Parker v. Accellent

2014 DNH 237

• Court: District Court, D. New Hampshire
• Decided: November 13, 2014
• Docket: 13-cv-053-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Deborah Parker

v. Civil No. 13-cv-053-JL Opinion No. 2014 DNH 237 Accellent, Inc. and Portlyn LLC

MEMORANDUM ORDER

This case might be called “Who moved my table?” in homage to

the popular self-help book Who Moved My Cheese?, a parable about

characters who struggle to survive in the maze where they live

after suddenly discovering that the cheese on which they have

come to rely is missing from its usual place.1 The events giving

rise to this case began when the plaintiff’s employers,

manufacturing companies known as Accellent, Inc. and Portlyn,

LLC,2 removed an adjustable table from her work station and

replaced it with a stationary one.

The plaintiff, Deborah Parker, claims that she needed the

adjustable table as an accommodation for her fibromyalgia and,

after she discovered the table had been replaced, complained to

her supervisor and her foreman--cursing in response to her

1 Spencer Johnson, Who Moved My Cheese? 25-34 (2002). 2 Since it makes no difference to the analysis here, the court will collectively refer to the defendants as “Accellent.” foreman’s directive that she get back to work. One week later,

Accellent proposed transferring Parker to a different

manufacturing line where all of the tables were adjustable, but

Parker returned to work at the stationary table for two more days

and then, after taking a brief period of approved leave, quit.

Parker has since brought claims against Accellent for:

(A) discriminating against her due to her disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and its state-law analog, N.H. Rev. Stat. Ann. §§ 354-A:7, I, VII(a), by

(1) subjecting her to a hostile work environment due to her fibromyalgia,

(2) failing to accommodate that alleged disability, and

(3) constructively discharging her;

(B) retaliating against her because she requested a reasonable accommodation, in further violation of the ADA, 42 U.S.C. § 12203(a), and state law, N.H. Rev. Stat. Ann. § 354-A:19, and

(C) also retaliating against her because she had taken leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(1).

This court has jurisdiction under 28 U.S.C. §§ 1331 (federal

question) and 1367 (supplemental jurisdiction).

Accellent has moved for summary judgment. See Fed. R. Civ.

P. 56. Accellent argues, among other things, that there is no

genuine dispute that

(A) it did not discriminate against Parker on account of her disability because

2 (1) any disability-based harassment never reached the level of an actionable hostile environment,

(2) Accellent proposed a reasonable accommodation for Parker’s claimed disability as soon as the company learned of it, and

(3) as a result, Accellent did not subject her to a constructive discharge; and

(B)-(C) Accellent’s allegedly retaliatory acts were not motivated by her disability or her exercise of her FMLA rights.

The court agrees. Taking the admissible evidence of record

in the light most favorable to Parker, the earliest Accellent

knew she needed an adjustable table as an accommodation for her

fibromyalgia was the day they removed the adjustable table--and,

within a week, Accellent had proposed transferring her to a

different manufacturing line, where all of the work tables were

adjustable. After Parker nevertheless continued working on the

same manufacturing line for two more days, she availed herself of

a brief period of FMLA leave, then, after ignoring Accellent’s

invitation to formally request an accommodation, announced she

was quitting. Based on these undisputed facts, no rational jury

could find that Accellent discriminated against Parker due to her

claimed disability, including by failing to reasonably

accommodate it. Nor could a rational jury find that Accellent

retaliated against Parker for requesting the accommodation, or

for taking FMLA leave. Following oral argument, then, the court

3 grants Accellent’s motion for summary judgment, for the reasons

detailed below.

I. Applicable legal standard

Summary judgment is appropriate where “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if it could reasonably be

resolved in either party’s favor at trial by a rational

fact-finder, and “material” if it could sway the outcome under

applicable law. See Estrada v. Rhode Island, 594 F.3d 56, 62

(1st Cir. 2010). In deciding summary judgment, the court “views

all facts and draws all reasonable inferences in the light most

favorable to the non-moving” party. Id. The following

background facts are set forth in accordance with that standard.3

3 Accellent faults Parker for her response to their statement of material facts, arguing that, because its format and substance “leave it unclear as to whether [she] disputes” Accellent’s stated facts, the court should deem all of those facts admitted under L.R. 56.1(b). As this court has explained, though, this rule “does not envision the non-movant’s version of facts as a response to the movant’s version; the rule requires only that the opposition memorandum ‘incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial.’” Grivois v. Wentworth-Douglas Hosp., 2014 DNH 017, 5 n.1 (quoting former L.R. 7.1(b)(2)). Despite its unorthodoxies, Parker’s factual statement complies with this rule, so the court has considered her stated facts in its ruling, insofar as they are supported by admissible evidence of record.

4 II. Background

In 1995, Parker began working Accellent, which manufactures

medical devices at a facility in Laconia, in the Lakes Region of

New Hampshire. The facility operates in a “cellular

manufacturing” environment, where each “cell” is dedicated to the

manufacture of a particular product assembled as it moves through

different stations along a production line. While Parker briefly

held a supervisory role as a “cell coordinator,” she spent most

of her career with Accellent as an assembler, working at

different stations within the so-called “flexible” line, and

also, from time to time, on the “speciality” and “rigid” lines.

