Pimental v. Dartmouth-Hitchcock CV-01-292-M 12/30/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mary Ann Pimental, Plaintiff
v. Civil No. 01-292-M Opinion No. 2002 DNH 221 Dartmouth-Hitchcock Clinic, Defendant
O R D E R
Mary Ann Pimental brings this action against her former
employer, Dartmouth-Hitchcock Clinic ("DHC"), seeking damages for
alleged violations of the Americans with Disabilities Act, 42
U.S.C. § 12101, et. seg. She also advances state law claims for
breach of contract and wrongful termination, over which she says
the court should exercise supplemental jurisdiction. DHC denies
any wrongdoing and moves for summary judgment as to all of
plaintiff's claims. Plaintiff objects.1
1 Parenthetically, the court notes that plaintiff has exhausted her administrative remedies by filing a charge of discrimination with the EEOC. After conducting an investigation, the EEOC notified her that it was "unable to conclude that the information obtained establishes violations of the statutes," and informed her of her right to sue. Exhibit 1-G to plaintiff's memorandum (document no. 25) . Standard of Review
When ruling on a party's motion for summary judgment, the
court must "view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party's favor." Griqqs-Rvan v. Smith, 904
F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate
when the record reveals "no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). In this context, "a fact is
'material' if it potentially affects the outcome of the suit and
a dispute over it is 'genuine' if the parties' positions on the
issue are supported by conflicting evidence." Intern'1 Ass'n of
Machinists and Aerospace Workers v. Winship Green Nursing Center,
103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
If, however, the non-moving party's "evidence is merely
colorable, or is not significantly probative," no genuine dispute
as to a material fact has been proved, and "summary judgment may
be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986) (citations omitted). As the Court of Appeals for the
First Circuit has observed, "the evidence illustrating the
2 factual controversy cannot be conjectural or problematic; it must
have substance in the sense that it limns differing versions of
the truth which a factfinder must resolve at an ensuing trial.
Conclusory allegations, improbable inferences, and unsupported
speculation will not suffice." Cadle Co. v. Haves, 116 F.3d 957,
960 (1st Cir. 1997) (citations and internal guotation marks
omitted).
Background
Viewed in the light most favorable to plaintiff, the
material facts are as follows. Plaintiff is a licensed
registered nurse who began working at DHC in 1992 in various non
salaried, part-time positions, for between 20 and 24 hours each
week. In April of 1997, she applied for, but did not receive, a
position as the "Operations Manager for Nurse First." In May,
however, she was promoted to the core management team of the
Nurse First Program. At that point, she was made a salaried,
exempt employee, with the expectation that she would work a 35
hour week.
3 In September of 1998, plaintiff was diagnosed with stage III
breast cancer. As a conseguence, she was given approximately
eight months of medical leave, during which time she underwent a
modified radical mastectomy, radiation treatment, and
chemotherapy (subseguently, she also underwent reconstructive
surgery). She does not deny that DHC afforded her all the
medical leave she reguested under the Family Medical Leave Act or
that she was provided with all disability pay to which she was
entitled.
While plaintiff was on leave, the Nurse First management
team was reorganized and two of the management positions,
including hers, were eliminated. Shortly before returning to
work, plaintiff expressed an interest in securing a position as a
staff nurse in the Nashua Pediatrics Department. But, although
the position entailed 40 hours of work per week, plaintiff said
she wanted to work only 35 (or 32, depending upon whether one
credits her deposition testimony or her EEOC charge of
discrimination). Plaintiff did not get the job, and she claims
that the woman who did was less gualified than she for the
4 position and further claims that DHC refused to hire her because
of her cancer.2
In June of 1999, plaintiff was offered a position as a staff
nurse in the Nurse First Program, a job that required 35 hours
per week. It appears that she declined that offer and, shortly
thereafter, inquired about a staff nursing position in the Nashua
Urgent Care center - a position that called for only 20 hours of
work per week. Notwithstanding that fact, plaintiff proposed
working for 24 hours per week in that position and combining it
with an additional 6 hours per week of quality assurance work.
