ADA,
(2) she was qualified to perform the essential functions of her
job, either with or without reasonable accommodations, and (3)
her employer took adverse action against her because of her
disability.” Sanchez-Figueroa v. Banco Popular de P.R., 527
F.3d 209, 213 (1st Cir. 2008). To prove an ADA retaliation
claim, a plaintiff must show that he engaged in conduct
protected under the ADA, he was subject to an adverse employment
action, and that there was a causal connection between the
protected conduct and the adverse action. Sepulveda-Vargas v.
Caribbean Restaurants, LLC, 888 F.3d 549, 555 (1st Cir. 2018).
A hostile work environment and constructive discharge constitute
adverse employment actions under the ADA. Id. at 556; Parker v.
Accellent, Inc., 2014 WL 6071550, at *9 (D.N.H. Nov. 13, 2014);
Pabon-Ramirez v. MMM Health Care, 2013 WL 1797041, at *7 (D.P.R.
Apr. 29, 2013).
In Count VII, Cass alleges violation of New Hampshire’s
Whistleblower Protection Act, RSA chapter 275-E, stating that
Airgas “harassed abused, intimidated, threatened, and otherwise
12 discriminated against [him] in the terms, conditions, location,
and/or privileges of employment, and constructively discharged
him because of his reporting (whistleblowing).” Compl. Doc. 1,
¶ 74. To prove a claim under RSA 275-E:2, a plaintiff must show
that he suffered an employment action prohibited by the Act,
such as discharge from employment.5 In Count VIII, Cass alleges
a claim for wrongful constructive discharge under New Hampshire
law. The standard for a claim of constructive discharge is the
same as the standard for constructive discharge in the context
of disability discrimination and retaliation. See Porter v.
City of Manchester, 151 N.H. 30, 42 (2004); see also Gallagher
v. Unitil Service Corp., 2015 WL 5521794, at *7 (D.N.H. Sept.
17, 2015). Therefore, the constructive discharge element of the
state law claims in Counts VII and VIII is addressed along with
constructive discharge for purposes of the disability
discrimination and retaliation claims.
a. Constructive Discharge
“Constructive discharge typically refers to harassment so
severe and oppressive that staying on the job while seeking
redress—the rule save in exceptional cases—is intolerable.”
Gerald v. Univ. of P.R., 707 F.3d 7, 25 (1st Cir. 2013)
Airgas does not dispute that constructive discharge is an 5
employment action prohibited by RSA 275-E:2.
13 (internal quotation marks omitted). “A successful constructive
discharge claim requires ‘working conditions so intolerable that
a reasonable person would have felt compelled to resign.’” Id.
(quoting Penn. St. Police v. Suders, 542 U.S. 129, 147 (2004));
see also E.E.O.C. v. Kohl’s Dept. Stores, Inc., 774 F.3d 127,
134 (1st Cir. 2014); Porter, 151 N.H. at 42 (“Constructive
discharge occurs when an employer renders an employee’s working
conditions so difficult and intolerable that a reasonable person
would feel forced to resign.”). Further, “[t]he standard to
meet is an objective one, it cannot be triggered solely by an
employee’s subjective beliefs, no matter how sincerely held.”
Gerald, 707 F.3d at 25 (internal quotation marks omitted).
Airgas argues that no reasonable person would find the
fitness-for-duty requirements to be so severe and oppressive as
to make Cass’s job intolerable. Airgas further argues that
Cass’s job was “safety sensitive,” in addition to driving a
forklift, so that Cass’s fatigue and falling asleep justified
Airgas’s requirements. Airgas contends that it took reasonable
measures to address Cass’s fatigue and that he was unreasonably
sensitive to the requirements. Airgas also contends that Cass
cannot claim constructive discharge because he quit before
meeting with Wachel to discuss his concerns.
Cass contends that he was forced to resign from his job,
constructively discharged, because Airgas required him to
14 undergo fitness-for-duty evaluations, to use his CPAP machine,
and to submit the record of his CPAP machine usage for review by
Concentra. He further contends that Airgas’s requirements were
unnecessary because driving a forklift was not an essential part
of his job and were imposed in violation of the ADA. Because he
believed that Airgas’s focus on his sleep apnea and fatigue was
unnecessary, he felt that Airgas was harassing him by imposing
the fitness-for-duty requirements. He found the requirements
burdensome and was worried about keeping his job. Cass also
asserts that the ADA prohibits employers from requiring
employees to undergo involuntary medical examinations.
i. Airgas’s Requirements
The fitness-for-duty evaluations and monitoring
requirements that Airgas required were not so oppressive and
onerous as to be intolerable, leaving Cass the only option of
resigning. While Cass apparently found them burdensome, the
standard is objective. Cass’s own doctors recommended that he
use the CPAP machine regularly and expressed concern about his
ability to work and even to drive if he did not use the machine
properly. Therefore, Airgas’s requirements, on their own, do
not rise to the level of constructive discharge.