In 1997, Parker notified Accellent that she had

fibromyalgia, a condition marked by overall pain and fatigue

throughout the body. More than a decade later, in March 2008,

Parker sought FMLA leave as a result of her fibromyalgia,

presenting a form from her health care provider noting that

episodes of incapacitation were likely to occur between 1 and 3

days every month, and that Parker might “not be able to stand

[or] extend [her] head for a regular work day on some days due to

pain and fatigue.” Between then and 2011, Parker took “a handful

of days” of FMLA leave each year for her fibromyalgia, she

recalls, but she has not identified the dates of that leave any

more specifically, by resort to her time records or otherwise.

5 From early February through early April 2011, Parker

accepted a voluntary furlough from Accellent so that she could

care for her adult daughter, who had cancer. (Accellent had

offered FMLA leave to Parker for this purpose, but she declined.)

Parker attests that, when she returned to the workplace,

“harassment” at the hands of her foreman, Linda Edmonds,

“increased.” This alleged harassment took the form of a

statement to Parker in April 2011 that Parker “had no right to

make decisions [on her line] because [she was] out all the time,

[she was] not there enough, [she was] out sick a lot.” Edmonds

also told Parker that she was “too slow” and “need[ed] to speed

[her work] up.”

On Monday, June 6, 2011, Parker arrived at work from another

voluntary furlough to find maintenance workers setting up a

stationary table at her work station, replacing the adjustable

hydraulic table that had been there previously. (The height of

the adjustable table could be changed by pushing a button.) When

Parker asked them if they could return the adjustable table, the

workers explained that they were acting at the direction of

Parker’s supervisor, Larry Weber.

Parker then called Weber. Despite some equivocation at her

deposition as to the substance of this conversation, Parker

states in her affidavit in response to the summary judgment

6 motion that she “asked why he took [her] hydraulic table after

the conversations [she] had with him about it being an

accommodation for [her] fibromyalgia and that [she did] adjust it

during the day,” and that Weber said that he “had forgotten about

that” but “would talk to [] Edmonds and get back to” Parker.4

After not hearing from Weber for about half an hour, Parker

approached Edmonds and asked her to arrange for the return of the

adjustable table, “reminding her that [Parker] needed it as an

accommodation for [her] fibromyalgia,” as she says in her

affidavit. Edmonds “screamed at [Parker] to get [her] butt back

to work, that the tables were not going to be changed and that

[she] needed to get used to it.” Parker acknowledged that, after

she returned to her work station, she said, in the presence of

several of her co-workers, “this is bullshit,” and also “probably

said [] the ‘F’ word a few times.” After a co-worker announced

4 Asked at her deposition whether, during this conversation, she had mentioned her fibromyalgia, Parker responded that she had “mentioned it. They all knew. It’s in the records. [Weber] had been there long enough that [he and Parker] had discussed it at length, [her] daughter’s illness, [her] four herniated discs.” Asked whether, because “these were all things that people knew already,” she “didn’t feel it necessary to mention it [sic] again,” Parker responded that she “probably did,” then that was “sure [she] did,” then, finally, that she was “not sure.” Taking the record in the light most favorable to Parker, however, this court has adopted the version of the conversation set forth in her affidavit.

7 that she was “sick of hearing about the table,” Parker also

uttered what she has described as “a few choice words.”

Later that day, Parker submitted a handwritten “formal

complaint” to “Accellent Management” as a “last attempt to get an

ongoing issue resolved.” The issue, according to the complaint,

was that Parker “and many of the ladies on the flexible line have

been constantly belittled and spoken to in a harassing and

vicious manner by Linda Edmonds,” though the complaint does not

attribute any disability-based animus to this harassment. The

complaint also states that Parker’s “not being on the line for

awhile . . . because of a very sick daughter[,] and [having] that

thrown in my face[,] was the lowest blow.” Parker’s complaint

does not, however, mention any harassment for being out sick--nor

does it mention the adjustable table, whether as an accommodation

for her fibromyalgia or otherwise.

Parker worked at the stationary table throughout that day,

as well as the next day, Tuesday, June 7. But, she says, this

caused her “[f]ibromyalgia and back/neck problems to flare up

with increasing pain,” so she took the rest of the week off as

FMLA leave. When Parker returned to work the following Monday,

June 13, she was summoned to a meeting with Weber and Mary

Morris, where she received a “corrective performance review.”

This review criticized Parker for much of her behavior of June 6,

8 including repeatedly leaving her work station, and yelling and

swearing, to object to the removal of the adjustable table.5 The

review advised Parker that, while she “must accept the decisions

made by management,” she could question a decision by “providing

additional information or opinion no more than twice to any one

individual” and “bringing her concerns to the next person up in

the chain of command if and when she has further questions about

the decision made.”

Parker says that, at this meeting, she “again told [] Morris

and [] Weber that [Parker] needed the adjustable table as an

accommodation for [her] physical conditions” and “reminded

[Weber] that [he and Parker] had discussed it a year ago when

[she] informed him that [she] needed it for fibromyalgia and four

herniated disks.” In response, Weber said he could not remember

any such prior conversation, while Morris asked Parker why she

had not told them that previously.

