Mathieu v. Moore Business Forms CV-97-092-JD 06/12/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David W. Mathieu
v. Civil No. 97-92-JD
Moore Business Forms, Inc.
O R D E R
The plaintiff, David M. Mathieu, brought this action against
the defendant, Moore Business Forms, Inc.,1 alleging that the
defendant discriminated against him because of a disability in
violation of the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. §§ 12101-12213, and because he took medical leave
pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), 5
U.S.C. §§ 6381-6387, 29 U.S.C. §§ 2601-2654. The plaintiff's
claim for wrongful termination in count I has been previously
dismissed. Before the court is the defendant's motion for
summary judgment on the plaintiff's remaining claims in counts II
and III (document no. 15).
1Since the commencement of this action, the defendant's name has changed to Moore U.S.A. Inc., but this change is of no significance to the instant motion. Background2
The plaintiff was hired by the defendant on January 26,
1970. He started as a press helper and then transferred to the
position of collator operator. In October or November of 1994,
the plaintiff transferred to the position of off-line operator
because the need for collator operators was decreasing and he was
concerned that if he did not transfer his day-shift position
would be eliminated. The off-line operator position was more
challenging than his prior position and he had difficulty meeting
the defendant's performance expectations. The plaintiff's
employment was terminated on May 15, 1996, effective the
following day. The defendant asserts that the plaintiff was
discharged pursuant to company policy because of errors he made
on the off-line machine, but the plaintiff asserts that the use
of the error policy to discharge him was a pretext for illicit
discrimination. Accordingly, the court sets forth seriatim the
21he court summarizes the facts applicable to the instant motion, taking disputed issues of material fact in the light most favorable to the plaintiff and granting reasonable inferences in his favor. See DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). Although the plaintiff has attempted to dispute many issues in the case, he often relies on conclusory allegations, conflicting information, and inferences that are unreasonable based on the evidence. See infra notes 5 & 6 for examples. The court disregards such attempts and grants the plaintiff only the benefit of the reasonable inferences to which he is entitled. See infra note 8.
2 relevant background information pertaining to the following: (A)
the plaintiff's contention that he is disabled; (B) the
defendant's assertion that the plaintiff was discharged because
of errors he committed; and (C) the events immediately preceding
the plaintiff's discharge.
A. Plaintiff's Alleged Disability
The plaintiff has been diagnosed with a major depressive
disorder.3 He has received treatment for depression since 1993
and taken medication since 1994. He was hospitalized for
depression from January 4, 1995, to January 20, 1995. During
that time he was out of work on short-term disability leave. The
primary cause of the hospitalization, as conveyed to his treating
physician, was the termination of his relationship with his
fiancee because of her infidelity, but the plaintiff asserts that
his condition was also exacerbated by work-related stress.
The parties dispute the extent of the defendant's knowledge
about the plaintiff's condition in general and the circumstances
surrounding his hospitalization in particular. The plaintiff
asserts that his distress was so obvious at times that employees
3The plaintiff's DSM-IV diagnosis is Major Depressive Disorder, Single Episode, Recurrent, Severe Without Psychotic Features. The DSM-IV's diagnostic code for this disorder is 296.23.
3 of the defendant "must have regarded [him] as having psycho
logical problems." Pl.'s Mem. of Law in Supp. of Objection to
Summ. J. ("Pl.'s Obj.") at 16. Despite such assertions, however,
because the plaintiff "wasn't exactly proud of being treated for
depression," he concealed from the defendant the reason for his
January 1995 medical leave, stating that he "was stressed out"
and "needed time off." Pl.'s D e p . at 78. On forms filled out by
the plaintiff and presented to the defendant in connection with
his disability leave, he indicated that the leave was not related
to his employment. Employees of the defendant heard rumors that
the plaintiff had suffered a nervous breakdown and that he was
suicidal, but have denied any personal knowledge of the details
of the plaintiff's condition.
The plaintiff asserts that the main work-related feature of
his depression is that it made it difficult for him to deal with
stress and effectively perform his job duties. This manifested
itself in a variety of ways. For example, the plaintiff's shift
varied in length during his tenure between eight- and twelve-hour
shifts, and the plaintiff had particular difficulty working
twelve-hour shifts without committing errors. In addition, the
plaintiff asserts that his stress and error rate were exacerbated
by the lack of training he received in the off-line operator
4 position.4 The plaintiff thus does not dispute that he had
difficulty fulfilling the defendant's performance expectations on
the off-line machine, but rather contends that his depression and
the defendant's inflexibility in accommodating his depression
made him unable to perform his job effectively. The plaintiff
asserts that, despite his depression, he could have performed
either the off-line operator position or another, less stressful
position if the defendant had been willing to accommodate him.
