Leah Wallace, Plaintiff v. New Hampshire Ball Bearings, Inc., Defendant

2022 DNH 012

• Court: District Court, D. New Hampshire
• Decided: January 31, 2022
• Docket: 19-cv-1049-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Leah Wallace, Plaintiff Case No. 19-cv-1049-SM v. Opinion No. 2022 DNH 012

New Hampshire Ball Bearings, Inc., Defendant

O R D E R

Leah Wallace filed this suit against New Hampshire Ball

Bearings, Inc., her former employer, asserting violations of the

Americans with Disabilities Act (“ADA”) and the New Hampshire

Law Against Discrimination, N.H. Rev. Stat. Ann. 354-A, and a

common law wrongful termination claim. Defendant has moved for

summary judgment. Wallace objects.

Standard of Review

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party's favor.” Block Island Fishing, Inc. v. Rogers,

844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “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). In this

context, a factual dispute “is ‘genuine’ if the evidence of

1 record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).

Consequently, “[a]s to issues on which the party opposing

summary judgment would bear the burden of proof at trial, that

party may not simply rely on the absence of evidence but,

rather, must point to definite and competent evidence showing

the existence of a genuine issue of material fact.” Perez v.

Lorraine Enters., 769 F.3d 23, 29–30 (1st Cir. 2014). In other

words, “a laundry list of possibilities and hypotheticals” and

“[s]peculation about mere possibilities, without more, is not

enough to stave off summary judgment.” Tobin v. Fed. Express

Corp., 775 F.3d 448, 451–52 (1st Cir. 2014). See generally

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

Factual Background

The material facts, viewed in the light most favorable to

Wallace, are as follows. Leah Wallace suffers from a severe

latex allergy. She reacts to latex when she is “around it,

handle[s] it, [or is] touched by it.” Def.’s Exh. 2, Wallace

Dep. 50:17. Exposure to latex causes her to develop a variety

of symptoms, including: difficulty swallowing, hives, fever,

swelling, difficulty breathing (or a complete inability to

breath), and, potentially, anaphylaxis. As a result of her

2 allergy, Wallace has sought emergency care, and has been

injected with an EpiPen, which is used to treat life-threatening

allergic reactions (anaphylaxis).

Wallace typically manages her allergy by carrying Benadryl,

an antihistamine medication, and an EpiPen with her at all

times. She also “avoid[s] direct contact with latex,” and keeps

“latex out of [her] immediate proximity.” Pl.’s Exh. 1 at ¶ 5.

Her past employers have accommodated her allergy by allowing her

to wear non-latex gloves (when gloves were required), or by

allowing another employee to perform tasks that involved latex

materials. For example, when Wallace worked at a supermarket,

another employee would restock grocery shelves that contained

latex products. And, when Wallace worked at a cleaning company,

her employer switched all employees from latex gloves to non-

latex gloves after learning of Wallace’s allergy.

On October 21, 2018, Wallace submitted an application for

employment at New Hampshire Ball Bearings, Inc. As part of her

application, Wallace included a “Voluntary Self-Identification

of Disability” form, but did not note that she had a disability.

That is because, Wallace says, she did not consider herself

“disabled:” she had “always done whatever is necessary to

accommodate [herself] and live as normal a life as possible.”

Pl.’s Exh. 1 at ¶ 6. After filing the application, Wallace was

3 contacted by Jennifer Dunleavy, who worked in NHBB’s Human

Resources department, to schedule an interview.

On November 10, 2018, Wallace was interviewed by three NHBB

employees at its Laconia facility: Dunleavy; Phil Nichols,

Senior Manufacturing Supervisor at the Laconia facility; and

Kathy Moulton, Teflon Lead. At the time, NHBB was hiring for

three positions: Teflon assembler, machinist, and grinder.

During her interview, Nichols gave Wallace a tour of the

facility. Wallace informed Dunleavy and Nichols of her latex

allergy. They responded that her allergy would not be a

problem, and that NHBB could accommodate Wallace by allowing her

to use non-latex gloves, and to carry her EpiPen on the factory

floor. Following the interview, Moulton and Nichols both

recommended that she be hired.

Wallace was offered a position as a Teflon assembler, first

shift, entry level, at the NHBB Astro Division at $14.60 an

hour. After a 90-day probationary period, Wallace would be

eligible for benefits, including health insurance, dental

insurance, life insurance, short-term disability, vacation pay,

and holiday pay. Wallace accepted the position, although she

later conceded she was disappointed that she was not offered a

4 position as a machinist. 1 See Def.’s Exh. 2, Wallace Dep.

178:18-20.

On December 10, 2018, Wallace, along with approximately 12

other new NHBB employees, began NHBB’s 13-day orientation

course. Wallace participated in the first day of orientation,

including a tour of the manufacturing facility. 2 During the

tour, she observed that several of the Teflon assemblers were

wearing latex gloves in close proximity to each other.

Orientation continued on December 11, 2018. After the

morning training session, Dunleavy was assisting new employees

with completing on-boarding paperwork when she was approached by

Wallace. Referencing her latex allergy, Wallace asked Dunleavy

if she could be hired for the machinist position instead of the

Teflon assembler position. As Wallace later explained:

1 NHBB’s machinist position commanded a higher pay grade, and required additional training and experience. See Def.’s Exh. 5, Dunleavy Dep. 45:15-19 (“typically, [machinist] positions . . . are labor grade six, and she was hired for a labor grade four, so that was a couple of labor grades higher than the one she was hired for.”). 2 Wallace also received a copy of the NHBB employee handbook, which requests that new employees notify human resources if accommodation is required to perform the essential functions of the position due to disability. The handbook further notes that employees may be required to provide medical documentation regarding the disability, and regarding accommodations that may be effective. See Def.’s Exh. 2, Wallace Dep. 75:20-76:20.