In any event, at the June 13 meeting, Weber and Morris

offered to have Accellent’s engineering department “help and go

out and see what [Parker’s] problems were and . . . study it and

see what was needed.” Weber and Morris also, as Parker

5 The review also charged that Parker had “removed company property without authorization,” specifically, a production log containing “proprietary information.” At the June 13 meeting, Morris claimed she had seen Parker removing from the log from its proper place. Parker says that this accusation is false.

9 acknowledged in her deposition, “offered [her] a transfer to the

rigid cell,” where all of the tables were adjustable, though that

“wasn’t a definite thing, it was a possibility.” But Weber and

Morris refused to return the adjustable table that Parker had

been using on the flexible manufacturing line. Following the

meeting, Weber told Edmonds that Parker “had stated that she

needed an adjustable table for her fibromyalgia,” and discussed

“mov[ing] [Parker] to another work station and whatever [Edmonds]

needed to do . . . to immediately help her and get her off that

work station” with the stationary table. Edmonds then asked

Parker to move to a different work station, but Parker objected.

So, for the remainder of June 13, and the next day, June 14,

Parker worked at the stationary table on the manufacturing line,

which, she says, caused her “increasing pain” that she attributes

to her fibromyalgia. On June 15, Parker called in sick, marking

the beginning of a period of FMLA leave. One week later, on June

23, Morris sent Parker a letter asking her to provide updated

medical documentation of the condition necessitating her FMLA

leave, and noting that, if Parker did not require FMLA leave but

nevertheless believed that “the limitations of [her] condition

interfere[d] with [her] ability to perform the essential

functions of [her] job,” she could “request a reasonable

accommodation.” The letter further invited Parker to “discuss

10 accommodations” by calling Morris or by submitting Accellent’s

“Request for Reasonable Accommodation” form, which was attached

(and which Parker had never previously submitted).

While Parker acknowledges her receipt of this June 23

letter, she did not respond to it, either by recertifying her

need for FMLA leave or by requesting a reasonable accommodation.

Instead, Parker recalls, “[o]n or about July 10, 2011, [she]

realized that [she] could not return to work on a non-adjustable

table, and was certain that [Accellent] would not return [her]

adjustable table, as this request had been denied on multiple

occasions”--so she notified Accellent of her resignation.

Parker later applied for unemployment benefits. Accellent

opposed Parker’s claim, stating that, among other things, Parker

had received a formal warning for, among other things,

“remov[ing] company information from property [sic] [without]

authorization”--which was indeed one of the allegations set forth

in the performance review presented to Parker on June 13. See

note 5, supra. This statement was contained in an October 24,

2011, e-mail Morris sent in response to a New Hampshire

Employment Security (“NHES”) official, who had asked Morris to

“provide a rebuttal” to a statement submitted by Parker (Parker’s

prior statement to NHES is not in the summary judgment record).

Ultimately, Parker’s claim for unemployment benefits was granted.

11 She later brought this action in Belknap County Superior Court

against Accellent, which duly removed it here. 28 U.S.C. § 1441.

III. Analysis

As noted at the outset, Parker has brought claims against

Accellent for:

(A) discriminating against her due to her disability in violation of the ADA and and its state-law analog by

(1) subjecting her to a hostile work environment due to her fibromyalgia,

(2) failing to reasonably accommodate that alleged disability, and

(3) constructively discharging her due to that alleged disability;

(B) retaliating against her because she complained about that discrimination, in further violation of the ADA and state law; and

(C) also retaliating against her because she had taken leave under the FMLA.

Accellent has moved for summary judgment on all of Parker’s

claims. For the reasons explained below, the motion is granted

in its entirety.

A. Disability discrimination

1. Hostile environment

In relevant part, the ADA prohibits “discriminat[ion]

against a qualified individual on the basis of disability in

12 regard to . . . terms, conditions, and privileges of employment.”

42 U.S.C. 12112(a). New Hampshire law likewise forbids an

employer, “because of the . . . physical or mental disability

. . . of any individual,” to “discriminate against such

individual . . . in terms, conditions or privileges of

employment.” N.H. Rev. Stat. Ann. § 354:A-7, I. The parties

assume, for present purposes, that these prohibitions reach

disability-based harassment in the workplace, so the court will

make the same assumption. See Quiles-Quiles v. Henderson, 439

F.3d 1, 4 n.1 (1st Cir. 2006) (“Although we have not had occasion

to evaluate disability harassment as a viable theory of recovery,

we have assumed that it is viable.”); cf. Madeja v. MPB Corp.,

149 N.H. 371, 378 (2003) (relying on cases interpreting federal

employment discrimination law to aid interpretation of N.H. Rev.

Stat. Ann. § 354-A).

To prevail on a claim of disability-based workplace

harassment, Parker must prove that (1) she has a disability,

(2) she was subjected to a hostile environment, and (3) the

hostility was directed at her because of her disability.

Quiles-Quiles, 439 F.3d at 5. In moving for summary judgment,

Accellent argues that Parker lacks evidence for a rational jury

to find in her favor on any of these elements. Because the court

agrees that no rational jury could find that the alleged

13 harassment, to the extent it was based on Parker’s claimed

disability, rose to the level of a hostile environment, the court

need not and does not decide whether a rational jury could find

that she was disabled in the first place (instead, for purposes

of this order, the court has simply assumed Parker is disabled).