The defendant did not provide the plaintiff with any
accommodations. During the plaintiff's employment, supervisors
were not given training in how to handle issues relating to
worker disabilities and the defendant did not post information in
the workplace about the ADA as it reguires. During his
employment, the plaintiff was not aware of the ADA and did not
reguest any accommodation as such. The plaintiff made some
complaints and reguests to supervisors, but the freguency of
4Part of the off-line operator position involved magnetic ink character recognition ("MICR"). MICR work was among the more challenging duties involved in operating the off-line machine and was a large source of errors. The plaintiff received only on- the-job training on the use of the off-line machine. Other employees received classroom training relating specifically to MICR. The plaintiff has denied, however, that the failure to provide him with classroom training was motivated by a discriminatory animus. See Pl.'s Dep. at 71-73. Because the court does not reach the issue of reasonable accommodations, the plaintiff's claim about inadeguate training is of marginal relevance.
5 these comments, their substance, and their efficacy to place the
defendant on notice of the plaintiff's condition and his need for
an accommodation is disputed.5
5For example, the plaintiff has presented the affidavit of Richard Lamy, his supervisor, which includes the following statement: "While I was [the plaintiff's] supervisor, he did occasionally complain about having to work 12 hour shifts." Pl.'s E x s ., Ex. 5, 5 4. The plaintiff attempts to argue, based in part upon this statement, that the defendant had knowledge of the plaintiff's work-related stress and his inability, due to his depression, to work a 12-hour shift on the off-line machine. Lamy's subseguent deposition, however, places this statement in a starkly different context. He has averred the following:
Q (by defense counsel): [Your affidavit] says that "While I was [the plaintiff's] supervisor, he did occasionally complain about having to work 12-hour shifts."
A (by Lamy): That's correct.
Q: You told me a few moments ago that he never made that complaint to you?
A: No, I didn't say that. I said that he complained about his feet, and that he did complain about the 12-hour shift.
Q: In connection with his feet?
A: Yes.
Q: So when you're talking there about, paragraph four, about working 12-hour shifts, it was because his feet hurt?
A: Exactly.
Lamy Dep. at 38-39. Lamy's affidavit is thus insufficient to raise a genuine issue of material fact with respect to the defendant's knowledge about the link between the plaintiff's poor performance and his alleged disability. The court discusses the
6 B. Defendant's Proffered Reason for Plaintiff's Discharge
The business forms industry, in which the defendant is
engaged, is very competitive. As a result, the defendant places
a premium on worker efficiency, which includes both high
productivity and a low error rate. The defendant has an error
policy, which was in force during the plaintiff's employment,
that reflects its concern with keeping errors to a minimum and
removing employees who have high error rates.
The defendant's error policy is based on the number of
chargeable errors committed during the preceding twelve-month
period. A chargeable error is one that costs the defendant over
one hundred dollars to correct. Errors which cost less than one
hundred dollars to correct are considered non-chargeable errors,
but every three non-chargeable errors committed during a twelve
month period are counted as one chargeable error. The
progressive disciplinary steps established by the error policy
are as follows: for three errors, a verbal warning; for five
errors, a written warning; for six errors, a recommended twenty-
four work hour suspension; and for seven or more errors, severe
implication of other statements proffered by the plaintiff with respect to this issue infra.
7 disciplinary action up to and including termination.
The plaintiff was ultimately terminated pursuant to the
defendant's error policy. He committed the following chargeable
errors leading to his dismissal: on April 16 , 1995 , a $1,913.54
error; on May 19, 1995, a $1,036.31 error; on May 25, 1995, a
$1,489.30 error; on July 9, 1995, a $602.63 error; on March 18,
1996, a $412.00 error; on March 28, 1996, a $541.36 error; and on
April 4, 1996, a $652.28 error. The plaintiff has failed to
raise a genuine factual dispute about his commission of the
errors and the application of the error policy against him.6
6The plaintiff, in his memorandum in opposition to the motion for summary judgment, states the following: "There is considerable doubt about the accuracy of the tally of errors charged against [the plaintiff]." Pl.'s Obj. at 4. However, the plaintiff has failed to provide any competent evidence in support of this bald assertion. To the contrary, in his deposition he averred the following:
Q [defense counsel]: And in the context of getting the machine running and doing your work [on April 4, 1996], you committed certain additional errors ?
A [plaintiff]: Yes, I did.
Q: And when you came in on Monday, April 8, you were confronted with those errors?
A: Yes, but I'm not even sure if it should have been an error. I ran so little, I don't know whether it affected the guantity of the order, whether they made the order or not. Q: Is it your contention that they did not follow the error policy on their meeting with you on April 8?
A: It was my contention that they were out to get me.
Q: Well, I know you think they were out to get you, sir. That's not what I asked you. What I asked you was whether or not you can point to anything that confirms the fact from your point of view that they didn't follow the error policy that you recognized as being in place?
A: Well, there's more to this too.
Q: You can answer my guestion and then you can tell me what more there is. Did they follow the error policy?
Q: And in accordance with that error policy, was the discipline that was going to occur to you termination?
A: The possibility of termination, yes.
Q: Now, you said there were some other things too. What were the other things?
A: Well, in May I was told I had two errors dropping off because of the --
Q: May of what year?
