Nedder v. Rivier College CV-95-116-SD 09/03/96 P UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Mary Nedder
v. Civil No. 95-116-SD
Rivier College
O R D E R
In this civil action, plaintiff Mary Nedder alleges that her
former employer, Rivier College, terminated her employment as an
assistant professor of religious studies in violation of Title I
of the Americans with Disabilities Act of 1990 (ADA), Pub. L. No.
101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101-12117
(1995)). Plaintiff also brings claims under New Hampshire law
for breach of her employment contract, wrongful discharge, and
violation of the New Hampshire "Law Against Discrimination", New
Hampshire Revised Statutes Annotated (RSA) 354-A (1995).
On July 20 and 25, 1995, the court conducted an evidentiary
hearing on Nedder's motion for a preliminary injunction to
reinstate her in her position at Rivier College pending final
resolution of her action on the merits. The court denied the
motion on August 14, 1995. Nedder v. Rivier College, 908 F.
Supp. 66 (D.N.H. 1995). Presently before the court is defendant's motion for summary
judgment on Count I of the complaint (the ADA claim).1 Also
before the court is defendant's motion for judgment on the
pleadings as to Count III (the wrongful discharge claim) and
Count IV (the RSA 354-A claim). Plaintiff objects to both
motions, except for defendant's motion for judgment on the
pleadings as to Count IV.
Background
The background of this case can be very briefly summarized
as follows.2 Rivier hired Nedder as a part-time faculty member
in the religious studies department in 1988. Affidavit of Dr.
Jacqueline C. Landry ¶ 3 (attached to defendant's motion).
Nedder continued teaching on a part-time basis until 1992, at
which point Rivier hired her as a full-time assistant professor
of religious studies, later renewing her contract for the 1993-94
and 1994-95 academic years. Id. ¶ 4. In August 1994 Nedder
1 Rivier has moved for permission to file a supplemental memorandum of law in support of its summary judgment argument. Such motion (document 26) is herewith granted, over plaintiff's objection, and has been considered along with the other pleadings before the court. 2 A more complete statement of the evidence produced by the parties at the hearing on plaintiff's motion for preliminary injunction is contained in the court's August 14, 1995, order denying the motion. See Nedder, supra, 908 F. Supp. at 70-85.
2 received a letter signed by both Father Gerald Murphy, a
department chair, and Dr. Landry, a faculty dean, stating that
Rivier would not renew Nedder's contract for the 1995-96 academic
year. Id. ¶ 6.
Nedder is five feet six inches tall, and at all times
relevant to this case she weighed approximately 375 pounds.
Complaint ¶ 1. Her physician opines, among other things, that
Nedder is disabled because she is unable to walk farther than 500
yards without becoming breathless and tired, and because she
feels "like she is doing something" when carrying out some of her
daily activities. Deposition of Renee Jacobs, M.D., at 27-28
(attached to plaintiff's objection).
The evidence will be further elaborated upon during the
course of the court's discussion below.
Discussion I. The Motion for Summary Judgment
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. Co. of Am., 74 F.3d 323, 327 (1st Cir. 1996).
Since the purpose of summary judgment is issue finding, not issue
3 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. 242, 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]
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 256), cert. denied, ___ U.S. ___, 114 S. Ct.
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
4 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. The ADA Claim
An ADA plaintiff may use circumstantial evidence to prove
his or her case by employing the familiar burden-shifting scheme
that originated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792
(1973).3 See Braverman v. Penobscot Shoe Co., 859 F. Supp. 596,
603 (D. Me. 1994); accord Ennis v. National Ass'n of Business and
Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir. 1995).
Under McDonnell-Douglas, "plaintiffs bear the initial burden
of establishing a prima facie case of discrimination." Udo v.
Tomes, 54 F.3d 9, 12 (1st Cir. 1995). "Once the plaintiff
establishes a prima facie case, a presumption arises that the
employer unlawfully discriminated against the plaintiff." Id. at 12. The employer must then rebut the presumption of
3 Although Nedder claims to have direct evidence of disability discrimination, the court has not found sufficient evidence on the record. Direct evidence of discrimination is "that evidence which, if believed, 'establishes discriminatory intent or motive without inference or presumption.'" Lewis v. Zilog, Inc., 908 F. Supp. 931, 951 (N.D. Ga. 1995) (quoting Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226 (11th Cir. 1993)). "Only the most blatant remarks whose intent could only be to discriminate constitute direct evidence." Id.