Her goal was to fashion a job that provided at least 30 hours of
work per week, thereby making her eligible for "H3" status and
greater benefits. DHC, however, declined that proposal, saying
the department was not budgeted for an "H3" position and all it
2 At her deposition, plaintiff testified that, notwithstanding the fact that DHC was "leaning towards a 40-hour workweek" for the vacant position, she told DHC that she was "only committed to 35 hours a week." Pimental deposition, day 2 at 7. Nevertheless, three or four days after making those comments, plaintiff says she attempted to contact her interviewer to say she was "planning to take the position." I d . at 8. But, she was unable to reach her interviewer that day and, when she finally was able to speak with her, plaintiff learned that the position had already been offered to another person - someone willing to work 40 hours per week.
5 needed was someone to work 20 hours per week. Although
disappointed, plaintiff appears to have accepted the position as
originally offered. She does, however, seem to suggest that
DHC's rejection of her efforts to combine various positions to
obtain "H3" status constitutes a failure to reasonably
accommodate her claimed disability. See Plaintiff's memorandum
at 6.
Shortly thereafter, plaintiff interviewed for the West
Center Manager of the Nashua Division of DHC. DHC did not hire
her for that position, claiming that the woman who was eventually
hired was simply more gualified than plaintiff.
Finally, in September of 1999, plaintiff expressed interest
in an Urgent Care position in Manchester, but was soon told that
DHC was not going to fill the position at that time. As part of
her (implicit) evidence of unlawful discrimination, plaintiff
says she saw that very position advertised in the newspaper
approximately two months later. DHC suggests that the decision
to fill the position in December, rather than September, was
purely financial; in December, its budget permitted it to fill
6 that vacant position, albeit for only 30 hours per week, rather
than the 36 hours per week originally contemplated. Plaintiff,
on the other hand, suspects she was not given the position when
she originally inguired about it because DHC harbored some
discriminatory animus against her based upon her cancer. See
Pimental deposition, day 2 at 107 ("I don't see any other reason
whey they would have not hired me for the position.").3
In October of 1999, plaintiff applied for, and obtained, a
full-time position as a school nurse in the Londonderry School
District. She began working there in early November, while
remaining in her position at DHC. In December of 1999, however,
she notified DHC that she was resigning, effective January 1,
2000. She did, however, remain as a per diem employee,
apparently making herself available to DHC when its need for
additional nursing staff coincided with her availability (though
it is unclear whether she ever actually worked on a per diem
basis after her resignation).
3 Although DHC publically advertised for the vacant position in December - prior to plaintiff's resignation - she never applied for (nor, necessarily, was she ever interviewed for) that position.
7 DHC contends that it declined to hire plaintiff for the
various positions she sought because other, better qualified
applicants were hired instead, or because plaintiff sought hours
and/or benefits above those for which the particular department
was presently budgeted. It categorically denies that plaintiff's
cancer played any role in its hiring decisions. Plaintiff, on
the other hand, says DHC's refusal to hire her for those
positions was motivated by a discriminatory animus, based upon
her cancer.
Discussion
Title I of the ADA prohibits employers from discriminating
against qualified individuals with disabilities. To establish a
prima facie case of disability discrimination under the ADA,
plaintiff must show that: during the time frame relevant to this
suit, she suffered from a disability, as that term is used in the
ADA; she was able to perform the essential functions of her job,
either with or without reasonable accommodation; and she suffered
an adverse employment action because of her disability. See, e.g., Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 239 (1st
Cir. 2001) .4
The ADA defines "disability" as: "(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). Plaintiff asserts that she is a gualified
individual with a disability under each of these three
definitions. DHC disagrees.
I. Plaintiff's Impairment and Section 12102(2) (A).
In determining whether an employee falls within the scope of
section 12102(2)(A), courts apply a three-part test.
First, we consider whether [the plaintiff's] condition constitutes a mental or physical "impairment." Second, we identify the life activities upon which [the
4 As is the case in most employment discrimination suits, absent direct evidence of discriminatory animus on the part of the employer, the court employs the familiar McDonnell-Douqlas burden shifting paradigm with regard to most claims brought under the ADA. An exception to that general rule applies when an ADA plaintiff advances a "failure to accommodate" claim, in which case the principles articulated in McDonnell-Douqlas do not apply. See generally Higgins v. New Balance Athletic Shoe, Inc., 194 F .3d 252, 264 (1st Cir. 1999) plaintiff] relies to determine whether they constitute "major life activities." Major life activities are only those that are "of central importance to daily life." Third, we must determine whether the impairment substantially limits the major life activity identified. To be substantially limiting, the impairment's impact must be permanent or long-term.
Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Cir.
2002) (citations omitted). See also Braqdon v. Abbott, 524 U.S.
624, 631 (1998) .
There is no guestion that plaintiff's breast cancer
constitutes an "impairment" for purposes of the ADA. See 29
C.F.R. § 1630.2(h). See also Ellison v. Software Spectrum, Inc.,
85 F.3d 187, 190 (5th Cir. 1996) (holding that the plaintiff's
breast cancer was an impairment under the ADA ) ; Treiber v.
Lindbergh School Dist., 199 F. Supp. 2d 949, 958 (E.D. Mo. 2002)
(same). But, although plaintiff's cancer gualifies as an
impairment, it does not necessarily follow that she is also
"disabled" within the meaning of the ADA. See Bailey, 30 6 F.3d
at 1167. See also Godron v. Hillsborough County, 2000 WL 1459054
*2, n.3, 2000 DNH 77 (D.N.H. March 21, 2000) ("Cancer is not a
per se disability under the A D A " ) . Thus, the more difficult
guestion presented in this case is whether, during the time
10 period relevant to her ADA claims, plaintiff's breast cancer
substantially limited one or more of her major life activities.
In attempting to demonstrate that an impairment
substantially limits a major life activity, it is not enough for
a plaintiff to simply submit evidence of a medical diagnosis of
an impairment. See Toyota Motor Mfg., K v . , Inc. v. Williams, 534
U.S. 184, 195 (2002) ("Merely having an impairment does not make
one disabled for purposes of the ADA. Claimants also need to
demonstrate that the impairment limits a major life activity.").
Conseguently, the Supreme Court has held that, "the ADA reguires
those claiming the Act's protection to prove a disability by
offering evidence that the extent of the limitation caused by
their impairment in terms of their own experience is
substantial." I d . at 198 (citations, internal guotation marks,
and internal punctuation omitted). See also 29 C.F.R. p t . 1630,
A p p . § 1630.2(j) ("The determination of whether an individual has
a disability is not necessarily based on the name or diagnosis of
the impairment the person has, but rather on the effect of that
impairment on the life of the individual. . . . The determination
of whether an individual is substantially limited in a major life
11 activity must be made on a case by case basis."). In other
words, determining whether a plaintiff has a disability under the
ADA involves an "individualized inquiry." Sutton v. United Air
Lines, Inc., 527 U.S. 471, 483 (1999).
In construing the scope and proper application of the ADA,
the Supreme Court has concluded that the phrases "substantially
limits" and "major life activity" must be "interpreted strictly
to create a demanding standard for qualifying as disabled."
Williams, 534 U.S. at 197. The Court has also held that "to be
substantially limited in performing manual tasks, an individual
must have an impairment that prevents or severely restricts the
individual from doing activities that are of central importance
to most people's daily lives. The impairment's impact must also
be permanent or long-term." I d . at 198 (emphasis supplied). In
short, to demonstrate that he or she falls within the scope of
the ADA, an individual bears a substantial burden of proof. See,
e.g., Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258
F.3d 30, 33 (1st Cir. 2001) (holding that to prevail, the
plaintiff must establish that her impairment "was profound enough
12 and of sufficient duration . . . to hamper her ability" to
engage in one or more major life activities).
In support of her claim that, during the time period
relevant to this litigation, her cancer (and the various side-
effects of the surgical and medical treatments she received)
substantially affected one or more major life activities,
plaintiff says her:
disability [a]ffected practically all major life functions. The cancer [a]ffected [plaintiff's] ability to care for herself, sleep, to concentrate. In essence it affected all her major life functions. The cancer also [a]ffected [her] ability to reproduce and have sexual activity. The treatment forced [plaintiff] into early menopause and interfered with her relations with her husband. [Plaintiff] was forced to take chemotherapy and [several medications]. Many of these medicines pose a positive risk to a fetus if taken during pregnancy. The Court has found that "reproduction and sexual dynamics surrounding it are central to the life process itself" and that the ability to reproduce and bear children constitutes a major life activity.