A: In May of '96, the year I was terminated, I had two errors that were going to be dropped due to the time period. Whether those were dropped before my termination date or they managed to fire me before those two were dropped, I don't know. The plaintiff, however, contends that the error policy was
wielded against him as a pretext for the defendant's real motive,
an illicit discriminatory animus against him. Richard Lamy, the
plaintiff's former supervisor, has averred that the defendant did
not enforce the error policy consistently against all employees.
Lamy stated that the defendant would aggressively use the error
policy to eliminate employees it considered less desirable. The
defendant considered employees' productivity, error rate,
attendance, and attitudes in determining employee desirability.
Due to increasing competition in the industry, the defendant
would periodically downsize its operation, resulting in the
dismissal of employees. When a downsizing resulted in the
elimination of positions, however, employees were discharged
strictly on a seniority basis despite the fact that the defendant
did not always consider the more senior employees to be the more
desirable employees.
To enable the defendant to retain employees it considered
more desirable and eliminate employees it considered less
Pl.'s Dep. at 117-19. As this deposition testimony makes clear, the plaintiff committed the errors with which he was charged, has no evidence that the error tally was incorrect, and bases this claim only on his suspicion that the defendant was "out to get" him.
10 desirable, managers would prepare a "hit list" of the least
desirable employees. Then, prior to a downsizing, managers would
strictly enforce company policy, including the error policy, to
discharge employees on the hit list. On the other hand, some
supervisors would find ways to shield favored employees from
chargeable errors, such as charging errors to former employees
who had already left by the time the errors were committed and
charging errors to the plant. It is undisputed, however, that
every employee who was charged with seven errors in a twelve
month period was discharged.
At some point prior to April 4, 1996, Lamy designated the
plaintiff as a less desirable employee and placed him on the hit
list. Lamy has averred that he did not place the plaintiff on
the hit list because of his disability or use of leave and the
plaintiff has not contested this fact.7 Instead, the plaintiff
7The plaintiff would be hard-pressed to discredit Lamy's assertions in this respect even if he were inclined to do so. Although Lamy's testimony on this issue would be entitled to little weight if he were an employee of the defendant, Lamy is a former employee who left in part because of his dissatisfaction with the defendant. Indeed, Lamy is the plaintiff's witness and the plaintiff relies heavily on his testimony to support other aspects of his case. Under such circumstances, it would be less reasonable for a fact finder to credit those elements of Lamy's testimony that support the plaintiff's claim and to disregard those elements of his testimony that contradict it than for the fact finder to disregard wholly the testimony if he were an interested witness.
11 focuses on the events leading up to his discharge and the actions
of the human resources manager, Paul Bayer.
C. The Plaintiff's Discharge
On April 4, 1996, just prior to the plaintiff's dismissal,
he had an anxiety attack while working on the off-line machine.
The plaintiff, under severe pressure to get a job ready to run on
the off-line machine, felt that the stress of the position was
too much for him to continue to deal with. He noticed the human
resources manager, Paul Bayer, walking by and flagged him down.
He then begged Bayer for help because the stress of operating the
off-line machine was overwhelming him and he could not handle it.
He reguested that he be assigned to any other job. The plaintiff
does not remember Bayer's specific response, but believes that he
was noncommittal.
On April 4, the plaintiff made one or more additional
chargeable errors, placing him at risk of termination under the
defendant's error policy. Due to the plaintiff's schedule, his
next shift was April 8, 1996. On that day, within the first hour
of his shift, Lamy and Bayer called the plaintiff away from his
position to meet with him regarding his performance on the off
line machine. They informed him that he had committed errors
during his shift on April 4 and that they needed to do further
12 investigation into the errors and to determine what action the
defendant would take with respect to the plaintiff's employment.
They suspended the plaintiff pursuant to that investigation.
During the meeting, the plaintiff informed Lamy and Bayer that
his doctor had suggested that he be transferred from the off-line
machine.
The plaintiff's suspension and the threat of possible
termination caused him a great deal of anxiety and worsened his
depression. He went to see his psychologist, who recommended
that he take time off from work. He reguested and was granted a
medical leave of absence.
On May 15, 1996, while the plaintiff was on medical leave
and at the defendant's reguest, the plaintiff attended a meeting
at the plant. At that meeting, the plaintiff was informed that
the defendant had decided to terminate his employment pursuant to
its error policy effective the following day. The plaintiff
contends that the errors committed on April 4 were just a pretext
for discharging him because he broke down in front of Bayer. He
has asserted the following: "I believe that the errors I was
faulted for that took place on [April 4] were just an excuse to
discipline me, as part of a process to get rid of me, because I
had told Mr. Bayer that I could not continue working in those
circumstances and that I was a nervous wreck." Exs. to Pl.'s
13 Obj. to Mot. for Summ. J. ("Pl.'s Exs."), Ex. 1, 5 25.
The plaintiff subsequently brought this action asserting
that his discharge, inter alia, violated the ADA and the FMLA.
