Soileau v. Guilford of ME

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 96-1796



                                 RANDALL J. SOILEAU,



                                Plaintiff, Appellant,



                                          v.



                               GUILFORD OF MAINE, INC.,



                                 Defendant, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                            Cyr and Lynch, Circuit Judges,
                                           ______________



                           and McAuliffe, District Judge.*
                                          ______________



                                 ____________________



            Martha  S.  Temple with  whom  Foote  &  Temple was  on  brief for
            __________________             ________________

        appellant.

            Richard  G. Moon  with whom  James  P.  Bailinson and  Moon, Moss,
            ________________             ____________________      ___________

        McGill & Bachelder, P.A. were on brief for appellee.
        ________________________

                                 ____________________



                                   January 23, 1997

                                 ____________________


____________________



        *Of the District of New Hampshire, sitting by designation.



LYNCH,  Circuit Judge.  Randall Soileau, terminated
                      LYNCH,  Circuit Judge.
                              _____________



            from  his employment  as  an industrial  process engineer  at



            Guilford of  Maine, Inc.,  seeks redress under  the Americans



            with Disabilities Act ("ADA"), 42 U.S.C.   12101 et seq., and
                                                             _______



            the Maine  Human Rights Act, Me.  Rev. Stat. Ann. tit.  5,   



            4551 et  seq.  He  first claims  that Guilford  discriminated
                 ________



            against  him because of his  disability.  He  is disabled, he



            asserts, because his diagnosed depressive disorder interferes



            with his ability to  interact with others.  That  ability, he



            says,   is  a   "major  life   activit[y]"  which   has  been



            "substantially  limit[ed]" within the meaning of the ADA.  42



            U.S.C.   12102(2).  Secondly, he says, the termination of his



            employment was in retaliation for his requesting a reasonable



            accommodation.  His claims  were rejected on summary judgment



            by  the trial court in a  carefully reasoned opinion, Soileau
                                                                  _______



            v. Guilford of  Maine, Inc., 928 F.  Supp. 37 (D.  Me. 1996).
               ________________________



            We affirm.



                                          I



                      Only  those facts  necessary to  resolve  the legal



            issues  are outlined.  The  facts are described  in the light



            most  favorable to  Soileau, the  party against  whom summary



            judgment  was  entered.     Hoeppner  v.  Crotched   Mountain
                                        ________      ___________________



            Rehabilitation Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994)
            _________________________



                      Soileau worked  in various capacities  for Guilford



            from 1979 until April 22, 1994.  In 1986, he began working in


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the  industrial  engineering  department  as   a  time  study



            analyst, which involved timing various aspects  of production



            at Guilford.   A subset  of his duties  involved facilitating



            Process Activity Analysis ("PAA")  meetings, at which ways of



            improving  department efficiency  were discussed.    In 1992,



            Soileau began working for a new supervisor, Matt Earnest, who



            found  areas  of Soileau's  performance  not  to his  liking.



            Around this time, Soileau requested a pay raise which was not



            granted; after this, Earnest perceived a marked deterioration



            in Soileau's attitude.   The relationship between Soileau and



            Earnest quickly soured, with Soileau feeling that Earnest was



            harassing him.   While  rating Soileau's work  performance as



            average to above average, Earnest consistently cautioned that



            Soileau needed to gain credibility and the respect of his co-



            workers.



                      On  May 10,  1993,  Earnest gave  Soileau a  verbal



            warning  about  his  negative  attitude  at  work.    Earnest



            requested that  Soileau elicit  his co-workers' views  on his



            performance, which  Soileau did.  When  Earnest asked Soileau



            to come up with  a plan to address the  weaknesses identified



            in this survey,  Soileau refused, because he  felt the survey



            did not show  any problem areas.  On March  22, 1994, Earnest



            instructed Soileau  to train a  co-worker to perform  some of



            Soileau's duties in preparation for expanding the PAA program



            to other departments.  When Soileau did not do so (because he


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felt the request  was not authorized  by the pertinent  plant



            committees), a dispute arose between the two men.