5 discrimination by producing evidence "that the adverse employment
actions were taken for a 'legitimate, non-discriminatory
reason.'" Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 507 (1993) (further quotation omitted)).4
The court has previously set forth that Nedder must show the
following elements in order to make out a prima facie case of
employment discrimination under the ADA: "(1) she was 'disabled'
as that term is defined by the ADA; (2) she was qualified, with
or without accommodation, to do her job as an assistant professor
of religious studies; (3) she was discharged; and (4) she was
replaced by a non-disabled person." Nedder, supra, 908 F. Supp.
at 74 (citing Sherman v. Optical Imaging Sys., Inc., 843 F. Supp.
1168, 1181 (E.D. Mich. 1994)). Defendant's motion for summary
judgment focuses solely on whether plaintiff has produced
evidence sufficient to show that she is disabled under the ADA.
4 Once the employer meets such burden, "the plaintiff must introduce sufficient evidence to support two findings: (1) that the employer's stated reason for laying off the plaintiff is a pretext, and (2) that the true reason is discriminatory." Udo, supra, 54 F.3d at 13 (citing Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1958 (1995)). Although the McDonnell-Douglas framework shifts the burdens of production between the parties, "'the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Hicks, supra, 509 U.S. at 507 (quoting McDonnell-Douglas, supra, 450 U.S. at 253).
6 Therefore, the court's inquiry will be limited to the first
element of Nedder's prima facie case--whether she was disabled.
Title I of the ADA prohibits, inter alia, discrimination
against "a qualified individual with a disability" based on such
person's disability regarding a term or condition of employment.
42 U.S.C. § 12112(a).
Under the ADA,
The term "disability" means with respect to an individual-- (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 an impairment.
42 U.S.C. § 12102(2).5
An ADA plaintiff "must meet the threshold burden of
establishing that [s]he is 'disabled' within the meaning of the
statute." Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1453-54 (7th Cir. 1995) (citations omitted). "The inquiry is an
individualized one, and must be determined on a case-by-case
basis." Id. at 1454 (citations omitted). In this case, the
plaintiff asserts that she is disabled in fact under definition
5 "Disability" as defined under the ADA is substantially equivalent to "disability" as defined under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797 (1988 & Supp. 1995), and the court will look to case law interpreting both statutes when analyzing plaintiff's evidence of "disability". See Nedder, supra, 908 F. Supp. at 74 n.7.
7 (A). In the alternative, she asserts that Rivier regarded her as
disabled under definition (C).
1. Disability in Fact
To establish a disability in fact, plaintiff must show three
elements: (1) a physical or mental impairment (2) substantially
limiting (3) a major life activity. 42 U.S.C. § 12102(2).
Rivier assumes for purposes of its motion that plaintiff's morbid
obesity is an impairment for purposes of the Act.6 The plaintiff
avers that her obesity substantially limits her ability to walk
and to work, both of which are characterized as "major life
6 The EEOC, in regulations promulgated to implement the ADA, defines "physical or mental impairment" as:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, [inter alia]; or (2) Any mental or psychological disorder . . . .
29 C.F.R. § 1630.2(h) (1995).
Ordinarily plaintiff would have to show that her obesity is of physiological origin and that it impairs a body system. Cf. Cook v. Rhode Island Dep't of Mental Health, Retardation & Hosps., 10 F.3d 17, 23 (1st Cir. 1993) (holding that jury could plausibly have found that plaintiff had a physical impairment based on her own testimony and the testimony of an expert, who stated that her morbid obesity was the result of a physiological disorder).
8 activities" under the EEOC regulations. See 29 C.F.R. §
1630.2(i). Thus, the issue before the court with respect to
Nedder's actual disability claim concerns only the "substantial
limitation" element.