5 Q: [W]hy were you asking to change from Teflon to machinist?

Wallace: Just, like, the close proximity for, like, my allergy. There was only, like, three people in that machinist area and Teflon had like 20 people.

Q: . . . When you say people, just being close proximity to people was your concern?

Wallace: Just being [in] close proximity to people working with latex gloves.

Def.’s Exh. 2, Wallace Dep. 80:7-15. Wallace reasoned that,

because there were fewer machinists than Teflon assemblers, if

she worked as a machinist, fewer employees would need to switch

to non-latex gloves to accommodate her allergy. 3 Dunleavy agreed

to speak with NHBB’s Human Resources Manager, Nicole Parker,

about Wallace’s request, and, as promised, spoke with Parker

later that day.

The next morning, Parker pulled Wallace out of orientation

to discuss the request. During that conversation, Wallace

explained that her latex allergy was quite severe. She told

Parker that she had once suffered “a significant reaction in [a]

. . . restaurant when another patron was sitting less than a

foot from [her] at the bar counter while wearing latex Croc

3 Wallace says that, when she spoke with Dunleavy, she was unaware that the machinist position was a higher pay grade than the Teflon assembler position, and required additional experience. Def.’s Exh. 2, Wallace Dep. 82:12-21.

6 shoes.” Pl’s Exh. 1, ¶ 16. Wallace told Parker that she was

requesting a transfer to the machinist position because she had

seen “many employees working in Teflon in close proximity to

each other wearing latex gloves,” and she needed to “keep latex

out of . . . close proximity.” Id. at ¶ 17.

Parker was (understandably) concerned. See Def.’s Exh. 4,

Parker Dep. 32:15-20 (“Her story about being around Crocs at a

restaurant . . . was very disconcerting to us, not really

understanding what that meant in a facility that has 500

employees, latex sneakers or shoes or whatever could be around

her.”). Wallace and Parker discussed prior accommodations made

by Wallace’s former employers. According to Wallace, she told

Parker that she was able to capably manage her latex allergy by

keeping latex “out of . . . close proximity and carrying

Benadryl and an EpiPen at all times.” Pl’s Exh. 1, ¶ 18. But,

based on the potential airborne nature of Wallace’s allergy,

Parker was worried that those precautions would not be

sufficient to protect Wallace, and wanted to better understand

what Wallace meant by “close” proximity to latex. See Def.’s

Exh. 4, Parker Dep.. 35:19-36:1 (“Space, you know, how close can

she be [to latex] . . . . She said she could smell it. Does

that mean she can't be around it at all? We needed more

information on the scope of what her allergy was and how and

what accommodation her physician felt she would need to work

7 here.”). As Parker explained, “I was not comfortable. My job is

to provide a safe work environment for all employees, and not

understanding what an airborne allergy could do to somebody was

very unnerving.” Def.’s Exh. 4, Parker Dep. 53:17-20.

Parker reached out to NHBB’s Plant Services Manager,

Herbert Parkhurst, 4 to discuss sources of latex exposure in the

NHBB facility, including building materials, manufacturing

supplies, and coworkers’ clothing (since Wallace told Parker

about her reaction to Crocs at the restaurant bar). Parker also

emailed Patti Carrier, who served as NHBB’s environmental

manager in its Peterborough HiTech Division, and was assisting

with the Laconia facility’s safety program, for advice. See

Pl.’s Exh. 11. Carrier responded that, because Wallace said

that her latex allergy was airborne, Carrier “wasn’t positive

[NHBB] could keep her away from a potential exposure.” Id. She

mentioned that Peterborough had eliminated latex gloves from its

facility, and suggested that the Laconia facility might do the

same. Both Parker and Carrier agreed that, before taking

action, NHBB needed additional information from Wallace’s

physician concerning her allergy.

4 Parkhurst had spoken with Wallace earlier during orientation when she asked for permission to carry her EpiPen while working on the factory floor. Parkhurst assured her that it would not be a problem.

8 Parker then met with Wallace again, and asked her to

provide a note from her physician describing her allergy and its

“parameters,” so NHBB could determine whether or how she could

be accommodated. Def.’s Exh. 4, Parker Dep. 54:4-6. Parker

then sent Wallace home for the day. Wallace immediately

contacted her physician’s office, and asked them to fax NHBB a

note concerning her latex allergy. Her physician’s office

promptly did so, faxing NHBB a letter that stated Wallace: “has

a severe latex allergy which can result in anaphylaxis. This is

a serious reaction which would require immediate medical

intervention.” Pl.’s Exh. 12.

Parker called Wallace after receiving the doctor’s note.