The record, taken in the light most favorable to Parker,

shows that, starting in April 2011, Edmonds “ma[de] comments [to

Parker] like, ‘You’re too slow’ or ‘You need to speed it up.’”6

But these comments, on their face, were merely criticisms of

Parker’s work performance--none of them referred to her claimed

disability, even obliquely. Nor is there any evidence that

Edmonds singled Parker out for this kind of criticism based on

her claimed disability--to the contrary, when she filed her

complaint, Parker alleged that not just she, but “many of the

ladies on the flexible line” had been “spoken to in a harassing

and vicious manner” by Edmonds. On this record, no rational jury

could find that Edmonds subjected Parker to this criticism based

6 Parker seems to suggest that because, on her version of events, “harassment by Ms. Edmonds increased” after Parker returned from her voluntary furlough in April 2011, a jury could find a link between the alleged harassment and her claimed disability. But Parker took that furlough to care for her ailing daughter, not because of her disability, and there is no evidence that Edmonds mistakenly believed that Parker had actually been absent due to her own medical condition. So the timing of the alleged harassment vis-a-vis the furlough does not rationally suggest a disability-based animus.

14 on her disability. See Joens v. John Morrell & Co., 354 F.3d

938, 941-42 (8th Cir. 2004) (affirming entry of summary judgment

against hostile environment claim arising out of foreman’s

criticizing plaintiff’s performance, given the “neutral nature of

[foreman’s] complaints” and lack of evidence that foreman treated

plaintiff differently from other employees).

Parker also relies on Edmonds’s statement that Parker “had

no right to make decisions in flexible cell because [she was] out

all the time, [she was] not there enough, [she] was out sick a

lot,” as well as the incident of June 6, when, after Parker

“remind[ed] [Edmonds] that [Parker] needed [the adjustable table]

as an accommodation for [her] fibromyalgia,” Edmonds “screamed at

[Parker] to ‘get [her] butt back to work, that the tables were

not going to be changed and that [she] needed to get used to

it.’” Even assuming that a jury could find that this behavior

was motivated by Parker’s disability, these two incidents are

manifestly insufficient to establish a hostile environment claim.

To prevail on such a claim, a plaintiff must “show that his

‘workplace [was] permeated with discriminatory intimidation,

ridicule, and insult that [was] sufficiently severe or pervasive

to alter the conditions of . . . [his] employment and create an

abusive working environment.’” Quiles-Quiles, 439 F.3d at 7

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

15 Two comments from a supervisor, even if one of them was screamed,

do not meet this standard. See Pomales v. Celulares Telefonica,

Inc., 447 F.3d 79, 83-84 (1st Cir. 2006). The court grants

Accellent’s motion for summary judgment on Parker’s hostile

environment claims.

2. Failure to accommodate

Another form of job discrimination banned by the ADA and its

state-law analog is “not making reasonable accommodations to the

known physical or mental limitations of an otherwise qualified

individual with a disability.” 42 U.S.C. § 12112(b)(5)(A); see

also N.H. Rev. Stat. Ann. § 354-A:7, VII(a) (same).7 But, as the

Court of Appeals has held, “[t]he obligation is on the employee

to provide sufficient information to put the employer on notice

of the need for accommodation,” including “not only notice of a

condition, but of a ‘causal connection between the major life

activity that is limited and the accommodation sought.’” Jones

v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012)

(quoting Barbara Lindemann & Paul Grossman, Employment

7 Given the nearly identical wording of the federal and state statutory requirements for reasonable accommodation in the workplace, and the paucity of New Hampshire case law applying N.H. Rev. Stat. Ann. § 354-A:7, VII(a), this court has relied exclusively on federal case law in considering Parker’s reasonable accommodation claims. See Madeja, 149 N.H. at 378.

16 Discrimination Law ch. 13.VI.D.1, at 880 (4th ed. 2007)). As a

result, “the ADA’s reasonable accommodation requirement usually

does not apply unless triggered by a request from the employee.”

Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001)

(quotation marks omitted).

Accellent argues that there is no trialworthy issue as to

whether, after receiving notice of Parker’s claimed disability,

it promptly proposed a reasonable accommodation, namely,

transferring her to the rigid manufacturing line, where all of

the tables were adjustable. But Parker argues that facts remain

in dispute both as to when she first put Accellent on notice of

her need for a workplace accommodation and as to whether Weber

and Morris offered one after, in her telling, she “reminded” them

of her need for an accommodation at the June 13 meeting. As

explained in detail below, Parker has not come forward with

admissible evidence to dispute any fact material to either of

these issues, with the result that summary judgment must enter

for Accellent on her claims that it failed to accommodate her

alleged disability.