Plaintiff's memorandum at 11-12 (citations omitted) (emphasis
supplied).
13 Turning to the evidence adduced by plaintiff in support of
those claims - her deposition testimony and her affidavit - the
court is compelled to conclude that she has failed to demonstrate
that her breast cancer had a substantial limiting effect on her
ability to care for herself, sleep, or concentrate. See Pimental
deposition, day 2, at 138-53; Pimental affidavit at paras. 3 and
7. While that testimony plainly reveals the terrible effect the
cancer had upon her, it also discloses that during the period
relevant to this litigation, the most substantial side-effects
were (relatively speaking) short-lived. That is to say, they did
not have a substantial and lasting effect on the major activities
of her daily life. See, e.g., Pimental deposition, day 2, at
140-41 (stating that her concentration was not impaired to the
point that it prevented her from doing her job); 145 (stating
that prescription medications reduced her hot flashes and helped
her sleep); 148 (stating that her memory problems did not affect
her ability to do her job and she was able to accommodate her
periodic forgetfulness); 148 (stating that she no longer suffers
from radiation burns); 149-51 (stating that while she still has
some difficulty reaching high above her head and carrying heavy
objects, she was able to perform a range of household chores);
14 152 (stating that she no longer experiences shortness of breath);
152-53 (in response to a guestion asking whether concentration
problems had a "significant impact" on her life, saying they had
"some impact").
Moreover, plaintiff's own assertions that the cancer did not
substantially impair her ability to perform various tasks
associated with her employment tend to undermine her claim that
it did substantially affect her ability to, for example, care for
herself on a long-term basis. See, e.g.. Plaintiff's memorandum
at 12 (stating that plaintiff "does not claim that her major life
activity of working has been substantially compromised"); i d . at
4 (stating that, upon her return from medical leave, plaintiff
"had no problems performing her duties as a nurse"). Thus, she
has failed to demonstrate that her illness substantially affected
her ability to care for herself, sleep, or to concentrate on a
permanent or long-term basis.
Finally, plaintiff says the chemotherapy she received
essentially precluded her from conceiving a child (because of the
risk posed to the fetus by such treatment) and, ultimately.
15 caused her to undergo premature menopause. Thus, she says it
adversely (and permanently) affected her ability to reproduce.
The Supreme Court has held that the ability to reproduce is a
"major life activity." See Braqdon, 524 U.S. at 638
("Reproduction falls well within the phrase 'major life
activity.' Reproduction and the sexual dynamics surrounding it
are central to the life process itself."). Thus, says plaintiff,
on that ground alone she is plainly "disabled" within the meaning
of section 12102(A).
There is little doubt that had plaintiff become pregnant
during her chemotherapy treatment, the fetus might well have been
placed at substantial risk. Nor is there any doubt that, to the
extent the chemotherapy caused her to undergo premature
menopause, it adversely affected her ability to bear more
children. Importantly, however, plaintiff points to nothing in
the record that suggests she intended to have more children.
And, because assessing an individual's disability under the ADA
reguires an "individualized inguiry," it is not enough to simply
say that she can no longer have children. Instead, plaintiff
must point to something that suggests she at least contemplated
16 having more children. Chief Justice Rehnquist addressed this
issue in his separate opinion in Braqdon, writing:
According to the Court, the next question is 'whether reproduction is a major life activity." That, however, is only half of the relevant question. As mentioned above, the ADA's definition of a "disability" requires that the major life activity at issue be one "of such individual." The Court truncates the question, perhaps because there is not a shred of record evidence indicating that, prior to becoming infected with HIV, respondent's major life activities included reproduction (assuming for the moment that reproduction is a major life activity at all). . . . There is absolutely no evidence that, absent the HIV, respondent would have had or was even considering having children.
Braqdon, 524 U.S. at 658-59 (Rehnquist, C.J., concurring in part
and dissenting in part). See also Treiber, 199 F. Supp. 2d at
960 (concluding that while plaintiff's breast cancer was
certainly an impairment, she failed to demonstrate that it
substantially affected a major life activity; although
chemotherapy affected her ability to have children, plaintiff did
not assert any interest in having children and, therefore, that
side-effect of her treatment did not render her disabled under
the A D A ) .