Parker explained to Wallace that the medical note was

insufficient because it lacked detail, and did not adequately

explain what accommodations would be sufficient so that Wallace

could safely perform her job at NHBB. 5 Def.’s Exh. 2, Wallace

Dep. 105:11-14, 109:13-14. Wallace promptly reached out again

to her physician, requesting a more detailed letter. However,

5 In her affidavit, Wallace states that Parker did not tell her what specific details NHBB required. See Pl.’s Exh. 1 at ¶ 21. But, her deposition testimony is to the contrary, as she testified that, during her December 12, 2018, phone call with Parker, Parker told her that NHBB required a note stating “how many feet” Wallace could be “within latex.” Def.’s Exh. 2, Wallace Dep. 105:11-14; 109:13-14.

9 her physician’s office told her that they were unable to provide

a more detailed letter.

Wallace returned to orientation the next day, December 13,

2018, but was again pulled out of orientation to discuss her

latex allergy with Parkhurst and Parker. As Parkhurst later

summarized:

we talked about gloves, and I remember telling her that, you know, if, you know, your sensitivity is just, you know, latex gloves, that's very easy to just wear nitrile. They're all over the place. And then she brought up that she had had a reaction to someone's shoes at a restaurant, and for me that totally changed how we needed to view her, her issue because if she's - - if she has an airborne issue, you know, whether it's inhalation or aspiration, that's an entirely different animal to deal with than a glove that's on your hand with a skin contact, you know, because then you're talking about dosage and duration, and I needed to know a lot more specifics about how to protect her from that type of hazard.

Pl.’s Exh. 10, Parkhurst Dep. 24:19-25:11. Parkhurt suggested

that the entire facility could be converted to non-latex gloves,

but noted that while “it could physically be done,” he was

“concerned that if [Wallace] has a reaction to someone's shoes,

just changing out gloves isn't going to help.” Id. at 26:1-5.

Wallace told Parker and Parkhurst that her allergy could be

accommodated if she avoided latex, and by carrying her EpiPen

and Benadryl. But, both Parker and Parkhurst felt that

additional medical information was necessary so that they could

10 best determine how to safely accommodate Wallace’s allergy. See

Def.’s Exh. 4, Parker Dep. 40:1-10 (“[Wallace] said that she had

a latex allergy. She accepted the fact that Phil told her she

could wear nonlatex gloves, so we did initially accommodate her

based on her information. She then changed it to ‘I [have an]

airborne allergy,’ which is very different than contact,

something we've never dealt with before, so we asked for further

medical information so that we could better understand what

accommodation she needed.”). Wallace was sent home again with

instructions that she should not return to work until she could

provide NHBB with more detailed medical information concerning

her allergy. 6 See Pl.’s Exh. 2, Wallace Dep. 112:6-9.

Wallace reached out again to her physician’s office. Her

doctor suggested that she visit an allergist, who might be able

to provide NHBB with the requested information. Wallace called

to schedule an appointment with an allergist, but was informed

it might be several months before she was able to see the

doctor. Wallace then called Parker and left her a voice

message. She stated that she would not be able to visit the

6 Wallace’s testimony is again inconsistent on that point. In her affidavit, Wallace states that Parker failed to specify what details were needed. See Pl.’s Exh. 1 at ¶ 23. But, at deposition, Wallace testified that Parker and Parkhurst told her “they wanted a more detailed doctor’s note of how many feet [she] could be within [latex],” and that she could not return until she had obtained that note. Def.’s Exh. 2, Wallace Dep. 112:6-9.

11 allergist for “some[]time,” and so could not immediately provide

NHBB with the medical information requested. Pl.’s Exh. 14.

Wallace stated that she was ready and willing to work at NHBB in

the meantime.

Accordingly, Wallace returned to orientation on December

17, 2018, hoping to work. Parker met her in the lobby. Wallace

again explained that she would not be able to get the medical

information NHBB required until her appointment with the

allergist, which, she stated again, might take some time.

Because Wallace had not provided the information that NHBB had

requested, Parker terminated Wallace’s employment. She told

Wallace that if she could obtain a more detailed medical note,

she should contact NHBB, and “we’ll talk about a rehire.”

Def.’s Exh. 4, Parker Dep. 61:16-18; Def.’s Exh. 2, Wallace Dep.

122:7-9.

On January 18, 2019, Wallace visited the allergist. The

doctor told her to carry Benadryl and an EpiPen with her at all

times, and to keep latex products more than an arm’s length away

from her. The allergist provided Wallace with a note stating:

“Leah A Wallace is a 21 [year old] y.o. patient of mine with a

12 history of latex allergy. I recommend avoiding latex in the

workplace.” 7 Pl.’s Exh. 15.

Wallace filed a Charge of Discrimination with the New

Hampshire Commission for Human Rights. In March, 2019,

defendant sent Wallace a letter offering reinstatement as a

Teflon assembler based on the information set forth in Wallace’s

Charge that described her allergist’s recommendation. Wallace

did not accept NHBB’s offer.

Discussion

Wallace contends that NHBB violated the Americans with

Disabilities Act, and the New Hampshire Law Against

Discrimination, N.H. Rev. Stat. Ann. 354-A, by (1) failing to

accommodate her disability; (2) terminating her due to her

disability; and (3) retaliating against her for requesting an

accommodation. Similarly, in support of her wrongful

termination claim, Wallace alleges that NHBB terminated her

employment in “bad faith, malice, and/or retaliation.” Compl. ¶

40. As mentioned, defendant moves for judgment on all of

Wallace’s claims.

7 In a January 18, 2019, letter to Wallace, Wallace’s allergist wrote that she recommended “strict avoidance of latex.” Def.’s Exh. A.