The defendant has moved for summary judgment on the plaintiff's
remaining claims. Since his discharge, the plaintiff has held
two jobs driving a forklift. He currently works four ten-hour
days per week without difficulty. He is still being treated for
depression.
Discussion
The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually required." Snow v.
Harnischfeaer Corp., 12 F.3d 1154, 1157 (1st Cir. 1993) (quoting
Wynne v. Tufts Univ. Sch. of Med . , 976 F.2d 791, 794 (1st Cir.
1992)). The court may only grant a motion for summary judgment
where the "pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law."8 Fed. R. Civ. P. 56(c). The party seeking summary
8The plaintiff, in opposition to the defendant's motion for summary judgment, has introduced an affidavit to support his case
14 judgment bears the initial burden of establishing the lack of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Quintero de Quintero v. Aponte-Rogue,
974 F.2d 226, 227-28 (1st Cir. 1992). The court must view the
entire record in the light most favorable to the plaintiff,
"'indulging all reasonable inferences in that party's favor.'"
Mesnick v. General Elec. Co . , 950 F.2d 816, 822 (1st Cir. 1991)
(guoting Griqqs-Rvan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990)). However, once the defendant has submitted a properly
supported motion for summary judgment, the plaintiff "may not
rest upon mere allegation or denials of his pleading, but must
set forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986) (citing Fed. R. Civ. P. 56(e)).
The plaintiff's ADA claim is comprised of two separate
theories: (1) the defendant failed to make reasonable
accommodations to the known limitations of the plaintiff, see 42
U.S.C.A. § 12112(b)(5)(A) (West 1995); and (2) the defendant
that contains certain statements that contradict his prior deposition testimony. The plaintiff's affidavit, subscribed after his deposition, contains no explanation of why his testimony changed. Therefore, to the extent the plaintiff's subseguent affidavit contradicts his unambiguous prior deposition testimony, the plaintiff's affidavit "should be disregarded in considering the propriety of summary judgment." Colantuoni v. Alfred Calcaqni & Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994) .
15 terminated the plaintiff's employment because of his disability,
see i d . § 12112(a). The plaintiff also contends that the
defendant violated the FMLA by discharging the plaintiff because
of his use of FMLA-guaranteed leave. The defendant has moved for
summary judgment on the plaintiff's ADA and FMLA claims,
asserting inter alia that (1) the plaintiff is not disabled
within the meaning of the ADA, and (2) the plaintiff has adduced
insufficient evidence of retaliation to warrant a trial on the
FMLA claim.
I. ADA Claim
The ADA prohibits discrimination against "a gualified
individual with a disability because of the disability of such
individual." 42 U.S.C.A. § 12112(a) (West 1995). Under the ADA,
a gualified individual with a disability is "an individual with a
disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires." I d . § 12111(8). The statute
defines a disability as " (A) a physical or mental impairment that
substantially limits one or more . . . major life activities
. . .; (B) a record of such an impairment; or (C) being regarded
as having such an impairment." I d . § 12102(2). The plaintiff
maintains that he meets each element of this definition and the
16 court accordingly considers each element seriatim.
A. Substantial Limitation in a Major Life Activity
An individual is disabled within the meaning of the ADA if
he has an impairment that substantially limits one or more major
life activities. See i d . § 12102(2)(A). Pursuant to the ADA's
implementing regulations, "major life activities" include
"functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working." 29 C.F.R. § 1630.2(1) (1997). An impairment
"substantially limits" an individual, with respect to the major
life activity of working, when he is
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
I d . § 1630.2(j )(3)(i). With respect to major life activities
other than working, the term "substantially limits" means that an
individual's impairment renders him:
(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
17 the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
Id. § 1630 .2 (j ) (1) .
In determining whether an individual is substantially
limited in a major life activity, the court should consider the
following factors:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(ill) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
I d . § 1630.2(j)(2). When properly documented, the impairment of
depression may constitute a substantial limitation on one or more
major life activities sufficient to meet the ADA's definition of
a disability. See, e.g., Criado v. IBM Corp., Nos. 97-1341 & 97-
1342, 1998 WL 282836, at *4-5 (1st Cir. June 5, 1998) (evidence
of depression as ADA disability sufficient to support jury
verdict); Ralph v. Lucent Techs., Inc., 135 F.3d 166, 168-70 (1st
Cir. 1997) (assuming, when evaluating likelihood of success of
preliminary injunction, that plaintiff's depression constituted
ADA disability); EEOC v. Amego, Inc., 110 F.3d 135, 141 (1st Cir.
1997) (assuming for summary judgment purposes that plaintiff's
depression constituted ADA disability); Soileau v. Guilford of
18 Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997) (plaintiff
introduced insufficient evidence that depression substantially
limited major life activity to qualify as ADA disability).
Medical evidence is not always necessary to establish the
existence of a disability and a "plaintiff himself . . . might
offer a description of treatments and symptoms over a substantial
period that would put the jury in a position where it could
determine that he did suffer from a disability within the meaning
of the ADA." Katz v. City Metal Co . , 87 F.3d 26, 32 (1st Cir.