Citing 42 U.S.C. § 12112(d)(4), however, Cass argues that
Airgas’s requirements were illegal under the ADA, making the
15 requirements intolerable as a matter of law.6 Airgas does not
dispute Cass’s theory that if the requirements violated the ADA
they would constitute constructive discharge for purposes of his
claims. Instead, Airgas contends that the requirements did not
violate § 12112(d)(4).
Under the ADA, “[a] covered entity shall not require a
medical examination and shall not make inquiries of an employee
as to whether such employee is an individual with a disability
or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent
with business necessity.” 42 U.S.C. § 12112(d)(4)(A). On the
other hand, however, an employer may require an examination or
make inquiries about the nature and severity of a disability if
the “examination or inquiry is shown to be job-related and
consistent with business necessity.” Id. Stated in other
terms, an employer “may make inquiries into the ability of an
6 Cass did not bring a claim under § 12112(d)(4) that Airgas violated the ADA by improperly requiring examinations. Therefore, that claim is not considered here. Cf. Kowitz v. City of Portland, 2018 WL 3521394, at *9 (D. Or. July 20, 2018); Glover v. Brown, 2018 WL 3241072, at *2 (E.D. Cal. July 2, 2018); Jackson v. Regal Beloit Am., Inc., 2018 WL 3078760, at *6 (E.D. Ken. June 21, 2018) (discussing claim under § 12112(d)(4) that challenged an improper medical examination); Benjamin v. Consolidated Edison Co. of N.Y., Inc., 2018 WL 1406620, at *1 (S.D.N.Y. Mar. 20, 2018). Instead, Cass cites the statute only to show that Airgas’s requirements were sufficiently onerous to support constructive discharge.
16 employee to perform job-related functions.” 29 C.F.R.
§ 1630.14(c).
Although the First Circuit has not addressed the issue,
other circuit courts have interpreted job relatedness and
consistency with business necessity for purposes of
§ 12112(d)(4). “Medical inquiries and examinations are job-
related and consistent with business necessity when an employer
has a reasonable belief, based on objective evidence, that an
employee’s ability to perform an essential job function is
impaired or that an employee will present a threat to himself or
others because of a medical condition.” Painter v. Illinois
Dep't of Transportation, 715 Fed. Appx. 538, 541 (7th Cir. 2017)
(citing EEOC Enforcement Guidance: Disability-Related Inquiries
and Medical Examinations of Employees under the Americans with
Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html#6; Pena
v. City of Flushing, 651 Fed. Appx. 415, 421-22 (6th Cir. 2016);
Brownfield v. City of Yakima¸ 612 F.3d 1140, 1146 (9th Cir.
2010); Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007). It
is the employer’s burden to show that its requirements or
inquiries are job related and consistent with business
necessity. Kowitz, 2018 WL 3521394, at *9.
As is noted above, the parties dispute whether driving a
forklift was an essential function of Cass’s job. They also
17 dispute whether Cass’s job was safety sensitive. Cass does not
dispute, however, that staying awake at work was an essential
function of his job. Therefore, whether or not Cass was
required to drive a forklift and whether or not his job was
safety sensitive, he was required to stay awake in order to
work. Contrary to that requirement, he had fallen asleep while
working in the laboratory and had fallen asleep during safety
meetings. He also acknowledged that he was fatigued and drowsy
at work.7
Cass also does not dispute that he had already been
prescribed a CPAP machine to address his sleep apnea and
resulting fatigue. He does not dispute that he was not using
the CPAP machine as prescribed or that his lack of use caused
him to be fatigued and drowsy at work. Therefore, Airgas’s
inquiries and requirements that Cass undergo fitness-for-duty
evaluations with the resulting recommendation about using his
CPAP machine and monitoring his use were job-related and
consistent with business necessity.