13 Count 1: Disability Discrimination

With regard to Wallace’s claims alleging disability

discrimination, our Court of Appeals has stated:

The ADA provides ‘a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008) (quoting Katz v. City Metal Co., 87 F.3d 26, 30 (1st Cir. 1996)). Indeed, “[t]he ADA was enacted for ‘the elimination or reduction of physical and social structures that impede people with some present, past, or perceived impairments from contributing, according to their talents, to our Nation's social, economic and civil life....’” Ramos- Echevarría v. Pichis, Inc., 659 F.3d 182, 186 (1st Cir. 2011) (quoting Tennessee v. Lane, 541 U.S. 509, 536 (2004) (Ginsburg, J., concurring)).

Ortiz-Martinez v. Fresenius Health Partners, PR, LLC, 853 F.3d

599, 604 (1st Cir. 2017). “To establish a claim under the ADA,

a plaintiff must prove three factors by a preponderance of the

evidence: (1) she was disabled within the meaning of the ADA;

(2) she was qualified to perform the essential functions of the

job, either with or without reasonable accommodation; and (3)

the employer took an adverse employment action against her

because of the alleged disability.” Colon-Fontanez v.

Municipality of San Juan, 660 F.3d 17, 32 (1st Cir. 2011)

(citations omitted). 8

8 “As . . . this court and the New Hampshire Supreme Court have recognized, claims under Section 354-A are construed in conformity with the ADA.” Gage v. Rymes Heating Oils, Inc., No. 14-CV-480-PB, 2016 WL 843262, at *5 (D.N.H. Mar. 1, 2016) (Barbadoro, J.) (citing Montemerlo v. Goffstown Sch. Dist., SAU No. 19, No. 12-CV-13-PB, 2013 WL 5504141, at *5 (D.N.H. Oct. 4, 2013) (collecting cases). Wallace’s arguments concerning her

14 1. Wallace is an Individual with a “Disability.”

Defendant first argues that Wallace has not sufficiently

established that she suffers from a disability within the

meaning of the ADA. The Act defines “disabled” as: “(A) a

physical or mental impairment that substantially limits one or

more major life activities of such individual; (B) a record of

such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(1). “[M]ajor life activities

include, but are not limited to, caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking,

standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and working.”

42 U.S.C. § 12102(2)(A). “There is no per se rule about either

the type or quantum of evidence that a plaintiff seeking to

establish a disability must supply.” Mancini v. City of

Providence by & through Lombardi, 909 F.3d 32, 39 (1st Cir.

2018) (citation omitted).

Defendant asserts that Wallace has not demonstrated that

her latex allergy substantially limits major life activities.

It argues that Wallace herself did not perceive her allergy as a

“Section 354-A claim rise and fall on the same bases as [her] ADA arguments,” and so the court’s analysis applies equally to Wallace’s Section 354-A claim. Id.

15 disability, as she marked that she was not disabled on her

employment application. And, defendant says, Wallace has stated

that her latex allergy can be easily addressed simply by

avoiding contact with latex, and that she has held numerous

other jobs that required minimal accommodation. So, defendant

says, her allergy was not severe enough to limit a major life

activity.

Wallace responds that her latex allergy limits life

activities of breathing, swallowing, and body temperature

regulation. She points out that, in 2008, the ADA was amended

to modify the Act’s definition of “disability,” see 42 U.S.C. §

12102, and, under the amended ADA, “[t]he definition of

disability ... shall be construed in favor of broad coverage of

individuals ... to the maximum extent permitted by the

[Amendments].” 42 U.S.C. § 12102(4)(A).

The ADAAA provides that “[a]n impairment that is episodic

or in remission is a disability if it would substantially limit

a major life activity when active.” 42 U.S.C. § 12102(4)(D).

“The determination of whether an impairment substantially limits

a plaintiff’s major life activities shall be made without regard

to the ameliorative effects of mitigating measures such as”

learned behavioral modifications. Id. at § 12102(4)(E).

16 Wallace’s primary care physician wrote that her latex

allergy is severe, and “can result in anaphylaxis. This is a

serious reaction which would require immediate medical

intervention.” Pl.’s Exh. 12. Thus, when triggered, Wallace’s

allergy limits certain life activities, including her ability to

breath. “Unobstructed breathing clearly qualifies as a major

life activity.” Lima v. Middlesex Sheriff’s Office, et al., No.

CV 19-11372-RGS, 2020 WL 823088, at *5 (D. Mass. Feb. 19, 2020)

(citing Ramos-Echevarria, 659 F.3d at 187 (quoting 29 C.F.R. §

1630.2(i)).

Defendant relies heavily on Jimenez-Jimenez v. Int'l Hosp.

Grp., Inc./Casino del Sol, No. 15-1461 (SCC) 2017 WL 5905529

(D.P.R. Nov. 30, 2017), a case in which the plaintiff suffered

from an allergic condition triggered by some perfumes and

chemicals. The Jimenez-Jimenez plaintiff’s “reactions were not

necessarily immediate,” but varied based on the scent and

strength, and, by moving away from the smell, plaintiff was able

to remedy the situation. Id. at *4. Critically, unlike

Wallace, plaintiff’s allergy only manifested when exposed to an

allergen at work. See id. at *9 (“we have found no evidence

that Jiménez' condition was triggered outside of his place of

employment. Therefore, the plaintiff has not made a sufficient

showing that his condition rendered him disabled within the

17 meaning of the ADA.”). For that reason, defendant’s reliance is

misplaced.