1996). However, for medical conditions which are not obviously
disabling, medical testimony may be required to allow a jury to
determine that an impairment represents a continuing serious
condition that substantially limits one or more major life
activities. See i d . at 32-33.
The nature of the plaintiff's impairment, depression, does
not make it obvious to a lay jury that his condition constitutes
a long-term, substantial limitation on a major life activity.
See i d . at 32 (contrasting unobvious nature of heart condition
resulting in one severe heart attack with obvious nature of
missing arm). The defendant contends that the plaintiff is not
substantially limited in the major life activity of working
because he has asserted only that he is incapable of performing
the off-line operator position for a twelve-hour shift and he
19 currently operates a forklift for a ten-hour shift without
accommodation. The defendant further urges that the plaintiff
has not identified any other major life activity in which he
suffers substantial limitation. This showing meets the
defendant's initial burden of making a properly supported motion
for summary judgment, shifting the burden to the plaintiff to
demonstrate that a genuine issue of material fact remains for
trial.
The plaintiff concedes that the plaintiff is not
substantially limited in the major life activity of working but
asserts that he suffers substantial limitation in other major
life activities. In support of his claim, the plaintiff both
offers medical testimony and his own testimony to that effect.
The only medical evidence proffered by the plaintiff in
support of his claim for disability is an affidavit provided by a
psychologist, Richard DiNapoli, Ed. D., who treated the plaintiff
between December 30, 1994, and July 31, 1996. DiNapoli has
attested, in pertinent part, the following:
Certainly, while [the plaintiff] was hospitalized, many of his major life activities were substantially limited, including his mental and emotional processors such as thinking, concentrating, and interacting with others. Generally speaking at that time he needed hospitalization because life seemed overwhelming to him and he could not function on his own. In addition, [the plaintiff] reported significant episodes of insomnia.
20 [The plaintiff] often complained about the conditions at work exacerbating his underlying depression disorder.
[The plaintiff] complained that he was assigned to a new machine by his employer, [the defendant] , and that he had been given little training to operate the machine. He was reguired to perform the job at a productivity level and a gualitative level that caused him significant anxiety especially when he worked 12 hour shifts.
The stress of his job reguirements, especially when faced with 12 hour shifts, exacerbated his underlying depressive disorder. It brought on occasional panic and/or anxiety attacks.
[The plaintiff] reported to me fears he had over losing his job. This fear in combination with other stressors in his life and work caused him increased anxiety, which in turn exacerbated his ongoing depression disorder.
I believe that, if [the plaintiff] had been able to work in a less stressful environment by some combination of fewer hours per shift or less productivity demands or more training, or a different position, he could have functioned at work more effectively especially with the assistance of medication.
Pl.'s Exs., Ex. 6, 55 10-16. The only mention of any substantial
limitation on a major life activity in this evidence is
DiNapoli's conclusion that the plaintiff "certainly" suffered
such limitations in "many of his major life activities" during
the time he was hospitalized from January 4, 1995, to January 20,
1995. Notably absent from DiNapoli's assessment is any
21 indication that the plaintiff suffered any ongoing substantial
limitation in any major life activity subseguent to the
hospitalization. See Katz, 87 F.3d at 32 (severe limitation
connected to single hospitalization alone insufficient to
establish long-term impairment). The court finds that the
duration of the plaintiff's hospitalization alone is insufficient
to constitute a disability and that the remainder of DiNapoli's
statements provide an insufficient basis from which to conclude
that the plaintiff suffered any ongoing substantial limitation in
any specific major life activity.
The second form of evidence proffered by the plaintiff is
his own testimony presented by affidavit. Specifically, the
plaintiff has asserted the following:
From my experience, having depression affects your whole life. It affected my relationships with other people and my ability to work. At times, I would not care for myself, could not concentrate or do any task when under stress. I had trouble sleeping especially when I worked 12-hour shifts. At times, I could not cope with anything in life and contemplated suicide. I told co-workers at [the defendant's plant] about these feelings.
At least since 1994, I have been taking prescription medicine for depression, including Serzone.
Pl.'s Exs., Ex. 1, 55 6-7. These statements, however, do not
"offer a description of treatments and symptoms over a
substantial period that would put the jury in a position where it
22 could determine that he did suffer from a disability within the
meaning of the ADA." Katz, 87 F.3d at 32. The plaintiff's
general description, which clearly refers to his difficulties in
the past tense, fails to include the necessary temporal
information from which a fact finder could conclude that his
impairment was of significant duration. In addition, it fails to
provide a comparative basis from which to reasonably infer that
the plaintiff was
[s ]ignificantly 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.