Plaintiff's primary argument is that she is substantially
limited in the major life activity of walking.7 The court has
already had occasion to examine in great detail what constitutes
a substantial limitation on the major life activity of walking,
and incorporates by reference said discussion. See Nedder,
supra, 908 F. Supp. at 75-76. To briefly summarize, a
substantial impairment is established where the individual is
"'either unable to perform, or significantly restricted as to the
condition, manner or duration under which the individual can
perform, a major life activity as compared to an average person
in the general population.'" Id. at 75 (quoting Roth, supra, 57 F.3d at 1454 n.12; 29 C.F.R. § 1630(j)(1)(ii)). Relevant to the
consideration is the nature and severity of the impairment, its
7 This court has previously observed that obesity alone "does not constitute a disabling impairment" under the ADA. Nedder, supra, 908 F. Supp. at 75-76 (collecting cases). Instead, plaintiff's burden is to show a significant impact on a major life activity, such as her ability to walk. Obesity is considered to be a disabling impairment only under rare circumstances. See 29 C.F.R. pt. 1630, app. § 1630.2(j).
9 expected duration, and its expected permanent long-term impact.
Id.
The regulations give the following examples to illustrate
when an individual's ability to walk might be substantially
limited:
[A]n individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking. An individual who uses artificial legs would likewise be substantially limited in the major life activity of walking because the individual is unable to walk without the aid of prosthetic devices.
29 C.F.R. app. § 1630.2(j).
As a general rule, "both the regulations and the [EEOC
compliance] manual make clear that comparatively moderate
restrictions on the ability to walk are not disabilities." Kelly
v. Drexel Univ., ___ F.3d ___, ___, 1996 WL 479503, at *4 (3d
Cir. 1996). In Kelly a plaintiff suffering from severe post- traumatic degenerative joint disease of the right hip stated that
he could not walk more than a mile or so, could not jog, and had
to pace himself slowly when climbing stairs. In addition,
plaintiff's treating physician opined that plaintiff had "great
difficulty in walking around." Id. at *3. In affirming the
district court's grant of summary judgment, the appeals court
found that while it was difficult to draw "bright line"
10 distinctions, the plaintiff was not substantially limited in his
ability to walk. Id. at *7.
Similarly, in Stone v. Entergy Servs., No. 94-3669, 1995 WL
368473 (E.D. La. June 20, 1995), a plaintiff with partial
paralysis, muscle weakness, and uneven legs as residual effects
of polio testified that he had limited endurance, experienced
difficulty climbing stairs, and walked significantly slower than
the average person. Despite this and other evidence, the court
concluded that plaintiff's ability to walk was not substantially
limited. Id. at *3-4; cf. Graver v. National Eng'g Co., No. 94 C
1228, 1995 WL 443944 (N.D. Ill. July 25, 1995) (plaintiff
suffering from arthritis in ankles causing significant pain when
walking and pronounced limp was not disabled).
To support its position that Nedder is not substantially
limited in her ability to walk, Rivier submits the following
portion of Nedder's deposition.
Q: Okay. And aside from the endurance factor that you've described, are there any other difficulties with walking? A: No. . . . . Q. Okay. And does that -- if you pace yourself, are you able to walk as far as you need to carry on your daily life? A. Yes.
Deposition of Mary Nedder at 27, 110.
11 Rivier also relies on testimony from the preliminary
injunction hearing of one of Nedder's colleagues who stated that
although Nedder walks more slowly than he does, he had once
witnessed Nedder walk several blocks on a very hot and humid
evening. See Testimony of Prof. Leo Sandy, Hearing Transcript,
July 20, 1995, at 26. In addition, Rivier submits the testimony
of Nedder's physician, who opined that Nedder is capable of
walking 500 yards comfortably, depending on the temperature.
Jacobs Deposition, supra, at 26.
Plaintiff responds with additional testimony of Dr. Jacobs.