Parker asserts that, prior to the June 13 meeting with Weber

and Morris, she had “repeatedly informed [Accellent] (including

[her] supervisors) she needed the table for her . . . qualified

disability, and they had known for more than a year”

17 (parenthetical omitted). But Parker’s only record support for

this assertion is her affidavit’s account of the June 13 meeting

where, she attests, she “reminded [] Weber that we had discussed

it a year ago when I informed him I needed [the adjustable table]

as an accommodation for my fibromyalgia and four herniated

disks.” A witness’s testimony about her own out-of-court

statement “reminding” another person about a prior event is not

admissible to show that the prior event in fact occurred. See

Fed. R. Evid. 801(c); United States v. Check, 582 F.2d 668, 680-

81 (2d Cir. 1978) (“a witness’s prior statements offered to prove

the truth of the matters asserted therein are not immunized from

the proscriptive effect of the hearsay rule”) (footnote

discussing inapplicable exceptions omitted). For reasons that

are unclear, Parker’s affidavit offers no independent account of

the alleged occasion, one year prior to the June 13 meeting, when

she informed Weber that she needed the adjustable table as an

accommodation for her claimed disability, nor does she identify

any such evidence elsewhere in the record.

Parker’s affidavit further attests that, during the June 6

exchange with Weber that followed the removal of the adjustable

table, she “asked why he took my hydraulic table after the

conversations I had with him about it being an accommodation for

my fibromyalgia” (capitalization omitted). Insofar as this

18 testimony is offered to show that, in fact, Parker and Weber had

previously discussed the adjustable table as an accommodation for

her fibromyalgia, it presents the same problem as Parker’s

testimony as to “reminding” Weber of those prior discussions

during the June 13 meeting. And insofar as Parker offers her

testimony as to the June 6 exchange to show that she had first

requested an adjustable table as accommodation for her claimed

disability by that point--as opposed to June 13, as Accellent

asserts--this dispute is ultimately immaterial to the fate of

Parker’s reasonable accommodation claim.

By Parker’s own account, Weber responded to her telling him,

on June 6, that the adjustable table had been an accommodation

for her fibromyalgia by saying “he had forgotten about that, but

would talk to Ms. Edmonds and get back to me.” Just one week

later, on June 13, Weber and Morris informed Parker that they

would not be returning the adjustable table, but offered that the

company’s engineers could work with Parker on an alternative

solution, and that they also could transfer her to the rigid

manufacturing line, where all of the tables were adjustable.

While Parker states in her affidavit that Morris did not in

fact “offer [her] a position on the rigid line at this time,” she

testified at her deposition that, during the June 13 meeting,

Accellent “had offered [her] a transfer to the rigid cell . . . .

19 That’s was what they had said to [her], that there was a

possibility that [she might] be transferred to the rigid

cell”--though, she later elaborated, “[t]hey didn’t know when it

would take place or if it would take place.” As a result, Parker

asserts in her briefing, she “did not consider this as an offer.”

Putting aside the fact that, as just noted, Parker agreed in her

deposition testimony that Accellent had “offer[ed] [her] a

position on the rigid line,” whether she subjectively viewed her

employer’s raising the possibility of that transfer as an “offer”

is immaterial. Cf. Bellino v. Peters, 530 F.3d 543, 550 (7th

Cir. 2008) (ruling that no genuine issue existed as to whether

employer offered plaintiff an accommodation despite his attempt

to characterize employer’s proposal as a refusal to accommodate).

It is undisputed that, during the June 13 meeting, Weber and

Morris at the least mentioned transferring Parker to the rigid

line, where all of the tables were adjustable, as a potential

accommodation for Parker’s claimed need for such a table (in

addition to proposing that Accellent’s engineers work with Parker

on a different solution). It is likewise undisputed that,

despite Weber’s instructions to Edmonds “to immediately help

[Parker] and get her off that work station” with the stationary

table, Parker objected to Edmonds’s order to move to a different

work station, returning to the stationary table instead.

20 Finally, it is undisputed that, after working at the stationary

table for one more day, Parker never returned to Accellent,

taking a period of FMLA leave and then quitting--without

responding in any way to Morris’s written offer, sent just 10

days after the June 13 meeting, to fill out the company’s

workplace accommodation request form.8

In short, then, Accellent learned that Parker’s condition

allegedly necessitated an adjustable work table on (at the

earliest) June 6, 2011, and by June 13, 2011 had suggested

getting her such a table, either by transferring her to a

different production line or moving her to a different work

station. Rather than pursuing either of these options, Parker

returned to work at the stationary table for less than two days,

then quit because, as she puts it in her affidavit, “I was

certain that they would not return my table as the request had

been denied multiple times.” But, as Accellent points out, “an

8 Despite these undisputed facts, Parker asserts that Accellent “did not participate in the interactive process.” It is true that “[o]nce the employer becomes aware of the disability of an employee, [the] employer is expected to engage in a meaningful dialogue with the employee to find the best means of accommodating that disability.” Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005). Based on the undisputed facts just discussed, no rational jury could find that Accellent failed to do that here. See id.; Enica, 544 F.3d at 339 (“an employer will not be held liable if it makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possessed”) (quotation marks omitted).

21 employer is [not] required to provide an employee with an

accommodation of her choice.” Enica v. Principi, 544 F.3d 328,

342 (1st Cir. 2008).