Keeping in mind that “the primary purpose of the ADAAA is

to make it easier for people with disabilities to obtain

protection under the ADA,” 29 C.F.R. § 1630.1(c)(4), and taking

the summary judgment record in the light most favorable to

Wallace, as the court must, an informed juror could conclude

that Wallace suffers from a disabling condition under the ADA.

The court will, then, assume that plaintiff qualifies as

“disabled” for summary judgment purposes.

2. NHBB Attempted to Accommodate Wallace’s Disability.

Wallace alleges that NHBB failed to provide her with

reasonable accommodation under the ADA and N.H. Rev. Stat. Ann.

354-A. “Under the ADA an employer is required to make

‘reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a

disability who is an applicant or employee, unless [the

employer] can demonstrate that the accommodation would impose an

undue hardship on [its] operation of the business.’” Ortiz-

Martinez, 853 F.3d at 604 (quoting 42 U.S.C. § 12112(b)(5)(A))

(further citations omitted). “[P]laintiff bears the burden of

proposing an accommodation that would enable him to perform his

18 job effectively and is, at least on the face of things,

reasonable.” Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001).

Defendant argues that Wallace has failed to produce

evidence upon which an informed jury could conclude that NHBB

unlawfully denied Wallace an accommodation. The court agrees.

The evidence of record demonstrates that Wallace first

asked NHBB to accommodate her latex allergy by allowing her to

carry an EpiPen and Benadryl, and to wear non-latex gloves.

NHBB readily agreed to those reasonable requests, on multiple

occasions. But, after she observed the Teflon assemblers

working in close proximity to each other, wearing latex gloves,

Wallace was concerned that her earlier requested accommodation

would not sufficiently protect her. So, she asked NHBB for an

additional accommodation in the form of a job change (from

Teflon assembler to machinist), a job for which she had not been

hired, and for which she was neither trained nor had the

requisite experience. In support of that accommodation request,

Wallace informed the company that she could not be in “close

proximity” to latex (but she did not describe what she meant by

“close proximity,” and described a past allergic reaction

triggered by latex in a restaurant patron’s shoes). Based on

Wallace’s statements, NHBB reasonably understood that the

accommodations she previously requested and to which NHBB had

19 agreed (carrying an EpiPen and Benadryl, and wearing non-latex

gloves) would not be sufficient to allow her to work effectively

as a Teflon assembler.

Notably, the company did not reject Wallace’s request to

change jobs. Instead, NHBB requested additional information so

that it could assess the feasibility of her request, and how the

company might best accommodate her disability. See Pl.’s Exh.

10, Parkhurst Dep. 25:4-11 (“ [I]f she has an airborne issue,

you know, whether it's inhalation or aspiration, that's an

entirely different animal to deal with than a glove that's on

your hand with a skin contact, you know, because then you're

talking about dosage and duration, and I needed to know a lot

more specifics about how to protect her from that type of

hazard.”). As defendant states: “NHBB needed to know how close

Wallace could safely be in proximity to latex to appropriately

evaluate the adequacy and reasonableness of an accommodation.”

Def.’s Mot. for Summary Judgment at 14. NHBB of course had no

interest in transferring Wallace to a machinist position if it

would not reasonably and adequately address the extent to which

her latex exposure needed to be limited or eliminated. And,

Wallace’s statements that she needed to keep latex out of her

“close proximity” gave NHBB little specificity regarding how far

Wallace needed to stay away from latex to avoid triggering an

allergic reaction.

20 Parker explained her thinking at the time:

Q: And did you, ultimately, speak with Herb Parkhurst about what possibly you could do to accommodate Leah Wallace?

A. I didn't talk to him about accommodating. I talked about better understanding what the -- what he thought about an airborne allergen for latex and what that meant. You know, is there latex in 500 employees' sneakers? Is there latex in their hair bands? Do we use latex paint on the walls? I needed to better understand from our facility what we use for latex.

. . .

Q. Okay. And what do you recall Herb telling you?

A. Herb didn't have an understanding either of the impact of, you know, these Crocs that she had an allergic reaction to. You know, are they latex? Does that mean that -- you know, again, we have 500 employees walking around. Is there latex in their shoes? He knows from the facilities that there's latex in the paint on the walls in some areas, . . . neither one of us had a good understanding of what an airborne latex allergy meant. And, again, that is why we really needed Leah to get that clarification and recommendations from her physician.

Def.’s Exh. 4, Parker Dep. 54:7-55:12.

E.E.O.C. Enforcement Guidance provides that an employer is

entitled to seek limited records sufficient to substantiate the

claimed disability and accommodation if the employee has

presented insufficient supporting documentation. See Turcotte

v. Comcast Cable Commc'ns Mgmt., LLC, No. 17-CV-150-PB, 2019 WL

635409, at *12–13 (D.N.H. Feb. 14, 2019) (citing E.E.O.C.

