Lillibridge v. Wooden Soldier

• Court: District Court, D. New Hampshire
• Decided: February 4, 1997
• Docket: CV-95-288-SD
• Status: Published

Opinion

Lillibridge v . Wooden Soldier CV-95-288-SD 02/04/97 P

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Freda Lillibridge

v. Civil N o . 95-288-SD

Wooden Soldier, Ltd.

O R D E R

In this civil action, plaintiff Freda Lillibridge alleges that defendant Wooden Soldier, Ltd., terminated her employment as a telephone order taker in violation of Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101-12117 (1995). Plaintiff also alleges violations of New Hampshire common and statutory law.

Presently before the court is a motion for summary judgment1 filed by Wooden Soldier requesting entry of judgment in its favor on all counts of the complaint. Plaintiff objects.

1 The court will treat defendant's "Motion to Dismiss and for Summary Judgment" as simply a motion for summary judgment because defendant relies on matters outside the pleadings. See Rule 12(b), Fed. R. Civ. P. Background

Plaintiff Lillibridge began working for Wooden Soldier on or

about September 2 1 , 1993, handwriting telephone orders for the

company's mail order catalog. Freda Lillibridge Affidavit ¶¶ 3 ,

4. On February 8 , 1994, Lillibridge reported wrist pain to her

supervisor. Id. ¶ 6.

On February 1 8 , Lillibridge attended a doctor's appointment

with D r . Gary L . Woods regarding the pain in her wrist. Id. ¶ 9.

At this appointment, D r . Woods' impression was that Lillibridge

did not have "carpal tunnel [syndrome]2 as such" but that her

pain was caused by "overuse". D r . Woods' Report re Feb. 1 8 ,

1994, appointment with Lillibridge (attached to defendant's

motion as Exhibit I I ( A - 2 ) ) . D r . Woods put Lillibridge's wrist in

a temporary short arm thumb spica cast. Id. Both D r . Woods and

Lillibridge believed that she would be able to write on a limited

basis and continue to do her work at Wooden Soldier. Id.3

Later in the day on February 1 8 , Lillibridge found that she

could not write with her wrist in the cast. Transcript (Tr.) of

Department of Labor Hearing at 7 (attached to defendant's motion

as Exhibit I ) . Lillibridge called Wooden Soldier that afternoon

2 Carpal tunnel syndrome is defined as "a complex of symptoms resulting from compression of the median nerve in the carpal tunnel [located in the wrist], with pain and burning or tingling paresthesias in the fingers and hand, sometimes extending to the elbow." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1626 (28th ed. 1994). 3 Lillibridge attended a follow-up appointment with D r . Woods on March 9, 1994. and told one of the owners, Yvonne Mennella, that her doctor put

her wrist in a cast and she could not write but that she could

still come to work and do filing or other tasks that were less

strenuous to her wrist. Id. at 7 , 4 5 .

Lillibridge testified that Mennella told her if she could

not do her work at that time, she should not come in at all. Id.

at 2 3 . Mennella also told Lillibridge that the company's policy

required that she provide Wooden Soldier with a doctor's note

explaining the limitations of her injury prior to returning to

work. Id. During that phone call, Lillibridge agreed to provide

her employer with a doctor's note and later testified that she

found this request to be reasonable. Id. at 7 , 22-23. Mennella

suggested that Lillibridge have her doctor fax the note so that

she could attend her next scheduled work shift on Tuesday,

February 2 2 . Id. at 4 5 .

That same evening, Mennella left a phone message for

Lillibridge, informing her that she would be at Wooden Soldier

all evening and requesting that she call her back to report the

status of the doctor's note. Id. Lillibridge called back that

evening and left a message that she had not reached her doctor,

but she would try to reach him Monday, February 2 1 , 1994. Id. at

7, 45.