To the contrary, “[i]f more than one effective reasonable

accommodation is available, the employer may choose among them,

and is not required to provide the employee’s preferred

accommodation.” I Barbara Lindemann et al., Employment

Discrimination Law ch. 13.VI.D.1, at 13-114 (5th ed. 2012)

(citations omitted). Parker does not dispute that moving her to

an adjustable table, either at a different work station or on a

different production line, would have amounted to an effective

reasonable accommodation for her alleged disability--which, after

all, required nothing more than an adjustable table, even on her

view of things. Nor does Parker claim that the one-week delay

between her request for that accommodation and Accellent’s

response itself amounted to a violation of § 12112(b)(5)(A). Cf.

id. at 13-118 & n.522 (noting that “unnecessary delay in

responding to request for reasonable accommodation can [be an]

ADA violation”). As a matter of law, then, Accellent did not

fail to “mak[e] reasonable accommodations” to Parker’s “known

physical or mental limitations” under § 12112(b)(5)(A). See

Godron v. Hillsborough County, 2000 DNH 077, 2000 WL 1459054, at

*2 (D.N.H. Mar. 21, 2000) (Barbadoro, J.) (granting summary

22 judgment for employer who, in response to employee’s request to

be reassigned from night shifts to weekend shifts to accommodate

his alleged disability, expressed its willingness to assign him

temporarily to weekday shifts instead, because “[a]n employee may

not maintain an ADA claim if he rejects a reasonable

accommodation proposed by his employer”).

The same conclusion follows even if, despite the lack of

admissible evidence that Parker requested an accommodation for

her claimed disability at any point prior to June 6, the court

were to assume that, as Parker asserts, she had previously

“informed [Accellent] (including [her] supervisors) she needed

the table for her . . . qualified disability, and they had known

for more than a year.” On this account, Accellent had been

providing Parker with the adjustable table as an accommodation

for her claimed disability until, on June 6, the company replaced

the adjustable table with a stationary one; when Parker

immediately “reminded” Weber of the status of the adjustable

table, he explained that he had forgotten that but would get back

to her; one week later, he proposed that, rather than having the

adjustable table returned to her work station on the flexible

line, Parker could be transferred to the rigid line, where all of

the tables were adjustable.

23 As just discussed, the ADA allows the employer to choose

from among available reasonable accommodations, and “[t]he fact

that [an employer] previously allowed [an employee] to engage in

[an accommodation] does not obligate [it] to continue providing

such an accommodation.” Phelps v. Optima Health, Inc., 251 F.3d

21, 26 (1st Cir. 2001). It follows that, even if Accellent had

previously provided Parker with the adjustable table as an

accommodation, the company would not face liability under the ADA

for removing the table and proposing a different reasonable

accommodation instead. See Tate v. Shineski, 2010 DNH 036, 18-20

(granting summary judgment for employer who had transferred

employee to a different office without moving the special

furniture she had been provided to accommodate her limited

sitting tolerance, because, after the move, the employer had

accommodated her by letting her avoid prolonged sitting instead).

Accellent is entitled to summary judgment on Parker’s claims that

it failed to make a reasonable accommodation for her alleged

disability under both the ADA and its state-law analog.

3. Constructive discharge

For largely the same reasons, Accellent is also entitled to

summary judgment on Parker’s claims that, in violation of the ADA

and its state-law analog, the company constructively discharged

24 her on account of her disability. If motivated by the

plaintiff’s protected status, “a constructive discharge can

ground an employment discrimination claim.” Suarez v. Pueblo

Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000); see also Karch v.

BayBank FSB, 147 N.H. 525, 536 (2002). But “[a] successful

constructive discharge claim requires working conditions so

intolerable that a reasonable person would have felt compelled to

resign . . . . The standard to meet is an objective one, [and]

it cannot be triggered solely by an employee’s subjective

beliefs, no matter how sincerely held.” Gerald v. Univ. of P.R.,

707 F.3d 7, 25 (1st Cir. 2013) (quotation marks omitted); see

also Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248-49 (2006)

(setting forth same standard under New Hampshire law).

In the one sentence of her summary judgment memorandum

addressing her constructive discharge claims (aside from a

lengthy discussion of the facts of Lacasse which does not even

attempt to show how they resemble the facts here), Parker states

that “the repeated denial to offer the [reasonable

accommodation], absent undue business hardship, or another

[reasonable accommodation], could lead a jury to determine [she]

was constructively discharged.” But there were not “repeated

denials,” or even one denial, of an accommodation to Parker.

25 Again, the undisputed facts are that Accellent proposed

moving Parker to the flexible line, where all of the tables were

adjustable, within one week of when she notified the company that

she needed an adjustable table as an accommodation for her

claimed disability, but that, after declining reassignment to a

different work station on the rigid line, she worked for less

than two additional days before taking a brief period of FMLA

leave and then quitting (without responding to the company’s

invitation to fill out the form it used for reasonable

accommodation requests).9 As this court has noted, “‘an employee

who leaves his employment when he has been presented with

legitimate options for continued employment with that employer

. . . is precluded from claiming constructive discharge.’”

Slater v. Town of Exeter, 2009 DNH 029, 17-18 (quoting and adding

ellipse to Lapointe v. United Autoworkers Local 600, 103 F.3d

485, 489 (6th Cir. 1996)).