29 C.F.R. § 1630.2(j ) (1) (ii) .
Even considered together with DiNapoli's account of the
plaintiff's depression, this evidence provides an insufficient
basis to demonstrate that the plaintiff's impairment meets the
statutory definition. Depression, although potentially severe
enough to meet the statutory definition of disability when its
effects are properly documented, does not compel a finding of
disability in every case. See Soileau, 105 F.3d at 15. In this
case, the court concludes that the plaintiff has adduced
insufficient evidence that he is substantially limited in any
major life activity to allow a reasonable fact finder to conclude
23 that he is disabled under this provision of the statutory
definition.
B. Having a Record of Such an Impairment
In addition to prohibiting discrimination against otherwise
gualified individuals who have an impairment that substantially
limits a major life activity, the ADA also prohibits
discrimination against otherwise gualified individuals who have
"a record of such an impairment." 42 U.S.C.A. § 12102(2)(B).
The ADA's implementing regulations provide that an employee "has
a record of such impairment" when he "has a history of, or has
been misclassifled as having, a mental or physical impairment
that substantially limits one or more major life activities." 29
C.F.R. § 1630.2(h). This provision is designed to protect people
from discrimination because they have a history of a disability,
such as someone who had but has recovered from cancer. See 2 9
C.F.R. § 1630 A p p . The plaintiff urges that his hospitalization
for depression constitutes such a record of a disability.
However, the plaintiff has pointed to no evidence that he had a
disability in the past beyond that presented in support of his
claim that he has a disability in the present.
As the court has already noted, the plaintiff's hospitali
zation, either standing alone or in combination with his
24 description of his subsequent symptoms, does not constitute a
sufficiently limiting impairment to warrant a finding of
disability under the statutory definition. A fortiori, the
record of this hospitalization is insufficient to create a record
of "such impairment," that is, an impairment that substantially
limits a major life activity. Therefore, the conclusion that the
plaintiff has not adduced sufficient evidence to support his
claim that he is currently substantially limited in a major life
activity leads directly to the conclusion that he has not adduced
sufficient evidence to support his claim that he has a record of
an impairment that substantially limits a major life activity.
C. Being Regarded as Having Such an Impairment
Finally, an individual may be considered disabled within the
meaning of the ADA if that individual "is regarded as having such
an impairment" by his employer. 42 U.S.C.A. § 12102(2)(C). An
employee "is regarded as having such an impairment" when he:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by [an employer] as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments [listed by the
25 regulations] but is treated by [an employer] as having a substantially limiting impairment.
29 C.F.R. § 1630.2(1).
The defendant has produced evidence supporting its assertion
that, during the time of the plaintiff's employment, it was not
aware that the plaintiff had any impairment beyond transitory
emotional distress based on difficulties in his personal life.
Although the plaintiff's depression apparently exceeded this
level, the defendant has also introduced evidence showing that
during his employment the plaintiff actively concealed the nature
and severity of his depression from the defendant. This evidence
satisfies the defendant's burden of demonstrating the lack of a
genuine issue of material fact and shifts the burden to the
plaintiff to produce evidence raising a material factual dispute
reguiring a trial. The plaintiff seeks to gain support for his
claim that the defendant regarded him as having a disability from
three kinds of evidence: (1) rumors that circulated at his
workplace that he had emotional problems and was potentially
suicidal; (2) his own assertions that employees of the defendant
must have known that his depression was interfering with his work
performance and therefore concluded that he was disabled; and (3)
his assertion that, based on the April 4 incident when he broke
down and begged Bayer for help, Bayer must have considered him to
26 be disabled.
The plaintiff's evidence of rumors about him at the plant is
so vague as to preclude any reliable inference about the
defendant's knowledge or belief as to his condition. The
following presents a representative example of the testimony of
fellow employees upon which the plaintiff relies:
Q (by plaintiff's counsel): Were you generally aware that [the plaintiff] had taken a leave of absence because he had a nervous breakdown or something like that?
A (by William Donald O'Brien, a coworker): No.
Q: Do you recall his taking a leave of absence sometime around January of '95?
A: I knew he was out, but I don't know the reason why.
Q: What were the rumors about that that you were aware of?
A: That he had a nervous breakdown or whatever, but I didn't know for a factual part.
Q: You certainly hadn't spoken to his doctors; you didn't know exactly what his situation was, correct?
A: Correct.
Q: Okay. But the general discussion was that [the plaintiff] had a nervous breakdown, correct?
Q: After [the plaintiff] came back from that leave of absence in the January/February 1995 time frame, was it generally known that [the plaintiff] was
27 having emotional problems?
A: No. Just said he couldn't sleep at night and everything.
Q: And were you aware he was taking medicine?
A: No.
Q: Have you ever heard of any rumors about [the plaintiff's threatening to commit suicide or possibly being suicidal?
Q: This was in the 1995/1996 time frame?
Pl.'s E x s ., Ex. 11 at 13-14. This testimony, while supporting
the plaintiff's contention that rumors about him circulated at
the plant, falls far short of allowing a reasonable inference
that the defendant regarded or treated the plaintiff as having an
impairment that substantially limited a major life activity.