On Monday, February 2 1 , 1994, Lillibridge called in sick to

work. Ellen King's Affidavit ¶ 3 (attached to defendant's motion

3 as Exhibit I V ) . The next day, Ellen King, a Wooden Soldier

employee who coordinates disabled employees' return-to-work

efforts, called Lillibridge to expedite her return to work. Id.

¶ 4. She spoke with Lillibridge's husband and was told

Lillibridge had not yet secured the doctor's note. Id.

Wooden Soldier did not get the requested fax of the doctor's

note until March 1 8 , 1994. David Mennella's Affidavit ¶ 8

(attached to defendant's motion as Exhibit I I I ) . While it is

unclear from the record exactly why Wooden Soldier did not

receive the doctor's note sooner, Lillibridge herself reports

that she did not provide her doctor with Wooden Soldier's fax

number until "sometime in March." Lillibridge's Affidavit ¶ 1 5 .

She also admits that she never followed up with her doctor, nor

with Wooden Soldier, to confirm or expedite the doctor's

conveyance of the note to Wooden Soldier. T r . of Dept. of Labor

Hearing at 8 .

After Lillibridge's conversation with Yvonne Mennella on

Friday, February 1 8 , Lillibridge attempted "a couple of times" to

contact Wooden Soldier to discuss returning to work. Id. She

was told she needed to speak with Wooden Soldier's president,

David Mennella, personally. Id. Lillibridge was unable to reach

him, initially because he was out of town and subsequently

because he was "unavailable". T r . of Dept. of Labor Hearing at

8 ; Lillibridge's Affidavit ¶¶ 1 3 , 14 (attached to plaintiff's

4 objection as Exhibit A ) . On April 7 , 1994, Lillibridge sent David Mennella a letter

requesting to resume her job. Lillibridge Letter (attached to

defendant's motion as Exhibit II(B-1)). He responded with a

letter denying her request. Mennella Letter dated April 1 5 , 1994

(attached to defendant's motion as Exhibit II(B-2)).

Discussion

1. Summary Judgment Motion

a. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman

v . Prudential Ins. C o . of Am., 74 F.3d 323, 327 (1st Cir. 1996).

Since the purpose of summary judgment is issue finding, not issue

determination, the court's function at this stage "'is not [ ] to

weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Stone &

Michaud Ins., Inc. v . Bank Five for Savings, 785 F. Supp. 1065,

1068 (D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc., 477

U.S. 2 4 2 , 249 (1986)).

When the non-moving party bears the burden of persuasion at

trial, to avoid summary judgment he must make a "showing

sufficient to establish the existence of [the] element[s]

5 essential to [his] case." Celotex Corp. v . Catrett,, 477 U.S.

317, 322-23 (1986). It is not sufficient to "'rest upon mere

allegation[s] or denials of his pleading.'" LeBlanc v . Great Am.

Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993) (quoting Anderson,

supra, 477 U.S. at 2 5 6 ) , cert. denied, ___ U.S. ___, 114 S . C t .

1398 (1994). Rather, to establish a trial-worthy issue, there

must be enough competent evidence "to enable a finding favorable

to the non-moving party." Id. at 842 (citations omitted).

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the non-moving party's favor. Anderson, supra, 477 U.S. at

255. Nevertheless, "[e]ven in cases where elusive concepts such

as motive or intent are at issue, summary judgment may be

appropriate if the non-moving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation."

Medina-Munoz v . R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st

Cir. 1990) (citations omitted).

b. ADA Claim

Lillibridge claims that Wooden Soldier terminated her in

violation of Title I of the ADA. Lillibridge must prove three

elements in order to obtain relief under the ADA: (1) at the time

of her termination she was disabled as defined by the ADA; (2)

despite being disabled she was "otherwise qualified" to do the

6 essential tasks of her job, with or without "reasonable accommodation" by her employer; and (3) she was discharged, in whole or in part, because of her disability. See Katz v . City Metal Co., 87 F.3d 2 6 , 30 (1st Cir. 1996). 4 For the reasons that follow, the court finds and rules that Lillibridge has failed to establish the threshold requirement that she was disabled within the meaning of the ADA. Therefore, the court will confine its discussion to the first element.