In light of Parker’s failure to dispute that moving to the

adjustable tables of the rigid line was presented to her, or that

it was a legitimate option, see Part III.A.1.b, supra, her

9 Alternatively, if Parker’s hearsay account of her prior conversations with Weber is accepted, he had accommodated her with the adjustable table for more than a year, then, on the day the table was replaced, told her he had forgotten about that but that he would get back to her--which he did, one week later, when he proposed moving her to the flexible line. Those facts also fail to establish constructive discharge as a matter of law.

26 constructive discharge claim fails as a matter of law, because no

jury could find those “working conditions so intolerable that a

reasonable person would have felt compelled to resign.” Gerald,

707 F.3d at 25 (granting summary judgment against constructive

discharge claim arising out of plaintiff’s transfer to a new

position that merely imposed “some slight . . . inconveniences

and costs”). Accellent is entitled to summary judgment on

Parker’s constructive discharge claims.

B. Retaliation

“The ADA, broadly speaking, makes it illegal for employers

. . . to retaliate against someone because she opposes an act

made unlawful by the ADA.” Collazo-Rosado v. Univ. of P.R., 765

F.3d 86, 92 (1st Cir. 2014) (citing 42 U.S.C. § 12203(a)); see

also N.H. Rev. Stat. Ann. § 354-A:19. To make out a claim of

retaliation under the ADA, “a plaintiff must show (1) that he

engaged in protected conduct, (2) that he suffered an adverse

employment action, and (3) that there was a causal connection

between the protected conduct and the adverse employment action.”

Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35 (1st Cir.

2010); see also Madeja, 149 N.H. at 379 (applying New Hampshire

law). In support of her retaliation claims, Parker identifies,

as her protected conduct, her “multiple requests” for an

27 accommodation for her claimed disability, and, as the adverse

actions, the “final warning for complaining about removal of the

table” and Accellent’s allegedly “false reports” in opposition to

her claim for unemployment benefits.10

Accellent does not question that the ADA protects an

employee’s request that her employer accommodate her disability,

see, e.g., Carreras, 596 F.3d at 35-36, nor that giving an

employee a formal performance warning is an adverse action, see,

e.g., Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir.

2008). (While Accellent argues that its response to Parker’s

unemployment claim was not an adverse action as a matter of law,

the court has simply assumed for the sake of argument that it

could be.) In moving for summary judgment on Parker’s

retaliation, Accellent argues principally that no rational jury

could find a causal connection between her request for a

10 Parker’s submissions also suggested that Accellent had retaliated against her by asking her to recertify her need for FMLA leave in late June 2011, but she clarified at oral argument that this was not part of her retaliation claim. Parker’s summary judgment objection also refers, without elaboration, to “changing [her] RA request outright.” Insofar this is intended to suggest that Accellent mishandled, or improperly denied, Parker’s request for a reasonable accommodation, the court doubts that an employer can be said to have retaliated against an employee for making such a request by denying the request (that conduct would seem to be redressible under the ADA’s reasonable accommodation provision, rather than its anti-retaliation provision) but, in any event, no rational jury could find that Accellent denied Parker an accommodation, as already discussed at length. See Part III.A.2, supra.

28 workplace accommodation and its alleged adverse actions. The

court agrees.

To start with, it bears repeating that Parker has not come

forward with admissible evidence that she asked Accellent for an

accommodation until June 6, 2011, during her call to Weber that

followed her discovery that the adjustable table had been

removed. See Part III.A.2, supra. Parker points to the fact

that, just one week later, Accellent presented her with the

“corrective performance review” which, she asserts, amounted to a

“warning for complaining about removal of the table.” An

examination of the document itself, however, makes clear that it

did not admonish Parker for opposing the removal of the table,

but for how she went about it: she “walked off the job without

notifying [Edmonds] on five separate occasions”; she “took it

upon herself to try to get the adjustable table back by

contacting the maintenance supervisor in charge of moving

facility equipment” rather than “work[ing] through proper

channels”; and “she yelled and swore.” Parker makes much of the

statement in the review that she “must accept the decisions made

by management,” taking this to mean that she should not have

questioned the removal of the table in the first place, but that

statement is immediately followed by advice on how she “may

29 question [such] a decision”--setting forth an orderly procedure

that she clearly had not followed on June 6.

On any defensible reading, then, the “corrective performance

review” does not suggest that Parker was reprimanded for

requesting accommodation for her disability, but rather for

leaving her work station, attempting to circumvent a managerial

decision by enlisting the maintenance staff, and yelling and

swearing (and Parker does not dispute having done any of these

things.) Those actions were not protected by the ADA, even if

they were sincerely motivated by Parker’s desire to see her

disability accommodated. Indeed, “[a]n employer does not violate

[federal workplace retaliation law] when it takes adverse

employment action against an employee to preserve a workplace

environment that is governed by rules, subject to the chain of

command, free of commotion, and conducive to the work of the

enterprise,” because “disruptive or unreasonable protests against

discrimination are not protected activity.” Matima v. Celli, 228

F.3d 68, 79 (2d Cir. 2000) (citing cases).

