Tsetseranos v. Tech Prototype, Inc. CV-93-676-SD 04/10/95 P UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Cheryl Tsetseranos
v. Civil No. 93-676-SD
Tech Prototype, Inc.
O R D E R
In this civil action, plaintiff Cheryl Tsetseranos asserts
that her employment was terminated by Tech Prototype, Inc.,
because of her pregnancy and related medical conditions, in
violation of section 703(a)(1) of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Pregnancy
Discrimination Act, 42 U.S.C. § 2000e(k); Title I of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12117;
and New Hampshire Revised Statutes Annotated (RSA) 354-A:7.
Plaintiff also asserts a state-law claim for wrongful discharge.
Presently before the court are defendant's motion for
summary judgment and defendant's motion to amend its answer, to
which plaintiff objects.
Discussion
1. Summary Judgment Standard
Under Rule 56(c), Fed. R. Civ. P., summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law."
Summary judgment is a procedure that involves shifting burdens between the moving and the nonmoving parties. Initially, the onus falls upon the moving party to aver "'an absence of evidence to support the nonmoving party's case.'" Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (guoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party satisfies this reguirement, the pendulum swings back to the nonmoving party, who must oppose the motion by presenting facts that show that there is a "genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (citing Fed. R. Civ. P. 56(e)) . . . .
LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.
1993), cert, denied. ___ U.S. , 114 S. C t . 1398 (1994).
When [the nonmoving] party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial, there can no longer be a genuine issue as to any material fact: the failure of proof as to an essential element necessarily renders all other facts immaterial, and the moving party is entitled to judgment as a matter of law.
Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994)
(citing Celotex Corp., supra, 477 U.S. at 322-23), petition for
2 cert, filed, 63 U.S.L.W. 3644 (U.S. Feb. 21, 1995) (No. 94-1416).
"Even in an employment discrimination case, '"where elusive
concepts such as motive or intent are at issue, summary judgment
may be appropriate if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, and unsupported
speculation."'" Smith, supra, 40 F.3d at 13 (guoting Goldman v.
First N a t '1 Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)
(guoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
(1st Cir. 1990))).
In determining whether summary judgment is appropriate, the
court construes the evidence and draws all justifiable inferences
in the nonmoving party's favor. Anderson, supra, 477 U.S. at
255.
2. Plaintiff's Title VII Claim
Title VII prohibits discrimination in employment because of
or on the basis of sex. 42 U.S.C. § 2000e-2(a) (1994).1 In
1Section 2000e-2 (a) provides in relevant part:
It shall be an unlawful employment practice for an employer-- (1) . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . . (continued...)
3 1978, the Pregnancy Discrimination Act amended Title VII to
define the phrases "because of sex" and "on the basis of sex" to
include
because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . .
42 U.S.C. § 200Oe(k) .
The basic principle of the Pregnancy Discrimination Act "is
that women affected by pregnancy and related conditions must be
treated the same as other applicants and employees on the basis
of their ability or inability to work." 29 C.F.R. Pt. 1604, Ap p .
at 197 (1994). "In the area of fringe benefits, such as
disability benefits, sick leave and health insurance, the same
principle applies. A woman unable to work for pregnancy-related
reasons is entitled to disability benefits or sick leave on the
same basis as employees unable to work for other medical
(...continued)
2The Egual Employment Opportunity Commission (EEOC) regulations implementing the Pregnancy Discrimination Act provide in relevant part that " [d]isabilities caused or contributed to by (continued...)
4 Plaintiff alleges that she was terminated because of her
pregnancy and related medical conditions in violation of Title
VII, as amended by the Pregnancy Discrimination Act. As
plaintiff has produced no direct evidence of discrimination, the
court analyzes her claim under the now-familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) .
In applying the facts of this case to the McDonnell Douglas
analytical framework, the court is mindful of the Supreme Court's
oft-repeated admonition "that the Title VII plaintiff at all
times bears the 'ultimate burden of persuasion.'" St. Mary's
Honor Ctr. v. Hicks, ___ U.S. ___, ___ , 113 S. C t . 2742, 2479
(1993) .
a. Plaintiff's Prima Facie Case
The first stage of the McDonnell Douglas framework reguires
the plaintiff to make a prima facie showing of discrimination.