21 Enforcement Guidance: Disability-Related Inquiries and Medical

Examinations of Employees under the Americans with Disabilities

Act (2000), 2000 WL 33407181 at *9). See also Badri v. Huron

Hosp., 691 F.Supp.2d 744, 763 (N.D. Ohio 2010) (“An employer is

not required to speculate as to the extent of an employee's

disability or the employee's need or desire for an

accommodation. Defendants had the right to substantiate their

concerns before they considered accommodations.”) (citations

omitted). NHBB’s request for additional medical information

regarding airborne triggering of latex allergies to determine an

appropriate accommodation for Wallace was reasonable, especially

given the company’s lack of knowledge or expertise, generally,

and with respect to Wallace’s latex allergy, specifically, as

well as the ambiguity of the information that Wallace had

provided, including her report of a prior latex reaction

triggered by a restaurant patron’s footwear.

Again, the burden was on Wallace to establish that the

accommodation she was requesting (a different job) was both

reasonable, 9 and could be performed effectively with particular

9 While the ADA provides that reasonable accommodation may include “reassignment to a vacant position,” 42 U.S.C. § 12111(9)(B), “an employee must demonstrate that a vacant position existed and that she was qualified for it.” Turcotte, 2019 WL 635409, at *6.

The record evidence does not show that Wallace made any effort to establish she was qualified for the machinist position

22 and reasonable accommodation. See Kvorjak, 259 F.3d at 55.

While NHBB agreed to accommodate Wallace’s initial requests, her

request evolved substantially (an entirely new job), and, as

noted, the information she had provided to NHBB in support of

her request disclosed a disability of greater sensitivity then

initially suggested, and one that might very well have not been

easily accommodated by changing to non-latex gloves. As

defendant argues, “a transfer to the machinist position did not

address the underlying issue, the extent to which latex exposure

had to be limited or eliminated, . . . which necessitated

further medical documentation.” Def.’s Mot. in Support of

Summary Judgment at 14.

“[A]n employee cannot demand an accommodation and then fail

or refuse to provide the employer with information critical to

determining whether the accommodation is necessary and

reasonable.” Willinghan v. Town of Stonington, 847 F. Supp. 2d

164, 189 (D. Me. 2012). See also Templeton v. Neodata Servs.,

Inc., 162 F.3d 617, 619 (10th Cir. 1998) (“An employer cannot be

expected to propose reasonable accommodation absent critical

as an accommodation. And, Wallace’s briefing gives little attention to the fact that she requested a transfer to the machinist position; she characterizes that request as one for a “position other than Teflon,” pl.’s obj. to motion for summary judgment at 5, but offers no evidence that she had the training, skills, or experience to satisfy the machinist job’s requirements, or that she had some other job in mind.

23 information on the employee's medical condition and the

limitations it imposes.”). Wallace does not dispute that she

did not provide NHBB with the medical information the company

needed to assess her request. She did not even provide NHBB

with a date certain on which she would provide the information.

Given these facts, Wallace’s contention that NHBB failed to

engage in the interactive process is puzzling.

It is well-settled that an employee’s accommodation request

may “create[] a duty on the part of the employer to engage in an

interactive process.” E.E.O.C. v. Kohl's Dep't Stores, Inc.,

774 F.3d 127, 132 (1st Cir. 2014) (quotation omitted). That

process “involves an informal dialogue between the employee and

the employer in which the two parties discuss the issues

affecting the employee and potential reasonable accommodations

that might address those issues.” Id. (citing 29 C.F.R. §

1630.2(o)(3)). As our court of appeals has instructed:

[I]t is imperative that both the employer and the employee have a duty to engage in good faith, and that empty gestures on the part of the employer will not satisfy the good faith standard. If an employer engages in an interactive process with the employee, in good faith, for the purpose of discussing alternative reasonable accommodations, but the employee fails to cooperate in the process, then the employer cannot be held liable under the ADA for a failure to provide reasonable accommodations.

Id. at 132 (citations omitted). See also Turcotte, 2019 WL

635409, at *12 (“An employee who refuses to comply with an

24 employer’s reasonable request for medical information pertaining

to her disability can be found to have obstructed the process.”)

(citing Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1136

(7th Cir. 1996) (affirming summary judgment for employer where

employee refused to sign medical records release form that

employer requested due to insufficient information about her

work restrictions); and Templeton, 162 F.3d at 618-19 (affirming

summary judgment for employer because employee refused to

authorize her physician to release medical information that

employer reasonably requested)). The evidence here compels the

conclusion that it was Wallace who raised the specter of a

highly sensitive and dangerous allergic risk caused by latex “in

close proximity,” even illustrating her vulnerability by

suggesting an airborne risk, but who failed to provide any

reliable medical information regarding the nature and extent of

her particular allergy, or the extent to which an employer

should insulate her from exposure to latex in the workplace.

Wallace also references a variety of accommodations that

NHBB purportedly failed to offer her, including transitioning

the entire facility to non-latex gloves. She argues that,

although Wallace asked to transfer to the machinist position,

“NHBB could have simply offered to have the other Teflon

employees switch to nitrile gloves, could have transitioned to a

complete latex ban like [NHBB’s] HiTech [facility] in

25 Peterborough, or could have developed another accommodation all

together.” Pl.’s Opp. to Motion for Summary Judgment at 20.

But, Wallace did not request any of those accommodations. And,

all of those proposals would not address latex in a co-worker’s

footwear, or clothing, or a myriad of other products. NHBB was

entitled to request substantiating medical information from

which it could assess the scope of Wallace’s allergy, and what

accommodations could be reasonably fashioned to effectively

provide her with a safe workplace.