The ADA defines disability a s ,

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment. 42 U.S.C. § 12102(2). In her objection, Lillibridge does not argue that she was "disabled in fact;" rather, she argues that Wooden Soldier perceived her to be disabled, and invokes section 12102(2)(c). The "regarded as" or perceived disability provision was developed

4 It is possible for a plaintiff to indirectly prove disability employment discrimination by employing the prima facie case and McDonnell-Douglas burden-shifting scheme as illustrated in Katz, supra, 87 F.3d at 3 0 . A decision as to whether a burden-shifting model is appropriate in the instant case need not be made, as the scope of this order is limited to plaintiff's threshold element of disability. The standard for showing disability is the same, regardless of whether a burden-shifting model is employed.

7 to provide relief to people who do not have a "disability in

fact" but who are adversely impacted by an employer's perception

that they are disabled. See 29 C.F.R. app. § 1630.2(l) (1991).

Under the regulations of the Equal Employment Opportunity

Commission (EEOC) promulgated to implement the ADA,5 Lillibridge

must show that (1) Wooden Soldier perceived her to have an

impairment (2) that "substantially limited" (3) one or more of

her "major life activities." See 29 C.F.R. § 1630.2(l)(1)

(1991).

A physical impairment is defined to include any

physiological condition that affects an enumerated body system,

one of which is the musculoskeletal system. See 29 C.F.R. §

1630.2(h)(1). An impairment is considered to "substantially

limit" an individual if it renders that individual (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

5 Administrative regulations are controlling law unless found to be "arbitrary, capricious, or contrary to the statute." Reich v . Newspapers of New England, Inc., 44 F.3d 1060, 1070 (1st Cir. 1995).

8 29 C.F.R. § 1630.2(j)(1).

In determining whether a perceived impairment rises to the

level of being "substantially limiting", the following factors

should be taken into account: (i) The nature and severity of the [perceived] impairment; (ii) The duration or expected duration of the [perceived] impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the [perceived] impairment.

29 C.F.R. § 1630.2(j)(2).

In determining whether Wooden Soldier perceived Lillibridge to have a physiological disorder that substantially limited a major life activity, the court will examine the information Wooden Soldier had access to regarding Lillibridge's condition.

On February 8 , 1994, plaintiff reported wrist pain to her supervisor. On February 1 8 , after a doctor's appointment, she informed Yvonne Mennella that she had a temporary cast on her wrist that prevented her from doing handwriting. Then, in March, Lillibridge told Wooden Soldier, subsequent to a doctor's appointment, that her cast was off and she could return to work.

On March 1 8 , 1994, Wooden Soldier received the doctor's reports from D r . Gary L . Woods regarding plaintiff's two visits for her wrist. The February 18 report states, in relevant part, This appears to be simply an overuse type picture

9 and does not sound like a carpal tunnel as such. I think to achieve optimum rest for all the wrist . . . a short arm thumb spica cast would be optimum. This would allow her to continue to write although it would require her to arm write rather than wrist write. . . . This is discussed with her and she feels that she can do that job therefor[e] cast was applied . . . . [We will] see her back for recheck in 4 weeks, cast off and re- evaluation.

Dr. Woods' report re Feb. 1 8 , 1994, appointment with Lillibridge

(attached to defendant's motion as Exhibit II(A-2).

The follow-up report from March 9 states, in relevant part,

I don't see anything that makes me specifically very concerned in terms of any bony ligamentous circulation or neurologic abnormalities. My sense is that just because of her general make up she is unable to carry out handwriting for a strenuous interval . . . very similar to someone who can be a recreational runner, but just simply cannot train sufficiently long to become a marathoner. In this particular situation I don't see anything that is intrinsically anatomically or physiologically incorrect . . . .

Report of D r . Gary L . Woods re March 9, 1994, appointment with

Lillibridge (attached to defendant's motion as Exhibit II(A-3)).