Q: Does Ms. Nedder suffer from a disability, Doctor? A: Where ambulation is concerned, definitely. Q: Can you give me a -- in legal cases lawyers and doctors sometimes talk about percentages -- A: Um-hmm. Q: -- of disability A: Um-hmm. . . . . Q: Okay. Can you tell me what percentage of disability Ms. Nedder suffers from? A: I would ballpark -- I would guess, if she's going to try to do her work, her housework, go shopping, go in and out of a car, my opinion would be at least a 50 percent. Q: And are you basing that solely on the walking or -- A: Uhm, getting in and out of a car; anything that involves activity. Bending over to tie your shoes. Q: But she's able to complete those tasks? A: Right. She's able to complete that, certainly, but it is with exertion and with feeling, uhm, that she is doing something.
12 Whereas, if you or I would bend over to tie our shoes, we wouldn't think anything about it.
Jacobs Deposition, supra, at 27-28.
Nedder also maintains that three incidents occurring during
her employment at Rivier show that her obesity substantially
limited her ability to walk: (1) she was unable to complete a
procession during a convocation ceremony in the fall of 1993; (2)
she could not fully participate in the 1994 commencement
exercises because she was concerned that she would not be able to
walk the distances required in the exercises; and (3) she was
unable to use her office during a two-week period in February
1994 in the aftermath of a fall on the ice outside of the office.
As to the third incident, she testified that she had difficulty
in getting up after the fall because of her weight, and that her
fear of another falling incident caused her to be unable to go to
her office for two weeks.8 Even when the evidence is considered in a light most amiable
to Nedder, her ability to walk is, at most, moderately impaired.
8 The court in its August 14, 1995, order dealt extensively with each of these incidents in the context of the likelihood of plaintiff's success on the merits of her case. In the preliminary injunction context, these three events were cited as evidence of Rivier's alleged discriminatory animus toward plaintiff. See Nedder, supra, 908 F. Supp. at 80-81. As these events are now raised in the context of summary judgment as evidence of plaintiff's actual disability, the court will analyze these incidents anew.
13 Her own testimony, and that of her physician, indicates she can
walk, albeit with considerable exertion and not as swiftly as the
average person. In addition, she is capable of walking for more
than "very brief periods of time," and has not argued that she
needs an assistive device such as a cane or crutch to help her
walk.
Moreover, none of the three incidents create a genuine issue
as to whether Nedder is substantially limited in her ability to
walk, as they show, at most, that Nedder was only moderately
impaired. For example, Nedder's refusal to use her office in the
winter of 1994 because she feared she might fall on the icy
ground does not present an issue of material fact. Plaintiff's
testimony about the incident reveals that she does not usually
walk on ice because she does not "have good mobility on ice."
Hearing Transcript, July 25, 1995, at 19-20. Nedder is no
different in this respect than the average person. See 29 C.F.R. § 1630, app. § 1630.2(j) ("An individual is not substantially
limited in a major life activity if the limitation . . . does not
amount to a significant restriction when compared with the
abilities of the average person.").
Accordingly, the court concludes that Nedder has failed to
present sufficient evidence to show that she is disabled with
respect to the activity of walking.
14 The court must next decide whether the plaintiff has
produced evidence from which a trier of fact could find that she
is disabled in her ability to work.9
To be considered substantially limited in the major life
activity of working, an ADA plaintiff must present evidence of
being "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." 29 C.F.R. § 1630.2(j)(3)(i). However, "[t]he
inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working."
Id.10
9 The appendix to 29 C.F.R. § 1630 provides, "If an individual is not substantially limited with respect to any other major life activity, the individual's ability to perform the major life activity of working should be considered." 10 Supplementing the factors listed in 29 C.F.R. § 1630(j)(2), the following
may be considered in determining whether an individual is substantially limited in the major life activity of "working": (A) The geographical area to which the individual has reasonable access; (B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
15 With these considerations in mind, the court turns to
whether Nedder has produced evidence sufficient to support a
finding that her obesity significantly restricts her ability to
work.
At the hearing, plaintiff testified as follows:
Q: Prior to your employment at Rivier College part-time, was weight ever an issue for you in your employment? A: No. Q: Did your weight ever interfere with you[r] being able to carry out your job? A: I always had to make accommodation, but once I made the accommodation, I could do my job. Q: You were always able to do your job? A: Yes. Q: And you were able to do all the duties of your job at Rivier College without any requested accommodation from the college? A: Other than the walking in the processions, yes.