7 Cass attempts to minimize his drowsiness by arguing that he had only fallen asleep once in the laboratory and by citing Airgas’s lack of attention to Scott Thorpe’s sleep apnea and narcolepsy diagnoses. While additional episodes of falling asleep would certainly be even more concerning, Cass did fall asleep during work on several occasions-once in the laboratory when his manager found him asleep and other times during safety training meetings. No more is necessary to raise the legitimate concerns of Airgas about his fitness to work. Cass provides no evidence that Airgas had found Thorpe asleep at work.
18 ii. Premature Decision to Resign
The constructive discharge element of Cass’s claims fails
for an additional reason. An employee cannot show constructive
discharge if he “assume[d] the worst” rather than accepting an
opportunity to talk with the employer. Kohl’s, 774 F.3d at 134.
Here, Wachel, Airgas’s human resources representative, planned
to meet with Cass and his wife to discuss their concerns about
Airgas’s requirements. Cass, however, resigned before the
meeting occurred. Therefore, Cass resigned prematurely, before
attempting to resolve the issues about his fatigue and Airgas’s
fitness-for-duty requirements.
b. Hostile Work Environment
Airgas also contends that Cass cannot show that he was
subjected to a hostile work environment based on his disability.
A hostile work environment theory requires “evidence that the
discriminatory [or retaliatory] conduct was sufficiently severe
or pervasive so as to alter the conditions of employment and
create an abusive work environment.” Murray v. Warren Pumps,
LLC, 821 F.3d 77, 86 (1st Cir. 2016); Noviello v. City of
Boston, 398 F.3d 76, 90 (1st Cir. 2005). To constitute an
adverse employment action, the harassment must be both
“objectively and subjectively offensive, one that a reasonable
person would find hostile or abusive, and one that the victim in
19 fact did perceive to be so.” Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998).
Although Cass found Airgas’s requirements for evaluation
and monitoring to be burdensome and he worried about whether he
would keep his job, he has not shown that objectively those
requirements were sufficiently severe or pervasive so as to
alter his employment. Cass provides no evidence that he was
subjected to any harassment at work about his sleep apnea.
While he objects to the medical monitoring related to his
fitness for his job, as is discussed above in the context of
constructive discharge, he has not shown that he was subjected
to intolerable conditions.
c. Outcome
Cass has not shown a triable issue as to whether he was
constructively discharged or subjected to a hostile work
environment. As a result, he cannot prove an element of his
claims alleged in Counts I, II, V, VI, and VIII.8 Count VII is
addressed separately below because RSA 275-E:2 lists other
8 In his objection to the motion for summary judgment, Cass mentions that he believes he was not sufficiently compensated during the leave of absence. Airgas asserts that it was a paid leave of absence. To the extent Cass now raises compensation during the leave of absence as an adverse employment action, he failed to allege that theory in his complaint and cannot amend the complaint through arguments made in his objection to summary judgment. See Carson v. Ocwen Loan Servicing LLC, 2017 WL 1183960, at *9, n.99 (D. Me. Mar. 29, 2017).
20 prohibited acts in addition to discharge. Airgas is entitled to
summary judgment on Counts I, II, V, VI, and VIII.
B. Accommodation
In Counts III and IV, Cass alleges that Airgas violated the
ADA and RSA chapter 354-A by failing to provide a reasonable
accommodation for his limitation of not being able to operate a
forklift. An employer is required to make reasonable
accommodation for the known physical or mental limitations of a
qualified individual with a disability. § 12112(b)(5)(A); RSA
354-A:7, VII(a). “An employee must explicitly request an
accommodation, unless the employer otherwise knew one was
needed.” Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89
(1st Cir. 2012).
Airgas contends that Cass cannot show that he requested an
accommodation for his disability related to operating a forklift
because he had previously asked to be excused from operating a
forklift for other reasons. Airgas also asserts that the
medical reports after Cass’s leave of absence cleared him to
drive a forklift so that no accommodation was needed. Further,
Airgas argues that operating a forklift was an essential job
function so that it was not required to excuse him from that
obligation.
21 Cass responds that operating a forklift was not an
essential function of his job. He also contends that because
Airgas initially accommodated him by removing the forklift
operation requirement, it was aware that he needed
accommodation. Cass also disputes that he previously requested
to be excused from operating forklifts.
Under the circumstances, where Airgas provided coverage for
forklift operation after Cass’s sleep apnea became an issue, the
record shows that Airgas knew of a need for accommodation at
that time. In addition, the medical evidence shows that Cass
would not be cleared to operate a forklift, due to sleep apnea,
if he did not use the CPAP machine as recommended. Airgas
continued to require monitoring to determine whether Cass was
using his CPAP machine properly to avoid fatigue at work.