None of the aforementioned information on plaintiff's

condition would have led Wooden Soldier to conclude that her

wrist condition was a "substantial limitation." Neither she nor

her doctor indicated her condition was severe in nature, expected

to persist for a long duration, or expected to have a long-term

impact. See 29 C.F.R. § 1630.2(j)(2). In Lillibridge's

10 February 18 conversation with Yvonne Mennella, she attributed her inability to handwrite to the presence of her temporary cast rather than to prohibitive wrist pain. The doctor concluded in his report that plaintiff's inability to work as a telephone order taker was not due to a physiological condition.

Next, in determining whether defendant perceived plaintiff

to have a physiological disorder that substantially limited a major life activity, the court will consider David Mennella's

letter to Lillibridge rejecting her re-employment request. He

writes the following:

1.) The report from your physician (Dr. Gary L . Woods) on February 1 8 , 1994 indicates that your arm was put in a type of cast which would allow you to write and do some data entry on the computer to enable you to continue to perform your job. You chose however, not to return to work. . . . When our Job Care representative tried to contact you concerning your absence from work, she found you difficult to reach and unwilling to cooperate. 2.) According to your physician's (Dr. Woods) re-evaluation from your follow up examination on March 9, 1994 you are unable to perform your job not because of any medical disorder but because of your general make u p . He states that he "would avoid trying to do any dramatic procedures or any long term changes to make her fit that particular task." D r . Woods further states that you "should just not do that particular job" (telephone order taker) . . . . . . . [I]t is in your best interest and in the best interest of The Wooden Soldier to follow your physician[']s advi[c]e.

Letter of David Mennella to plaintiff dated April 1 5 , 1994

11 (attached to defendant's motion as Exhibit II(B-2)).

The letter reflects Wooden Soldier's perception that

Lillibridge did not even suffer from a physiological order. In

addition, the letter reflects Wooden Soldier's perception that

Lillibridge was not actually limited in her ability to work while

the cast was on her wrist, contrary to what she told Yvonne

Mennella on February 1 8 . The doctor's report states that both

Lillibridge and her doctor believed she would be able to

handwrite while in the cast. David Mennella's letter to

plaintiff reflects his perception, whether correct or not, that

she was able to work with the cast on her wrist but chose not t o .

Finally, the letter quotes the doctor's report that

Lillibridge "just 'should not do that particular job' (telephone

order taker." This belief, stated by the doctor and quoted by

Wooden Soldier, is not evidence that either party perceived

Lillibridge to be "substantially limited." In measuring "substantial limitation," an impairment is to

be measured in relation to the average person. See Soileau v .

Guilford of Maine, Inc., ___ F.3d ___, ___, 1997 WL 17956, *4

(1st Cir. Jan. 2 3 , 1997). For Wooden Soldier to have perceived

Lillibridge as substantially limited, it must have perceived her

as "unable to perform a major life activity that the average

person in the general population can perform." See 29 C.F.R. §

12 1630.2(j)(1). Lillibridge's doctor did not state that she was

unable to perform handwriting, an activity the average person can

perform. He concluded she was simply not well suited for the

strenuous6 handwriting required of a catalog order taker. He

compared her to a person who can "train to be a recreational

runner, but just simply cannot train sufficiently long enough to

become a marathoner." Lillibridge's doctor did not believe she

was substantially limited and found nothing "anatomically or

physiologically incorrect." Consequently, Wooden Soldier, in

relying upon the doctor's opinion, did not perceive Lillibridge

to be substantially limited in her inability to do strenuous

handwriting.