Hearing Transcript, July 25, 1995, at 71-72. In addition, when
questioned by the court, plaintiff stated that her weight had
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).
29 C.F.R. § 1630.2(j)(3)(ii).
16 never interfered with her preparation and actual teaching of her
classes. Id. at 76-77.
Plaintiff's undisputed testimony is that she was able to
perform her job. Although plaintiff's obesity may have affected
her work on two occasions when she could not walk in faculty
processions, such evidence shows at most that Nedder was unable
to perform one aspect of her job. Since she retained the ability
to perform her work in general, plaintiff has failed to show that
her obesity substantially limited her ability to work. See
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995)
("[T]he inability to perform one aspect of a job while retaining
the ability to perform the work in general does not amount to
substantial limitation of the activity of working.") (citation
omitted). The court therefore finds and herewith rules that the
plaintiff has failed to produce evidence sufficient to show that
she is substantially limited with respect to working.
Given that plaintiff has not submitted sufficient evidence
to support that she was actually disabled (with respect to either
walking or working), the court now addresses plaintiff's second
theory of disability under the ADA: that she was regarded by
Rivier College as suffering from a disability.
17 2. Perceived Disability
Nedder argues in the alternative that even if she is not
actually disabled, she meets the statutory definition of
disability under the ADA because Rivier regarded her as having a
substantially limiting impairment. See 42 U.S.C. § 12102(2)(C).
Under the EEOC regulations, "an individual who has an impairment
that is not substantially limiting (or has no impairment at all)
is nevertheless 'disabled' if he is treated by the employer as
having an impairment that does substantially limit major life
activities." Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir.
1996); 29 C.F.R. § 1630.2(l)(1). Thus, an individual who is
otherwise not disabled may be handicapped by another's "myths,
fears and stereotypes" about disabilities. 29 C.F.R. § 1630,
app. § 1630.2(l).
Given that the court has already found that Nedder's obesity
is not a substantial impairment, Nedder must do more than merely
show that her employer perceived her condition. Instead, "the
perceived impairment must substantially limit a major life
activity." Marschand v. Norfolk & Western Ry., 876 F. Supp. 1528, 1540 (N.D. Ind. 1995), aff'd on other grounds, 81 F.3d 714
(7th Cir. 1996); cf. Aucutt v. Six Flags Over Mid-America, Inc.,
85 F.3d 1311, 1319-20 (8th Cir. 1996) (employer who simply
18 perceived otherwise nondisabling medical problems did not regard
plaintiff as disabled).
In addition, with respect to working, an employer does not
regard an employee as disabled because "it believes she is
incapable of performing a particular job." Ellison v. Software
Spectrum, Inc., 85 F.3d 187, 192 (5th Cir. 1996). Rather, the
employer must perceive "'the employee's impairment to foreclose
generally the type of employment involved.'" Id. at 192 (quoting
Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986)).
The following excerpt from this court's previous order
summarizes some of the evidence presented at the injunction
hearing relevant to what Sister Jeanne Perreault, president of
Rivier, thought about overweight people:11
Camille MacKnight [an employee of Rivier], attended [a] faculty meeting and recalled . . . that Sister Jeanne spoke of the need "to educate the whole body, the mind, the soul and the body." Ms. MacKnight further testified that the statement about the body, as she heard it, "was that you may need to exercise or lose weight," and when Ms. MacKnight heard this she thought . . . about Mary Nedder. Ms. MacKnight also recalled Sister Jeanne's making similar comments at a subsequent staff meeting and adding that faculty and staff must set examples on campus for students. Patrice O'Donnell, Associate Professor of Psychology and Chair of Rivier's Behavioral Sciences Department, was also present at the . . .