                      After consulting with the company's human resources



            manager,    Earnest   issued   Soileau   a   "Final   Written



            Warning/Suspension" on  March 23, 1994.   This warning listed



            four performance deficiencies, ordered  a two day suspension,



            and required Soileau to evaluate his own performance and come



            back  with an improvement plan.  The warning said there would



            be  a four  week  period during  which Soileau's  performance



            would be monitored.   Failure to improve would lead  to other



            consequences, which could  include job termination.   Earnest



            explained all of this to Soileau that day.



                      The  final  warning proved,  understandably,  to be



            very  stressful  for Soileau.    On  March 28,  Soileau  told



            Earnest  that he had been suicidal  several years earlier and



            that he feared he was becoming  ill again.  Earnest had  been



            unaware  of Soileau's condition; all he had known was that in



            1990 Soileau had taken a disability leave for stress.



                      On April 6, Soileau went to see a psychologist, Dr.



            Dannel Starbird, whom he had seen four years earlier during a



            depressive episode which had been precipitated in part by his



            deteriorating relationship with his girlfriend.  In 1990, Dr.



            Starbird had  diagnosed  Soileau with  dysthymia,  a  chronic



            depressive  disorder characterized  by intermittent  bouts of



            depression.  On Dr. Starbird's advice, Soileau had sought and


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received  a five  week disability  leave from  work.   He had



            returned  to  work without  restriction  and  had no  further



            psychological counselling  until just after  he received  the



            final warning in March 1994.



                      Soileau  told  Dr. Starbird  that  his  job was  in



            jeopardy.  Dr. Starbird diagnosed Soileau as suffering from a



            bout  of depression, a condition  that was probably caused by



            receiving the warning.  On April 7, Soileau told Earnest that



            he was  having a difficult time interacting with other people



            and  having a  particularly  hard time  facilitating the  PAA



            meetings.  Earnest  agreed that, for the time  being, Soileau



            would be  relieved of  his responsibilities for  facilitating



            meetings and would mainly do clerical work.  That was done.



                      On April 12,  Dr. Starbird wrote to  Guilford.  The



            letter asked that Soileau's work duties be "restricted  so as



            to   avoid   responsibilities   which   require   significant



            interaction with  other employees," and  advised that Soileau



            "should not be ridiculed, provoked or startled by or in front



            of supervisors or other employees."



                      Earnest and  Soileau met on April  21; Earnest said



            he felt the  accommodations already made met  the requests in



            the doctor's letter.   At no time during that  meeting or the



            four  week trial  period did  Soileau present  an improvement



            plan  to  address  the  four  points  raised  in the  written



            warning.


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On April 22,  Soileau's employment was  terminated.



            Earnest told  Soileau  it  was  because  there  had  been  no



            improvement in the four problem areas and because Soileau had



            not  submitted an  improvement plan.   In May,  Soileau began



            looking for another job.   He looked for full-time employment



            and placed no restrictions on the type of work sought.



                                          II



                      Review  of entry  of summary  judgment is  de novo.
                                                                 __ ____



            Wood v. Clemons, 89 F.3d 922, 927 (1st Cir. 1996).  
            ____    _______



                      As the district court noted, interpretation of  the



            ADA and of the Maine Human  Rights Act have proceeded hand in



            hand,  and so we discuss the ADA, which has provided guidance



            to Maine  courts in interpreting the state  statute.  Winston
                                                                  _______



            v.  Maine Technical College Sys., 631 A.2d 70, 74 (Me. 1993),
                ____________________________



            cert. denied, 114 S. Ct. 1643 (1994).  
            ____________



                      Soileau's  initial claim under  the ADA  depends on



            his establishing  that he suffers from  a "disability" within



            the meaning of the statute.  Jacques v. Clean-Up Group, Inc.,
                                         _______    ____________________



            96  F.3d  506, 511  (1st Cir.  1996);  see also  42  U.S.C.  
                                                   ________



            12112(a).  The definition of disability must be understood in



            light of congressional objectives in enacting the ADA.  In an



            effort to eliminate  discrimination against individuals  with



            disabilities,   the   statute   prohibits    employers   from



            discriminating  against   "a  qualified  individual   with  a



            disability because of the disability."  42 U.S.C.   12112(a).