17 So it is in this case. While the record reveals that
plaintiff has two children (ages nine and eleven ) , there is
simply no evidence that, prior to being diagnosed with cancer,
she had considered having more.5 She has likewise failed to
point to sufficient evidence in the record to support the
conclusion that her cancer had a permanent or long-lasting and
substantial effect on her intimate relations with her husband.
See Pimental deposition, day 2 at 153 (stating that while she
remains self-conscious, her intimate relationship with her
husband has, following her reconstructive surgery, changed for
the better: "It's improved. I don't know if it will ever be the
same as it was prior to my diagnosis, but it's definitely
improved since I had reconstruction.").
In light of the record evidence upon which plaintiff relies
in her memorandum, she has failed to make a prima facie showing
that she was, during the period relevant to her claims against
DHC, "disabled" under section 12102(A). See Gillen v. Fallon
5 At the final pretrial conference held on December 20, 2002, the court discussed this shortcoming in the evidence upon which plaintiff relies. Through counsel, plaintiff candidly acknowledged that she could not, in good faith, make the reguired representation regarding reproductive intent.
18 Ambulance Service, Inc., 283 F.3d 11, 24 (1st Cir. 2002) ("A
plaintiff must proffer evidence from which a reasonable inference
can be drawn that a major life activity is substantially or
materially limited.") (quoting Snow v. Ridgeview Medical Center,
128 F.3d 1201, 1207 (8th Cir. 1997)) (internal punctuation
omitted) .
II. Plaintiff Lacks a "Record of Such an Impairment."
In support of her asserted entitlement to the protections
afforded by the ADA by virtue of section 12102(2) (B) , plaintiff
says :
It is undisputed that [plaintiff] has a record of breast cancer. [Plaintiff] received her treatment for cancer at the Defendant's facility. It is undisputed that the Defendant was aware that [plaintiff] had taken leave of absence due to her breast cancer. The defendant provided her with Family Medical Leave Act time off for her cancer and provided her disability benefits. . . .
[Plaintiff] had claimed protection of the ADA under the auspices of having a record of an impairment. As there is undisputed evidence of a "record" of impairment and the Defendant has failed to address this claim in its motion for summary judgment[,] [t]his claim should be allowed to proceed to a jury.
19 Plaintiff's memorandum at 14. While it is true that plaintiff
has a demonstrated "record" of an impairment - her breast cancer
- that, standing alone, is insufficient to entitle her to the
protections afforded by the ADA. As the Act itself provides, to
qualify as "disabled" under section 12102(2) (B) , an individual
must demonstrate that he or she has a "record of such an
impairment." That is to say, a record of an impairment that
"substantially limits one or more of the major life activities of
such individual." And, as noted above, plaintiff's evidence on
that point is legally insufficient to deflect summary judgment.
See Santiago Clemente v. Executive Airlines, 7 F. Supp. 2d 114,
118 (D.P.R. 1998) ("While her employer's awareness might be
enough to establish a record of her condition, it does not, by
any means, establish a record of disability. Again, evidence of
impairment alone is not enough to establish disability.").
III. Plaintiff was not "Regarded as Having Such an Impairment."
Finally, plaintiff asserts that she is entitled to the
protections afforded by the ADA because DHC regarded her as
disabled - that is, suffering from an impairment that
substantially limited one or more major life activities. See 42
20 U.S.C. § 12102(2)(C). See also 29 C.F.R. § 1630.2(1). As the
Supreme Court has observed.
[t]here are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual - it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.
Sutton, 527 U.S. at 489.
Here, plaintiff seems to suggest that the major life
activity that DHC mistakenly believed was substantially limited
by her cancer was her ability to work.6 In support of that
claim, plaintiff says:
6 The Supreme Court has yet to decide whether working constitutes a major life activity under the ADA. See Williams, 534 U.S. 193; Sutton, 527 U.S. at 492. For purposes of addressing defendant's motion for summary judgment, however, the court will assume that working is a major life activity. See, e.g., Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54, 58 (1st Cir. 2001) (assuming, arguendo, that working is a "major life activity"); Carroll v. Xerox Corp., 294 F.3d 231, 239 n.7 (1st Cir. 2002) (same) . See generally 29 C.F.R. § 1630.2 (j) (3) (suggesting that working is a "major life activity").