11 This evidence was previously considered in the context of a separate issue.
19 faculty meeting. Professor O'Donnell testified that Sister Jeanne related a story from several years prior about a graduation speaker named Commodore Hopper who had commented to her that "there are a lot of fat people on this campus." According to Professor O'Donnell, Sister Jeanne used this story anecdotally and went on to discuss the importance of educating the whole person and of faculty and staff being role models both in and out of the classroom. Brother Paul Demers, Rivier's chaplain and campus minister, also attended the faculty meeting and recalled in his testimony that Sister Jeanne's comments were made in the context of the importance of taking "a holistic approach" to the education of one's mind, spirit, heart, and body. Brother Paul further testified that he "think[s] there was a statement made by Sister Jeanne about being careful of one's weight, being overweight in a sense is an indication of lack of discipline and is or can be perceived in a negative way, and we owe [it] to ourselves to attend to all aspects of our being--body, mind, and spirit."
Nedder, supra, 908 F. Supp. at 82 (emphasis added).
In addition, Nedder offered testimony at the preliminary
injunction hearing about a meeting between her and Dr. Landry.
When she mentioned to Dr. Landry that she had gained a few extra
pounds, Landry encouraged her in her attempt to lose it. Hearing
Transcript, July 25, 1995, at 16. Dr. Landry then told plaintiff
she was thinking about sending over an article sent to her by
Sister Jeanne which "talked about the traditional . . . student's
response to overweight faculty, and that in this article it said
that . . . traditionally students perceived overweight faculty as
being less disciplined and less intelligent." Id. Dr. Landry
20 testified that the article was a preliminary report which
concluded that "traditionally students react negatively to obese
teachers." Id. at 50-51.
On the basis of the foregoing, a trier of fact could find
that Sister Jeanne and Dr. Landry, each of whom participated in
the decision to not renew Nedder's contract,12 perceived
plaintiff's obesity as substantially limiting her ability to
teach. Specifically, a jury could find that Sister Jeanne and
Dr. Landry believed that obese teachers are perceived by students
as less disciplined and less intelligent and as making unsuitable
role models. A jury also could find that Sister Jeanne and Dr.
Landry may have regarded Nedder as substantially limited in her
ability to teach, either in the narrow class of jobs of a
religious studies professor or in the broader range of any
teaching position. Accordingly, viewing the evidence in a light
most favorable to Nedder, as the court must, the court finds that
a genuine issue of material fact exists as to whether Rivier,
because of arcane stereotyping, perceived Nedder to be
substantially limited in her ability to work. Cf. Katz, supra,
12 Perreault's hearing testimony indicates that Father Murphy, as chair of Nedder's department, initiated the decision not to renew her contract. This recommendation was approved by Dr. Landry, vice president for academic affairs, and then by Sister Jeanne, president of the college. Hearing Transcript, July 25, 1995, at 14.
21 87 F.3d at 32-33 (perceived disability claim under ADA survives
summary judgment where employer who had knowledge of heart
condition observed plaintiff's inability to climb stairs and also
knew plaintiff would initially have to work at limited capacity);
Cook, supra note 5, 10 F.3d at 25 (employer's belief that
plaintiff's morbid obesity would interfere with her ability to
work was, for summary judgment purposes, sufficient to sustain
"regarded as" claim);13 Holihan v. Lucky Stores, Inc., 87 F.3d
362, 366 (9th Cir. 1996) (entry of summary judgment improper
where employer discussed employee's aberrant behavior with him,
asked him if he had any "problems", and had knowledge of
diagnosis of depression).
To summarize, the court finds that plaintiff has failed to
present evidence sufficient to prove that she is disabled in fact
under the ADA. Therefore, she has failed to make out a prima
facie case of employment discrimination on the basis of an actual
disability. Genuine issues of material fact exist, however, as
to Nedder's claim that she was regarded as disabled in her
ability to work as a teacher. Accordingly, defendant Rivier
College's motion for summary judgment is granted with respect to
13 In Cook, the court was applying section 504 of the Rehabilitation Act of 1973, which is interpreted in nearly the same fashion as the ADA. See Katz, supra, 87 F.3d at 31.
22 Nedder's actual disability claim under 42 U.S.C. § 12102(2)(A),
and denied with respect to Nedder's perceived disability claim
under 42 U.S.C. § 12102(2)(C).