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The antidiscrimination obligation  is unusual in the  context



            of  federal civil  rights statutes.   It  imposes not  only a



            prohibition against discrimination,  but also, in appropriate



            circumstances,  a  positive  obligation  to  make  reasonable



            accommodations.  Absent a disability, however, no obligations



            are triggered for the employer.



                      Only  one   of  the  ADA's  three   definitions  of



            "disability"  is  pertinent here:    Soileau  claims that  he



            suffered   from  "a  physical   or  mental   impairment  that



            substantially limits one or more of the major life activities



            of such  individual."   Id.   12102(2)(A); see  Katz v.  City
                                    ___                ___  ____     ____



            Metal Co., 87 F.3d 26, 30-31 (1st Cir. 1996).
            _________



                      To make  out a  prima facie case  of discrimination



            based  on   this  definition  of  disability,   Soileau  must



            establish  three elements:    (1)that he  had a  "physical or



            mental impairment"  that  (2) "substantially  limits" (3)  "a



            major  life activity."  42 U.S.C.   12102(2)(A).  Soileau has



            successfully  shown  that  he  met  the  first  element;  his



            diagnosed dysthymia is a mental impairment within the meaning



            of  the statute.  See 29 C.F.R.   1630.2(h)(2).  However, the
                              ___



            evidence Soileau  produced does not  suffice, as a  matter of



            law,  for   a  reasonable  jury  to  conclude   that  he  was



            substantially  impaired in  a major  life activity.   Soileau



            constructs his  argument by saying  that the  ability to  get


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along with others is the major life activity2 in  which he is



            substantially  impaired.  The  regulations promulgated by the



            Equal Employment Opportunity Commission  under the ADA do not



            list  such an  ability  among  the  exemplars of  major  life



            activities.3  Id.   1630.2(i).  
                          ___



                      The concept  of "ability to get  along with others"



            is  remarkably  elastic, perhaps  so much  so  as to  make it



            unworkable as a definition.  While such an ability is a skill



            to  be  prized, it  is different  in  kind from  breathing or



            walking,  two exemplars  which are  used in  the regulations.



            Further, whether a person has such an ability may be a matter



            of  subjective judgment; and the ability may or may not exist



            depending on  context.  Here, Soileau's  alleged inability to



            interact  with others  came  and went  and  was triggered  by



            vicissitudes  of  life  which  are   normally  stressful  for



            ordinary people -- losing a girlfriend or being criticized by



            a  supervisor.   Soileau's last  depressive episode  was four



                                
            ____________________



            2.  Although Soileau  also argued to the  district court that

            his ability to work was the major life activity that had been

            impaired,  he has not pursued  this claim on  appeal.  In any

            event, this claim would fail because  he has not shown he  is

            unable to work.  See 29 C.F.R.   1630.2(j)(3).
                             ___



            3.  The  EEOC Compliance  Manual  does list  interacting with

            others as  a  major life  activity.   EEOC Compliance  Manual

            (CCH)   902.3,   6883, at 5311 (1995).  While  this court has

            found reference to the  EEOC Compliance Manual to be  helpful

            on occasion,  see, e.g., Katz, 87  F.3d at 31, the  manual is
                          ___  ____  ____

            hardly  binding.  Cf. Schmidt  v. Safeway Inc.,  864 F. Supp.
                              ___ _______     ___________

            991,  1001 (D.  Or.  1994) (noting  that  the EEOC  Technical

            Assistance Manual "is not law" and "does [not] have the force

            of law").