21 The Defendant regarded Ms. Pimental to be disabled as of October 10, 1998. Diane Dwyer, Southern New Hampshire Region HR Manager placed her on disability leave. The undisputed comments regarding the "stress" of Ms. Pimental's illness also demonstrates [sic] the fact that the Defendant regarded Ms. Pimental as disabled. They [sic] felt she could not handle the "stress" of management with her disability. Upon her application for a job as a staff nurse in the West Center Pediatrics it is undisputed that the interviewer, Ms. Thomas, made inguiries regarding her disability. Pre-employment inguiries are prohibited under the ADA.
Plaintiff's memorandum at 14-15 (citations omitted).
First, plaintiff has a somewhat mistaken view of the extent
to which employers may make "pre-employment inguiries" into
candidates' disabilities. The regulation upon which she relies
provides that, generally speaking, employers may not ask whether
an individual suffers from a disability or inguire into the
nature or severity of that disability. See 29 C.F.R. §
1630.13(a). Importantly, however, the next section of the Code
of Federal Regulations, which plaintiff overlooks, specifically
authorizes employers to "make pre-employment inguiries into the
ability of an applicant to perform job-related functions, and/or
[to] ask an applicant to describe or to demonstrate how, with or
22 without accommodation, the applicant will be able to perform job-
related functions." 29 C.F.R. § 1630.14.
In support of her view that DHC violated section 1630.13,
the sole evidence identified by plaintiff is page 19 of her
deposition, see plaintiff's memorandum at 15, where, in response
to a question about why she thought she was denied a job because
of her impairment, she testified:
Well, Jan asked me where I was in my treatment, and I told her I was going to have to go for further treatment, radiation treatments for four to six weeks after my return to work. I told her I would try to schedule that around department needs.
Pimental deposition, day 2 at 19. Nothing about that isolated
question posed by the interviewer suggests that it was made in
violation of section 1630.13. First, DHC was well aware that
plaintiff had been diagnosed with cancer; in fact, it had given
her substantial medical leave in order to obtain treatment -
treatment she received at DHC. Thus, there was no need for DHC
to violate section 1630.13 by making "inquiries as to whether
[plaintiff] is an individual with a disability."
23 Moreover, plaintiff's response to the question reveals that
she interpreted it as an inquiry into whether she would require
any further accommodations in order to perform the tasks
associated with the position she souqht (e.g., additional medical
leave time) - a line of inquiry permitted by section 1630.14. In
short, plaintiff has pointed to insufficient evidence to support
even the inference that DHC violated the provisions of section
1630.13 during the course of that particular interview.
Next, plaintiff says evidence that DHC regarded her as
disabled can be found in comments made by DHC employees
concerning her stress. In support of that assertion, plaintiff
again points to her deposition. Overlooking potential hearsay
and admissibility issues for the moment, plaintiff testified that
two DHC employees told her they had heard that other DHC
employees did not believe she was the right person for a
particular managerial job since she was experiencing so much
stress dealing with her cancer. Pimental deposition, day 1 at 64
and 71. Again, however, that isolated, anecdotal evidence is
insufficient to sustain her burden of showing that DHC regarded
24 her as substantially limited in her ability to work. As the
Court of Appeals for the Second Circuit has noted:
"substantially limited" in the ability to work means that a plaintiff is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs. An impairment that disgualifies a person from only a narrow range of jobs is not considered a substantially limiting one.
Thus, in order to prove that [defendant] perceived her as substantially limited in her ability to work, [plaintiff] bore the burden of presenting evidence that [defendant] perceived her to be incapable of working in a broad range of jobs suitable for a person of her age, experience, and training because of her disability.
Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872 (2d Cir. 1998)
(citations and internal punctuation omitted). See also Carroll
v . Xerox Corp., 294 F.3d 231, 240 (1st Cir. 2002) (same) Sinkler
v. Midwest Property M n q t . Ltd. Pshp., 209 F.3d 678, 686 (7th Cir.
2000) (same); Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d
538, 542 (1st Cir. 1999) (same); Ellison, 85 F.3d at 192 (same).