Finally, Wallace argues that NHBB’s subsequent offer to

rehire her supports her contention that defendant failed to

accommodate her disability. She says that, because NHBB offered

to rehire her, “NHBB could have accommodated Ms. Wallace all

along,” since Wallace “simply needed to keep latex out of her

immediate proximity, carry an EpiPen, and carry Benadryl.”

Pl.’s Obj. to Mot. for Summary Judgment at 11-12. But, NHBB

agreed to those accommodation requests while Wallace was

employed by NHBB. It was only after Wallace disclosed that

those agreed-upon accommodations might be insufficient (since

she could not have latex in her “close proximity”) that NHBB

asked her to provide medical information in support of her

request.

26 Wallace has not pointed to admissible evidence sufficient

to support a reasonable jury’s conclusion that NHBB denied her

reasonable accommodations under the ADA or N.H. R.S.A. 354-A.

3. Wallace Was Not Terminated Due to her Disability.

Wallace similarly fails to point to record evidence

sufficient to support a juror’s conclusion that she was

terminated by NHBB as a result of her disability. Wallace says

that it cannot be “genuinely disputed that NHBB would not have

terminated Ms. Wallace on December 17, 2018, but for her

disability disclosure and request for accommodation.” Pl.’s

Obj. to Mot. for Summary Judgment at 22.

To the contrary, Wallace has not established that she is a

“qualified individual” within the meaning of the ADA. She was

hired by NHBB as a Teflon assembler. She promptly informed NHBB

that, in order to perform the job, she’d need to carry an

EpiPen, and wear non-latex gloves. NHBB readily agreed.

Wallace then informed NHBB that those agreed-upon accommodations

would not be sufficient to allow her to safely perform that job;

that she needed to keep latex out of her “close proximity,” and

could not do that as a Teflon assembler, so needed to work as a

machinist. NHBB cannot be faulted for believing Wallace when

she said she could not safely perform the job of Teflon

assembler due to the close proximity of co-workers wearing latex

27 gloves (and perhaps footwear). Nor can NHBB be faulted for

requesting more specific medical information in support of

Wallace’s request, as set forth supra. Because Wallace told

NHBB she could not safely perform the job for which she was

hired, and because she did not provide medical information

sufficient for NHBB to assess her request for accommodation,

NHBB terminated her employment.

The overriding problem with Wallace’s argument is that she

suggested to NHBB that she could not perform the essential

functions of her job (Teflon assembler) because of her latex

allergy, and needed to switch to a machinist position. In other

words, Wallace complains that she was terminated from a job that

she told the company she could not safely perform because of her

latex allergy. When NHBB endeavored to determine how to

accommodate her so that she could perform the essential

functions of that job, or another, she was unable to provide

NHBB with the information requested. Given that factual record,

a reasonable jury could not supportably find that Wallace

sufficiently established that she was qualified for the Teflon

assembler position, with or without a reasonable accommodation.

And, she made no such showing with respect to any other

available positions. See Crowe v. Appalachian Stitching Co.,

LLC, No. 2021-0129, 2021 WL 6069200, at *3 (N.H. Dec. 23, 2021)

(plaintiff “was not a ‘qualified individual’ while she remained

28 unable to work”) (citing Peyton v. Fred's Stores of Arkansas,

Inc., 561 F.3d 900, 903 (8th Cir. 2009) (“it is axiomatic that a

person who cannot perform any of the functions of a job, with or

without reasonable accommodation, cannot, as a matter of law, be

considered ‘otherwise qualified’ under the ADA.”)).

Even assuming, arguendo, that Wallace has sufficiently

established a prima facie case, to avoid summary judgment,

Wallace must also “show by a preponderance of the evidence that

[NHBB's] proffered reason” to discharge was “pretextual and that

the actual reason for the adverse employment action [was]

discriminatory.” Johnson v. Univ. of P.R., 714 F.3d 48, 54 (1st

Cir. 2013) (further citation omitted).

Wallace fails to point to admissible evidence tending to

show that NHBB’s proffered reason for terminating her employment

(her failure to provide requested medical information) was

pretextual. She argues that pretext may be inferred from the

fact that NHBB allowed her only a short period of time to obtain

the requested information, and rejected the physician’s note

that she did submit. 10 NHBB could perhaps have been more

10 Wallace also argues that NHBB’s discrimination against her was intentional and reckless. She contends that Parker concluded that she was not disabled because she had not checked that box on NHBB’s Self-Identification of Disability form. That argument is unconvincing, as she points to no evidence that

29 generous in the time allowed Wallace to obtain the information

requested, especially once she informed NHBB that she needed to

schedule an appointment with an allergist. But, that NHBB’s

timeline may have been short does not mean that it was

discriminatory. See Acevedo-Parrilla v. Novartis Ex-Lax, Inc.,

696 F.3d 128, 140 (1st Cir. 2012) (“mere questions regarding the

employer's business judgment are insufficient to raise a triable

issue as to pretext”) (citations omitted). Testimony by Parker

and Parkhurst suggests that both were genuinely worried that

Wallace would not be safe at the NHBB facility. See, e.g.,

Def.’s Exh. 4; Parker Dep. 32:1-4 (“I didn’t feel like I could

provide her a safe work environment without understanding better

what it is that she needed.”); Pl.’s Exh. 10; Parkhurst Dep.