Based on the record presented, it is unclear whether
operating a forklift was an essential function of Cass’s job.
The job description that Airgas cites in support does not list
operating a forklift in the section under “Essential Job
Functions.” Instead, in the section titled “Physical Demands,”
the document states: “Must be able to safely drive a forklift.”
Doc. 10-6, at 184. Without further explanation, it is unclear
whether that was essential or not, particularly in light of
Cass’s testimony that he operated a forklift only as a
convenience.
22 Therefore, material factual disputes preclude summary
judgment on Counts III and IV.
C. Whistleblowers’ Protection Act, RSA Chapter 275-E, Count VII
Under the Whistleblowers’ Protection Act, “[n]o employer
shall harass, abuse, intimidate, discharge, threaten, or
otherwise discriminate against any employee regarding
compensation, terms, conditions, location, or privileges of
employment because (a) The employee, in good faith, reports
. . . what the employee has reasonable cause to believe is a
violation of any law or rule adopted under the laws of this
state.” RSA 275-E:2, I(a). Cass contends that Airgas required
the fit-for-duty evaluations and CPAP usage and monitoring to
punish him for reporting safety concerns about the contaminated
gas cylinder and the exposed electrical panel next to a bulk
oxygen tank. Airgas moves for summary judgment on the grounds
that Cass cannot prove constructive discharge or retaliatory
animus.
To prove a claim under RSA 275-E:2, I(a), a plaintiff must
show that he engaged in protected conduct, that he suffered an
action listed in the statute, and that there was a causal
connection between his protected conduct and the employer’s
action. Cluff-Landry v. Roman Catholic Bishop of Manchester,
169 N.H. 670, 674 (2017). The New Hampshire Supreme Court
23 relies on federal case law interpreting retaliation claims under
Title VII and employs the McDonnell-Douglas burden-shifting
analysis in deciding claims under RSA chapter 275-E. Appeal of
Seacoast Fire Equip. Co., 146 N.H. 605, 608 (2001). Under that
analysis, the plaintiff must make a prima facie case of unlawful
conduct, which shifts the burden to the employer to articulate a
legitimate reason for the challenged actions, and then the
plaintiff must rebut the reason given by showing that it is a
pretext. Id.
Although Cass lacks evidence of constructive discharge and
a hostile work environment, RSA 275-E:2, I(a) lists other
prohibited actions. Cass alleges that Airgas “harassed, abused,
intimidated, threatened, and otherwise discriminated” against
him because of his safety reports, apparently referring to the
fit-for-duty evaluations and CPAP machine requirements. Airgas
cites no authority to show that the harm alleged must rise to
the level of constructive discharge or a hostile work
environment.
Airgas also contends that Cass cannot show that its reasons
for requiring evaluations and CPAP machine usage and monitoring
were pretexts for retaliation against Cass for his reports. In
support, Airgas asserts that the decision makers, Wachel, Leith,
and Kachur, did not know about his safety violation reports.
While Wachel and Leith stated in their affidavits that they were
24 unaware of Cass’s safety violation reports, Kachur did not
provide an affidavit. Airgas did not submit other evidence that
Kachur did not know of Cass’s reports. Cass stated in his
affidavit that he raised the safety issue about the electrical
panel and the bulk oxygen tank at a plant safety meeting, which
may have included Kachur. Because Leith was the plant safety
program manager, a reasonable inference in Cass’s favor could
raise a dispute about whether he heard Cass’s complaint at a
Therefore, Airgas has not shown that it is entitled to
summary judgment on Cass’s Whistleblowers’ Protection Act claim,
Count VII.
Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 10) is granted in part and denied
in part. Summary judgment is granted in favor of the defendant
on Counts I, II, V, VI, and VIII. The claims remaining are
Counts III, IV, and VII.
Now that the claims in the case have been narrowed, the
parties would be well-advised to engage in good faith
discussions or mediation to determine whether the case might be
resolved before the parties and the court expend the time and
25 resources necessary for a trial. The court will require
mediation before trial.
SO ORDERED
__________________________ Joseph A. DiClerico, Jr. United States District Judge
August 2, 2018
cc: Francis J. Bingham, Esq. Leslie H. Johnson, Esq. Christopher B. Kaczmarek, Esq.