II. Motion for Judgment on the Pleadings
In addition to moving for summary judgment on plaintiff's
ADA claim, Rivier moves, pursuant to Rule 12(c), Fed. R. Civ. P.,
for judgment on the pleadings on Counts III (wrongful discharge)
and IV (RSA 354-A) of the complaint. Nedder objects only as to
Count III.14
A. Judgment on the Pleadings Standard
Rule 12(c), Fed. R. Civ. P., provides that "[a]fter the
pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings." "The
standard for evaluating a Rule 12(c) motion for judgment on the
pleadings is essentially the same as the standard for evaluating
a Rule 12(b)(6) motion." Metromedia Steakhouses Co. v. Resco
14 Plaintiff raises no objection to Rivier's motion for judgment on the pleadings on Count IV, the claim under RSA 354-A. This court has held that the plain language of RSA 354-A reveals that the statute does not create a private right of action. Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 120 (D.N.H. 1995). Accordingly, Count IV of plaintiff's complaint is dismissed.
23 Management, Inc., 168 B.R. 483, 485 (D.N.H. 1994) (citation
omitted). "In reviewing the defendant's motion for judgment on
the pleadings . . . the court must accept all of the factual
averments contained in the complaint as true, and draw every
reasonable inference helpful to the plaintiff's cause." Sinclair
v. Brill, 815 F. Supp. 44, 46 (D.N.H. 1993) (citations omitted).
Judgment on the pleadings will not be granted, however, "'"unless
it appears beyond doubt that the plaintiff can prove no set of
facts in support of [her] claim which would entitle [her] to
relief."'" Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Cir. 1988) (quoting George C. Frey Ready-Mixed Concrete, Inc. v.
Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977)
(quoting Conley v. Gibson, 355 U.S. 42, 45-46 (1957))).
B. Plaintiff's Wrongful Discharge Claim Defendant challenges plaintiff's claim that she was
wrongfully discharged under New Hampshire law on the basis of her
disability.
To bring a valid wrongful discharge claim under New
Hampshire law, "the plaintiff must show: 'one, that the employer
terminated the employment out of bad faith, malice or
retaliation; and two, that the employer terminated the employment
because the employee performed acts which public policy would
24 encourage or because he refused to perform acts which public
policy would condemn.'" Wenners v. Great State Beverages, Inc.,
140 N.H. 100, 103, 663 A.2d 623, 625 (1995), cert. denied, ___
U.S. ___, 116 S. Ct. 926 (1996) (quoting Short v. School Admin.
Unit No. 16, 136 N.H. 76, 84, 612 A.2d 364, 370 (1992)).
However, "a plaintiff may not pursue a common law remedy
where the legislature intended to replace it with a statutory
cause of action." Id. (citing Howard v. Dorr Woolen Co., 120
N.H. 295, 297, 414 A.2d 1273, 1274 (1980); Thompson v. Forest,
136 N.H. 215, 216, 614 A.2d 1064, 1065 (1992)).
Following Wenners, the First Circuit has held that a
wrongful discharge claim based on pregnancy discrimination was
precluded because Title VII "not only codifies the policy against
gender-based discrimination . . . but also creates a private
right of action to remedy violations of that policy and limns a
mature procedure for pursuing such an action." Smith v. F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996). The situation in
this case is closely analogous. The ADA codifies the public
policy against discrimination on the basis of disability, creates
a private right of action to remedy violations of that policy,
and limns a procedure for pursuing such action. Therefore, the
court concludes that Nedder's wrongful discharge claim is
precluded because of the availability of a remedy under the ADA.
25 Accordingly, defendant Rivier College's motion for judgment on
the pleadings with respect to Count III is granted.
Conclusion
For the reasons set forth herein, (1) defendant Rivier
College's motion to file supplemental memorandum of law (document
26) is granted; (2) defendant Rivier College's motion for summary
judgment on Count I (document 17) is granted with respect to
plaintiff's claim that she is disabled in fact under the ADA and
denied as to plaintiff's claim that she was regarded as disabled
by Rivier College; and (3) defendant Rivier College's motion for
judgment on the pleadings (document 18) is granted as to Counts
III and IV.
SO ORDERED.
____________________________ Shane Devine, Senior Judge United States District Court
September 3, 1996
cc: Paul McEachern, Esq. Daniel P. Schwarz, Esq.