This case is similar to Soileau. In that case, a plaintiff

brought an ADA claim against his employer asserting he was

substantially limited by his diagnosed depressive disorder

because it affected his ability to interact with others. The court rejected this argument, noting,

6 According to plaintiff, she would complete "up to 58 phone calls per shift" and would handwrite the orders she received during these calls. See Lillibridge's Affidavit ¶ 4 (attached to plaintiff's objection). David Mennella testified that the average telephone order takes five and a half minutes to complete. See T r . of Dept. of Labor Hearing at 63 (attached to defendant's motion as Exhibit I ) . Therefore, Lillibridge spent up to forty minutes an hour, or two-thirds of her total work time, handwriting catalog orders.

13 Impairment is to be measured in relation to normalcy, o r , in any event, to what the average person does. Soileau claims he had to leave pubs and stores when they became crowded. But there is nothing extraordinary about preferring uncrowded places. Soileau performed his normal daily chores, went grocery shopping, and visited pubs. That he left pubs and stores when he felt there were too many people does not establish that the nature and severity of his impairment were substantial.

Soileau, supra at * 4 . In the present case, Lillibridge's job as

a telephone order taker required an unusual amount of

handwriting. It is not "extraordinary," as compared to the

average person, that she was not well suited to this task.

The evidence in this case on the issue of perceived disability can be distinguished from Katz v . City Metal Co., 87

F.3d 26 (1st Cir. 1996). In Katz the plaintiff brought an ADA

claim against his employer for firing him one month after he

suffered a heart attack and underwent angioplasty surgery. The

court reversed the lower court's judgment as a matter of law for

defendant, reasoning that Katz produced sufficient evidence on

the issue of perceived disability for a jury to find in his favor. Katz's supervisor observed his unsuccessful attempt to

climb a flight of stairs to get to his office upon his initial

return to work. The supervisor was aware of Katz's heart attack

and surgery, and Katz had told him he would initially need to

return to work in a limited capacity. The court found this

14 evidence to be sufficient.

In contrast, Lillibridge has produced no evidence that

Wooden Soldier perceived her to be substantially limited in her

ability to work. Yvonne Mennella's perception on February 18

that Lillibridge could not write was based upon her assertion

that she could not write with a cast on her wrist. Having one's

wrist in a cast is not a severe or permanent condition, hence it

is not substantially limiting. Any subsequent perceptions Wooden

Soldier may have developed regarding Lillibridge's inability to

do her job were based on doctor's reports, which also concluded

that plaintiff's condition had no physiological basis.

The court does find one piece of evidence that, while

ultimately irrelevant to this court's opinion, does bear mention

here. During Lillibridge's February 1 8 , 1994, telephone

conversation with Yvonne Mennella, she told Mennella she could

not do the writing part of her job while the cast was on her wrist. Plaintiff testified that Mennella then told her that if

she could not do her job at that time, she should not come to

work. T r . of Dept. of Labor Hearing at 23 (attached to

defendant's motion as Exhibit I ) . Mennella denies this. Id. at

47.

Even if Mennella made that statement, it is not material to

the issue of perceived disability because it is not evidence that

15 she perceived plaintiff to be substantially limited. To the

contrary, the statement suggests Mennella believed plaintiff

would eventually be able to return to work. The court concludes there is insufficient evidence that Wooden Soldier perceived Lillibridge's condition to be substantially limiting. In fact, the record reflects contrary evidence which suggests Wooden Soldier believed neither that Lillibridge suffered from a physiological disorder nor that she was substantially limited by her wrist condition.

After careful consideration of the record, this court finds

that Lillibridge has failed to produce sufficient evidence on the

threshold element of disability, and thus has failed to meet her

burden of production. Therefore, defendant is entitled to

summary judgment on Count 1 of plaintiff's complaint.

Conclusion

For the foregoing reasons, defendant Wooden Soldier's motion

for summary judgment on Count I of plaintiff's complaint must be

and herewith is granted. The court declines to exercise its

supplemental jurisdiction over the plaintiff's state law claims,

and those claims are dismissed without prejudice. See 28 U.S.C.

16 § 1367(c)(3). The clerk shall enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court February 4 , 1997

cc: Leslie H . Johnson, Esq. Linda S . Johnson, Esq.