So Parker cannot premise her retaliation claim on the

“corrective performance review” itself, which, again, simply

criticizes her for her disruptive and inappropriate conduct on

June 6. Nor has she come forward with evidence disputing that

the review accurately depicted her behavior that day, or

30 suggesting that she would not have received the warning but for

the fact that she had, on that same day, requested an

accommodation of her disability.11 See Palmquist v. Shinseki,

689 F.3d 66, 74-77 (1st Cir. 2012) (holding that a claim of

retaliation under the ADA requires the plaintiff to prove that

her protected conduct was the but-for cause of the adverse

action). Finally, there is the fact--undisputed, as already

discussed, see Part III.A.2, supra--that, at the very same

meeting where they provided her with the corrective performance

review, Weber and Morris proposed accommodating Parker’s claimed

disability. On this record, no rational jury could find a causal

connection between Parker’s request for an accommodation--as

distinct from the manner in which she communicated it--and the

corrective performance review.

The same is true of the other allegedly adverse action,

namely, Accellent’s telling NHES that Parker had received the

corrective performance review for, among other things, “removing

proprietary company information from property [sic] [without]

authorization.” That was indeed one of the infractions that

Accellent had cited in the review itself, see note 5, supra, and,

on its face, Morris’s email containing this allegedly retaliatory

11 There is no evidence that, for example, other employees who had engaged in similar misconduct but who had not requested accommodations escaped like discipline.

31 statement merely conveyed the substance of the review--and did so

in response to a request from NHES asking her for a rebuttal to a

statement from Parker. Parker has not come forward with any

evidence even remotely suggesting that, had she not requested an

accommodation for her claimed disability, Morris would not have

included the complained-of statement in her response to NHES,

which is fatal to her claim that the statement was retaliatory.

See Palmquist, 689 F.3d at 77.

Parker’s sole attempt to suggest a causal connection, in

fact, consists of a single sentence in her summary judgment

objection that invokes “temporal proximity,” but more than four

months passed between Parker’s requests for an accommodation

during the June 6 call and the June 13 meeting and Morris’s email

to NHES. Standing alone--which it is in this case--a gap of this

length fails to show a causal connection as a matter of law. See

Calero-Cerezo v. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004)

(“Three and four months have been held insufficient to establish

a causal connection based on temporal proximity.”). Accellent is

entitled to summary judgment on Parker’s claims that it

retaliated against her for requesting an accommodation.

32 C. FMLA retaliation

Finally, Accellent is also entitled to summary judgment on

Parker’s claim that it retaliated against her for taking leave to

which she was entitled under the FMLA. The FMLA expressly makes

it “unlawful for any employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise, any right

provided” by the Act. 29 U.S.C. § 2615(a). Thus, “the FMLA

prohibits retaliation against employees who take FMLA leave.”

Pagan-Colon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8

(1st Cir. 2012). To make out a prima facie case of FMLA

retaliation, an employee must show: (1) she availed herself of a

protected FMLA right; (2) she was adversely affected by an

employment decision; and (3) there was causal connection between

her protected conduct and the adverse employment action.

Carrero-Ojeda v. Autoridad de Energia Electrica, 735 F.3d 711,

719 (1st Cir. 2014).

In moving for summary judgment on Parker’s FMLA claim,

Accellent argues that “it took no adverse employment action

against [her] for taking [FMLA] leave.”12 The court agrees: not

only does the record contain nothing supporting a causal

12 Parker complains that Accellent has “not developed [its] argument” for summary judgment on the FMLA claim, but it is unclear what else needs to be said of an FMLA retaliation claim presented without any evidence as to when the plaintiff even took FMLA leave.

33 connection between Parker’s FMLA leave and any allegedly adverse

action, it does not even identify the dates of the FMLA leave she

took. Indeed, the only record evidence on that point is Parker’s

testimony that, between March 2008 and June 2011, she took “a

handful of days” of FMLA leave each year. Without identifying

the dates of her FMLA leave more specifically, Parker cannot hope

to show a causal connection between that leave and any adverse

employment actions which, by her own account, did not even begin

until the “increased” harassment by Edmonds in April 2011. While

Parker tries to link that behavior to the furlough which

precipitated it, that furlough was, indisputably, not FMLA leave

(Accellent offered it as such, but Parker declined) and therefore

cannot serve as the predicate for an FMLA retaliation claim. See

Speziale v. Bethlehem Area Sch. Dist., 266 F. Supp. 2d 366, 376

(E.D. Pa. 2003) (granting summary judgment against FMLA

retaliation claim where, “despite possibly qualifying for FMLA

leave, [the plaintiff] did not ask for it”). Accellent’s motion

for summary judgment on the FMLA retaliation claim is granted.

34 IV. Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment13 is GRANTED. Parker’s motion for an extension

of time to make her final pre-trial filings13 is DENIED as moot.

The clerk shall enter judgment accordingly and close the case.

SO ORDERED.

__________________________________ Joseph N. Laplante United States District Judge

Dated: November 13, 2014

cc: Janet R. Barringer, Esq. Josiah M. Black, Esq. Leslie H. Johnson, Esq. Thomas incaid McCraw, Jr., Esq. Steven D. Weatherhead, Esq.

13 Document no. 22. 13 Document no. 36.