The plaintiff also maintains that he complained repeatedly
to employees, including supervisors, about his inability to
perform his job due to stress, the length of his shifts, and his
lack of training on the off-line machine. He also reguested
transfers to other positions. The plaintiff urges that, based on
these statements, the defendant must have known about the extent
of his impairment and concluded that he was disabled. Even
assuming arguendo that the plaintiff's complaints were as
28 frequent and as clear as he now asserts, at most they allow an
inference that the defendant considered and treated the plaintiff
as incapable of performing the off-line operator position.9 As
discussed supra, the inability to perform a single job does not
constitute a substantial limitation on the major life activity of
working. Therefore, these statements are insufficient to allow a
reasonable inference that the defendant regarded or treated the
plaintiff as having a substantial limitation in any major life
activity.
Similarly, the plaintiff finally contends that, in the
aftermath of the April 4 incident in which he alleges that he
broke down in front of Bayer and begged him for help, Bayer must
have considered him disabled. Even assuming that Bayer did draw
negative conclusions about the plaintiff's condition and
abilities based on the incident, a proposition for which the
plaintiff has offered nothing more than his own bald assertion,
the plaintiff has not adduced sufficient evidence that any such
conclusions by Bayer extended beyond an assessment of the
plaintiff's ability to perform the functions of the off-line
operator position. Indeed, the plaintiff's own assertions admit
9It is undisputed that the plaintiff satisfactorily performed the collator operator position and other positions for over twenty years. After the plaintiff's discharge, the defendant provided him with a positive letter of recommendation.
29 as much, as witnessed by the following statements from his
affidavit:
Mr. Bayer had known from earlier conversations (at least three) that I wanted to transfer off the [off line] machine because I was such a nervous wreck, and because I could not operate the machine properly. I said to him you have to help; I cannot do this anymore. I begged him to please help me that I could no longer do the job as an off-line operator.
Pl.'s Exs., Ex. 1, 5 21. As noted previously, the defendant's
belief that the plaintiff could not perform the duties of the
off-line position, even if it also believed that the basis for
his inability was stress or depression, does not establish that
the defendant regarded the plaintiff as having a disability
because the inability to perform one job is not a substantial
limitation on the major life activity of working.
Even considering the plaintiff's evidence in all three of
these areas together, as the court must, it is insufficient to
allow a reasonable fact finder to infer that the defendant
regarded the plaintiff as having an impairment that substantially
limited one or more major life activities. At best, the
plaintiff's evidence allows the following reasonable inferences:
the defendant regarded the plaintiff as having personal problems,
possibly including depression; it regarded him as incapable of
performing the off-line operator position; and it believed that
there was some connection between the two. The plaintiff has
30 adduced insufficient evidence to allow a reasonable fact finder
to conclude that the defendant believed that lurking behind this
was an impairment that substantially limited one or more of the
plaintiff's major life activities. Despite the plaintiff's
valiant attempt to put the facts in this case in the most
positive light, the plaintiff's purported showing that the
defendant regarded him as having a disability is based on no more
than "conclusory allegations, improbable inferences, and
unsupported speculation." See DeNovellis v. Shalala, 124 F.3d
298, 306 (1st Cir. 1997).
D. Conclusion
The plaintiff has failed to demonstrate a genuine issue of
material fact with respect to any of the three possible
definitions of disability under the ADA.10 Accordingly, the
court grants the defendant summary judgment on count II of the
plaintiff's claims.
II. FMLA Claim
lOThe court need not consider the parties' additional arguments with respect to the plaintiff's claims that he was discharged because of his disability and that the defendant failed to accommodate him because the court has found that the plaintiff was not entitled to the protections of the ADA.
31 The FMLA guarantees eligible employees "a total of 12
workweeks of leave during any 12-month period" for a number of
reasons including "a serious health condition that makes the
employee unable to perform the functions of the position of such
employee." 29 U.S.C.A. § 2 6 1 1 (a)(1)(D) (West Supp. 1998). It
also prohibits retaliation against employees for reguesting or
taking guaranteed leave. See 29 U.S.C.A. § 2615(a) (West Supp.
1998). Recently, the First Circuit adopted the burden-shifting
framework developed in other discrimination cases "for analyzing
the tricky issue of motivation" involved when a plaintiff claims
he was discharged for taking FMLA leave but the employer claims
that he was discharged for a legitimate nondiscriminatory reason.
Hodgens v. General Dynamics Corp., No. 97-1704, 1998 WL 248013,
at *6 (1st Cir. May 21, 1998).
To sustain a claim within this framework, an employee must
first establish a prima facie case by showing the following:
(1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; [and] (3) there is a causal connection between the employee's protected activity and the employer's adverse employment action.
I d . at *7. The burden of production then shifts to the employer
"'to articulate some legitimate, nondiscriminatory reason for the
employee's [termination],' sufficient to raise a genuine issue of
fact as to whether it discriminated against the employee." Id.