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                                          8



years earlier, and  he had  no apparent  difficulties in  the



            interim.  To impose legally enforceable duties on an employer



            based  on such an amorphous concept would be problematic.  It



            may  be  that  a  more  narrowly  defined  concept  going  to



            essential  attributes of  human  communication  could,  in  a



            particular  setting,  be  understood   to  be  a  major  life



            activity, but we need not address that question here.



                      But  even  assuming,  dubitante,  that  a colorable
                                            _________



            claim may be made that "ability to get  along with others" is



            or may be (on specific facts) a major life activity under the



            ADA,  the  evidence  here   does  not  show  any  substantial



            limitation.  Under the  relevant ADA regulation an individual



            faces a "substantial limitation" when he is:



                      (i)    Unable  to perform  a  major  life

                      activity that the  average person in  the

                      general population can perform; or

                      (ii)  Significantly restricted as  to the

                      condition, manner or duration under which

                      an  individual  can perform  a particular

                      major  life activity  as compared  to the

                      condition,  manner,   or  duration  under

                      which the  average person in  the general

                      population  can  perform that  same major

                      life activity.



            Id.      1630.2(j)(l).    One  factor  to  be  considered  in
            ___



            determining whether an individual is substantially limited in



            a major life  activity is  "the nature and  severity" of  the



            impairment.   Id.   1630.2(j)(2)(i).   The evidence  does not
                          ___



            establish   that  Soileau   had   particular  difficulty   in



            interacting   with   others,  except   for   his  supervisor.


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Impairment  is to be measured in relation to normalcy, or, in



            any event, to what  the average person does.   Soileau claims



            he had to  leave pubs  and stores when  they became  crowded.



            But there is nothing extraordinary about preferring uncrowded



            places.   Soileau  performed  his normal  daily chores,  went



            grocery  shopping, and visited pubs.   That he  left pubs and



            stores  when  he felt  there were  too  many people  does not



            establish that the nature and severity of his impairment were



            substantial.



                      Another  factor to  be  considered is  the expected



            duration of the  impairment.  Id.   1630.2(j)(2)(ii).   While
                                          ___



            Dr.  Starbird  believes  that Soileau's  underlying  disorder



            (dysthymia) will be a life-long condition, Soileau has failed



            to  adduce any  evidence that  his impairment  -- the  acute,



            episodic  depression   --  will  be  long-term.     His  last



            depressive  episode, in 1990, required  only a five week work



            absence  before he was able  to return to  his duties without



            restriction.     During   the  1994  episode,   Dr.  Starbird



            suggested, at most, that Soileau not have to run meetings for



            a  four  month  period.     Considering  these  factors  both



            separately and together, Soileau has not met his burden.  The



            impairment  must be  a significant one  to trigger  the Act's



            obligation.



                                         III


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Soileau  asserts  an  independent  claim  that  his



            employment  was terminated in  retaliation for his requesting



            an accommodation.   He may  assert such  a claim even  if the



            underlying  claim of  disability fails.   Mesnick  v. General
                                                      _______     _______



            Elec.,  Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied,
            ___________                                     ____________



            504 U.S. 985 (1992).



                      The   ADA   prohibits  discrimination   against  an



            individual "because  such individual  has opposed any  act or



            practice  made  unlawful  by  this chapter  or  because  such



            individual   made   a   charge,   testified,   assisted,   or



            participated in any  manner in an  investigation, proceeding,



            or hearing under this chapter."  42 U.S.C.   12203(a).



                      It is questionable whether  Soileau fits within the



            literal language of  the statute:   he filed  no charge,  nor



            participated  in any  investigation.   Moreover,  he did  not



            literally oppose any act or practice, but simply requested an



            accommodation,  which was  given.   It would  seem anomalous,



            however, to think Congress intended no retaliation protection



            for employees who request  a reasonable accommodation  unless



            they also file a  formal charge.  This would  leave employees



            unprotected  if an  employer  granted  the accommodation  and



            shortly  thereafter terminated  the employee  in retaliation.



            And so,  without addressing  the issue  any further,  we will



            assume arguendo that Soileau's  request brings him within the
                   ________



            coverage of 42 U.S.C.   12203(a).