25:9-11 (“I needed to know a lot more specifics about how to

protect her from that type of hazard.”). And, Wallace’s

argument ignores that she did not provide NHBB with a date

certain by which she would likely be able to provide the

requested information (or even the date of her allergist

appointment). Finally, Wallace’s argument that NHBB should have

just allowed her to work (presumably as a Teflon assembler)

until she was able to obtain the requested information cannot be

squared with the factual record. As mentioned supra, it was

Wallace who informed NHBB that she was unable to work safely as

Parker relied on Wallace’s form in any way in making the decision to terminate her.

30 a Teflon assembler with the previously agreed upon

accommodations. The company cannot be faulted for taking her

statements seriously.

On this record, a reasonable jury could not plausibly infer

that discriminatory animus was a motivating factor in her

termination. Defendant is entitled to judgment on plaintiff’s

discrimination claim under the ADA and N.H. Rev. Stat. Ann.

Section 354-A.

Count II: Retaliation

Wallace further claims that her request for accommodation

constituted protected conduct, and, as a result of her request,

her employment was terminated. Therefore, she contends, NHBB

unlawfully retaliated against her in violation of the ADA and NH

RSA Section 354-A.

Pursuant to the ADA's retaliation provision, “[n]o person

shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this

chapter.” 42 U.S.C. § 12203(a). 11 “To establish a claim of

11 “The New Hampshire Supreme Court looks to and finds ‘instructive’ federal standards established under Title VII ... in resolving retaliation claims under N.H. Rev. Stat. Ann. § 354–A.” Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 856 (1st Cir. 2008) (quoting Madeja v. MPB Corp., 149 N.H. 371, 378–79 (2003)). Accordingly, the court relies on cases interpreting

31 retaliation, a plaintiff must show that (1) she engaged in

protected conduct, (2) she suffered an adverse employment

action, and (3) there was a causal connection between the

protected conduct and the adverse employment action.” Freadman

v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir.

2007) (citations omitted).

Wallace of course engaged in protected activity by seeking

accommodation for her disability. See Carreras v. Sajo, Garcia

& Partners, 596 F.3d 25, 35 (1st Cir. 2010). Her contention

that she would not have been terminated had she not requested an

accommodation, however, is not supported by the evidence of

record.

“Once a plaintiff makes out a prima facie case of

retaliation, the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its employment

decision.” Carreras, 596 F.3d at 36 (quotations and citations

omitted). “If the employer produces a legitimate reason for its

decision, the burden under McDonnell Douglas shifts back to the

plaintiff to show that the motive was discriminatory [or

retaliatory].” Id. (quotations and citations omitted). “Thus,

the ADA to assess Wallace’s retaliation claim under N.H. Rev. Stat. Ann. Section 354-A as well.

32 the plaintiff bears the ultimate burden to create a plausible

inference that the employer had a retaliatory motive.” Id.

(citing Benoit v. Technical Mfg. Corp., 331 F.3d 166, 174 (1st

Cir. 2003)).

Defendant has responded that Wallace was terminated because

she failed to provide necessary information for NHBB to

determine whether it could provide her with a safe working

environment. Thus, even assuming that Wallace has adequately

established a prima facie case of retaliation, she must also

establish that NHBB’s stated reason for terminating her

employment was pretextual. As set forth above, she fails to

muster evidence sufficient to do so. Instead, the evidence

reveals that Wallace was terminated because she informed NHBB

she could not safely perform the job for which she was hired,

and failed to provide the medical information NHBB requested in

order to assess what reasonable accommodation might be available

to allow her to safely perform the job she was hired to do.

Wallace also has not pointed to any evidence that suggests that

NHBB harbored any retaliatory animus based on her requests for

accommodation. Indeed, the evidence is to the contrary: NHBB

readily granted several of her initial accommodation requests

before asking for additional medical information after Wallace

informed the company that she could not have latex in her

vicinity.

33 Accordingly, no reasonable jury, on the record, could

conclude that Wallace was terminated because she requested an

accommodation. NHBB is entitled to summary judgment on

Wallace’s retaliation claim.

Count III: Wrongful Discharge

For similar reasons, NHBB is entitled to judgment on

Wallace’s wrongful discharge claim. A plaintiff claiming

wrongful termination under New Hampshire law must establish: (1)

her termination was motivated by bad faith, retaliation or

malice; and (2) she was terminated for performing an act that

public policy would encourage or for refusing to do something

that public policy would condemn. Lacasse v. Spaulding Youth

Ctr., 154 N.H. 246, 248 (2006). Wallace alleges that because

she was terminated six days after she took an action that public

policy would encourage (requesting accommodation for her

disability), a jury could find that she was wrongfully

terminated.

The factual record does not support Wallace’s position.

Temporal proximity between action and reaction, alone, is not

enough. The evidence shows that Wallace was terminated not

because she requested an accommodation (which was initially

readily granted), but because she did not provide the medical

34 information necessary for NHBB to access her evolving

accommodation request, and because she informed the company that

she could not safely perform the job for which she was hired.

Wallace also fails to point to evidence that might support a

finding that her termination was motivated by bad faith,

retaliation, or malice.

Accordingly, defendant is entitled to judgment on

plaintiff’s common law claim for wrongful termination.

Conclusion

For the foregoing reasons, as well as those set forth in

defendant’s memoranda, defendant’s motion for summary judgment

(docket no. 16) is granted. The Clerk of Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 31, 2022

cc: Counsel of Record