See generally 29 C.F.R. § 1630.2 (j) (3).
Even viewing the evidence upon which plaintiff relies in the
light most favorable to her, a reasonable, properly instructed
trier of fact could not conclude that DHC regarded her as
25 incapable of performing a wide range of jobs for which she was
trained. See, e.g., Doval v. Oklahoma Heart, Inc., 213 F.3d 492,
499 (10th Cir. 2000) (holding that "isolated comments" that
plaintiff was "incapacitated" and that her "difficulties at work
were not a fixable problem" were insufficient to "support the
conclusion that management misperceived her as being
substantially limited in learning, sleeping, thinking, or
interacting with others."); Ellison, 85 F.3d at 192-93 (holding
that notwithstanding the fact that supervisor made comments about
plaintiff's breast cancer that were insensitive, crass, and
"beneath contempt," they were insufficient to support her claim
that her employer "regarded her" as disabled by reason of her
illness); Pikoris v. Mount Sinai Medical Center, 2000 WL 702987
*13 (S.D.N.Y. May 30, 2000) (holding that employer's comments
indicating that, given plaintiff's recent treatment for breast
cancer, it believed her position as an anesthesiology resident
was too stressful for her were insufficient to support conclusion
that employer perceived her as generally unable to work because
of her illness). In fact, it is undisputed that the three DHC
employees plaintiff listed on her resume as references provided
her with strong recommendations for the position with the
26 Londonderry School District that plaintiff ultimately secured.
See, e.g., Pimental Deposition, day 2 at 79. Those strong
recommendations certainly suggest that DHC did not consider
plaintiff unable to perform a wide range of jobs for which she
was gualified. See, e.g., Ryan, 135 F.3d at 871 (holding that
statement to plaintiff that "this job is too stressful for you
because you have colitis" did not, in light of employer's having
given her strong employment recommendations, support conclusion
that employer misperceived her as being disabled).
In light of the sparse evidence of record upon which
plaintiff relies, she has failed to carry her burden of
demonstrating that DHC regard her as disabled under section
12102(2)(C). At most, plaintiff has demonstrated that DHC
regarded her as suffering from an impairment that did not
substantially limit one or more of her major life activities.
See Tardie, 168 F.3d at 542.
Conclusion
There is no guestion that plaintiff's cancer has
dramatically affected her life, and that the associated
27 impairment has been real and extraordinarily difficult for her
and her family. The narrow issue before the court, however, is
whether, during the time period at issue, her cancer rendered her
"disabled," as that term is used in the ADA. Based upon the
record presented, the court is compelled to conclude that
plaintiff has not, and cannot, point to sufficient evidence to
support a claim of disability under the ADA, given that term's
statutory meaning. Conseguently, as to plaintiff's claims under
the ADA, the defendant, DHC, is entitled to judgment as a matter
of law.
As to plaintiff's state law claims, which, among other
things, raise difficult state law guestions involving statutory
preemption of common law causes of action and whether N.H. Rev.
Stat. Ann. 275:49 provides a private right of action, the court
declines to exercise its supplemental jurisdiction. See
generally Camelio v. American Federation, 137 F.3d 666 (1st Cir.
1998) . See also Dennis v. Husqvarna Forrest & Garden Co . , 1994
WL 759187 at *7 (D.N.H. Dec. 27, 1994) ("[T]his court is and
should be hesitant to blaze new, previously uncharted state-law
trails. Expansive reading of New Hampshire statutes and
28 recognition of novel causes of action under those statutes is a
realm best occupied by the New Hampshire Supreme Court.").
Because plaintiff's state law claims are best pursued in a state
court of competent jurisdiction, this court will not resolve them
in this case.
Defendant's motion for summary judgment (document no. 19) is
granted in part. Defendant is entitled to judgment as a matter
of law with regard to counts 1, 2, and 3 of plaintiff's amended
complaint. As to the remaining counts (4 and 5), which advance
state law claims, the court declines to exercise its supplemental
jurisdiction and they are dismissed without prejudice to pursuing
them in state court. Defendant's motion to exclude plaintiff's
expert testimony (document no. 12) is denied as moot. The Clerk
of Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge December 30, 2002
cc: John S. Krupski, Esg. Emily G. Rice, Esg.