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The ADA incorporates the procedures and enforcement



            mechanisms  of  Title  VII,  the  basic  statute  prohibiting



            discrimination   in  employment.      See  id.      12117(a).
                                                  ___  ___



            Accordingly, guidance on the proper analysis of Soileau's ADA



            retaliation  claim is  found in  Title VII  cases.   Carparts
                                                                 ________



            Distrib.  Ctr., Inc. v. Automotive Wholesaler's Assoc. of New
            ____________________    _____________________________________



            England, Inc., 37 F.3d 12, 16 (1st Cir. 1994).
            _____________



                      By  analogy to Title  VII, to establish  a claim of



            retaliation  Soileau  must  show   that  he  was  engaged  in



            protected conduct, that he was discharged, and that there was



            a causal  connection between  the discharge and  the conduct.



            Wyatt v. City of Boston, 35  F.3d 13, 15 (1st Cir. 1994) (per
            _____    ______________



            curiam); Hoeppner, 31 F.3d at 14.  
                     ________



                      Soileau relies  primarily on the timing  of events,



            saying  he  was  discharged  right  after  he  asked  for  an



            accommodation.   True enough.   But that narrow focus ignores



            the larger sequence of events and also the larger truth.  The



            larger picture undercuts any claim of causation.



                      Soileau was  disciplined and warned of discharge if



            his  performance did not  improve and if he  did not submit a



            performance plan.  The discipline and warning happened before



            Guilford  ever  knew  that   Soileau  was  asserting  he  was



            presently   disabled  and  before   Soileau  asked   for  the


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                                          12



accommodation of not  running meetings.4   Accordingly,  that



            discipline   and  explicit  warning   could  not   have  been



            motivated, even in part, by a request for an accommodation.5



                      There is  no other evidence tending  to support the



            retaliation claim.   Soileau admitted at  his deposition that



            he never formulated any improvement plan for Earnest.  He had



            been told that termination  was a possible outcome if  he did



            not  submit a  plan.   On  appeal,  Soileau argues  that  his



            seeking  psychological   counselling  was,  in   essence,  an



            improvement plan.  If so, he never said that to his employer,



            who knew only that no plan had been provided.  Further, it is



            undisputed  that  in the  interim  Guilford  did provide  the



            accommodation which Soileau  and his psychologist  requested.



            Soileau  no longer  had to  run meetings.   Evidence  that an



            employer  willingly  granted  an  employee's request  for  an



            accommodation, though by no  means dispositive of the matter,



                                
            ____________________



            4.  Soileau had not claimed earlier that he  was disabled and

            the employer is  not put  on notice of  a present  disability

            merely because an employee  some years in the past  has taken

            medical leave or has sought psychological counselling.



            5.  A  danger of the line of argument presented by Soileau is

            that it  would  permit  an  employee  already  on  notice  of

            performance problems to  seek shelter in  a belated claim  of

            disability.   The ADA was not meant to prevent employers from

            taking  steps to  address  poor  performance by  non-disabled

            employees.  As  Judge Sporkin  has said in  rejecting an  ADA

            retaliation claim, "To  allow the antidiscrimination laws  to

            be used  by poorly performing employees  will eventually work

            to the detriment of those who have a  legitimate need for the

            protection of  the laws."  Henry v.  Guest Servs., Inc.,  902
                                       _____     __________________

            F. Supp. 245,  254 (D.D.C.  1995), aff'd, 98  F.3d 646  (D.C.
                                               _____

            Cir. 1996).



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tends to militate against  making an inference of retaliation



            in a case like this one.



                      In  short, the  timing dictates  against concluding



            that  the request  for accommodation caused  the termination,



            and  nothing  else  provides  evidence  from  which  such  an



            inference may be drawn.  While the discipline  of termination



            was  swift, and even harsh,  the evidence does  not support a



            retaliation claim.



                      The entry of summary  judgment for the defendant is



            affirmed.
            ________


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