32 at *6 (alteration in original) (quoting McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973)). If the employer does so,
the presumption of discrimination drops from the case and the
plaintiff must fulfill his "ultimate burden of showing that the
employer's stated reason for terminating him was in fact a
pretext for retaliating against him for having taken protected
FMLA leave." Id. Summary judgment in such cases is to be used
cautiously, but it may still be appropriate, particularly where
"the non-moving party rests merely on conclusory allegations,
improbable inferences, and unsupported speculation." I d . at *14,
16 (granting summary judgment on FMLA retaliation claim)
(internal quotations omitted).
In this case, the defendant argues that the plaintiff had
already exceeded the statutorily mandated leave period prior to
his dismissal and contends that the plaintiff has produced no
evidence that his discharge was in retaliation for requesting
medical leave. The plaintiff took more than eight weeks of
medical leave from July 25, 1995, to September 24, 1995, and more
than five weeks of medical leave from April 8, 1995, to May 18,
1996, the date of his discharge.11 Thus, at the time of the
H T h e plaintiff took the July-to-September leave to have kidney surgery. As previously noted, he took the April-to-May leave because of stress related to his suspension.
33 plaintiff's dismissal, he had already exceeded the leave time
guaranteed by the FMLA. The plaintiff concedes that the
defendant could have denied the plaintiff additional leave, but
contends that his discharge still violated the FMLA because it
was motivated by retaliation against him for his exercise of FMLA
leave. Therefore, the burden-shifting framework described in
Hodgens governs the plaintiff's claim. See i d . at *6.
For the purposes of this motion, the court assumes without
deciding that the plaintiff has made out a prima facie case of
retaliation. The defendant, in turn, has satisfied its burden of
demonstrating the lack of a genuine issue of material fact on its
claim that the plaintiff's violation of the error policy
constituted a legitimate reason for the plaintiff's discharge.
This showing shifts the ultimate burden of persuasion to the
plaintiff to adduce sufficient evidence from which a reasonable
fact finder could conclude not merely that the defendant's
proffered reason was a pretext, but that it was a pretext for
discriminatory retaliation against the plaintiff for his exercise
of rights guaranteed by the FMLA. See i d .
The plaintiff contends that the temporal proximity between
his begging for help on April 4, his reguested leave after his
suspension on April 8, and his termination on May 15 support the
inference that his termination was retaliatory. Although it is
34 true that "close temporal proximity between two events may give
rise to an inference of causal connection," see i d . at *16
(emphasis added), such an inference is not warranted in this
case. The plaintiff's use of FMLA medical leave during July to
September of 1995 significantly predated his discharge.12
Although his use of FMLA medical leave from April to May of 1996
immediately preceded his discharge, the circumstances of the
discharge belie any reasonable inference of a causal link between
the two events.
On April 8, the plaintiff was suspended pursuant to the
error policy pending a determination of whether he should be
discharged. The stress of the suspension and his fear of
termination allegedly worsened the plaintiff's depression,
causing him to seek the medical leave. To establish a causal
link between the leave and the discharge under such
circumstances, a fact finder would have to conclude that the
defendant decided not to discharge the plaintiff legitimately for
errors, in the face of uncontroverted evidence that it had
previously discharged every employee who was charged with seven
errors in a twelve-month period, but instead decided to discharge
him with discriminatory animus in retaliation for taking FMLA-
12The plaintiff's hospitalization in January 1995 is even further temporally removed.
35 guaranteed leave. The complete lack of evidence to this effect
provides a fact finder no reasonable basis to arrive at such a
conclusion.
The plaintiff also relies on his assertions that the
defendant utilized the error policy against him in a
discriminatory fashion. The court assumes arguendo that the
plaintiff's evidence about the defendant's use of the error
policy constitutes some competent evidence of pretext. See i d .
at *6. However, the plaintiff must produce evidence not merely
that the defendant's proffered reason for the discharge was
pretextual, but that it was a pretext for retaliation against the
plaintiff for his use of FMLA leave. See i d . The plaintiff has
come forward with nothing more than "conclusory allegations,
improbable inferences, and unsupported speculation" in support of
this claim. See i d . at *6.
The evidence of the plaintiff's own witness, Richard Lamy,
who has asserted that he placed the plaintiff on the defendant's
"hit list" because of poor performance, has not been controverted
by anything other than the plaintiff's self-serving assertions to
the contrary. The plaintiff has failed to offer any competent
evidence to suggest that the plaintiff's use of FMLA leave even
entered into the defendant's decision making process. The
plaintiff's allegations are simply insufficient to allow a fact
36 finder reasonably to infer that the real motive behind his
discharge was retaliation. Therefore, the defendant is entitled
to summary judgment on the plaintiff's FMLA claim in count III.
Conclusion
For the reasons stated above, the defendant's motion for
summary judgment on the plaintiff's ADA claim in count II and the
plaintiff's FMLA claim in count III (document no. 15) is granted.
The clerk is ordered to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
June 12, 1988
cc: Eugene R. Quinn, Esguire Edward M. Kaplan, Esguire