In order to meet this burden under Title VII, plaintiff
must show that (1) she is a member of a protected class; (2) she was performing her
2(...continued) pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any heath or disability insurance or sick leave plan available in connection with employment." 29 C.F.R. § 1604.10(b) (1994).
5 job at a level that rules out the possibility that she was fired for inadequate job performance; (3) she suffered an adverse job action by her employer; and (4) her employer sought a replacement for her with roughly equivalent qualifications.
Smith, supra, 40 F.3d at 15 (citing Mesnick v. General Elec. Co.,
950 F.2d 816, 823 (1st Cir. 1991), cert, denied, ___ U.S. ___,
112 S. C t . 2965 (1992)). The plaintiff's burden of making out
the prima facie case of discrimination is "'not onerous.'" Id.,
40 F.3d at 15 n.4 (quoting Mesnick, supra, 950 F.2d at 823).
In this case, it is undisputed that Tsetseranos was pregnant
and had ovarian cysts at the time of her termination.3 Further,
for the purposes of its summary judgment motion only, defendant
concedes that plaintiff was replaced by someone with roughly
equivalent qualifications.
Defendant asserts, however, that plaintiff cannot meet the
second element of her prima facie case: that she was performing
her job at a level that rules out the possibility that she was
fired for inadequate job performance. Because plaintiff's prima
3Defendant asserts that plaintiff cannot meet the first element of her prima facie case because Roger Somers, her immediate supervisor, had no knowledge of her pregnancy when he terminated her. However, at this stage, plaintiff's burden is limited to showing that she is a member of a protected class. Defendant's knowledge of plaintiff's pregnancy and related medical conditions is not relevant until the final stage of the McDonnell Douglas framework, when plaintiff is required to show that defendant terminated her because of her medical conditions.
6 facie burden is not onerous, the First Circuit has interpreted
the second element as requiring plaintiff to "put forth
sufficient evidence to 'support an inference that [the
plaintiff's] job performance at the time of her discharge was
adequate to meet [the employer's] legitimate needs.'" Smith,
supra, 40 F.3d at 15 n.4 (quoting Keislinq v. SER-Jobs for
Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994)) (alterations in
Smith) .
As proof of plaintiff's allegedly inadequate work
performance, defendant submits an evaluation of Tsetseranos dated
June 8, 1992. This evaluation indicates that Tsetseranos was
meeting the standard for her "ability to do job assigned" and
"productivity," but it also details problems in both of these
areas. Tsetseranos Evaluation at 1 (attached to Affidavit of
Roger Somers as Exhibit A). Further, plaintiff's cooperation,
attitude, and initiative were all rated "good," but her work
habits were characterized as "poor." Id. Her evaluator stated
in his comments.
Your work habits are affected by priority setting & organization problems. You must establish clear performance goals for the various aspects of your job so you can work smarter. You work very hard but mostly you are reacting to the phone or specific tasks as they come up rather than prioritizing and managing them systematically. This is very inefficient and wastes time.
7 Id.
In the overall comments section of the evaluation, the
evaluator states, "In preparing for this review I was
disappointed to discover that many of the issues I planned to
discuss were also corrective action items from our last review.
There has been improvement but you should have put many of these
issues behind you by now." Id. at 2. The evaluation concludes
with a list of nine problem areas for Tsetseranos to "work on."4
Id. at 3 .
The Employee Warning Report filled out by Somers on the day
of plaintiff's termination states, "There has been no change
4The nine problem areas listed in plaintiff's evaluation are:
- Better follow up on orders in process especially hot or orders being expedited. To be sure they are processed and shipped on time. (Use a condensed open order report to follow up on orders due in the next 5 to 10 days.) - Better communication of late orders info to customers--reguesting extensions in advance of due date. - Timely reports--late list--bookings report --monthly availability and schedules. - Establishing organization to routine duties to allow others to help. - Recording and prioritizing of reguests and tasks. - Improved follow up on reguests made to others. - Reducing phone time (socializing). - Sharply curtail personal phone calls. - Organize and manage the department for growth--don't be task oriented.
Tsetseranos Evaluation at 3.
8 since your review in level of mistakes[,] improved organization
(in spite of attending a seminar) and the files are a mess--not
reviewing P O 's has cost us many losses . . . Employee Warning
Report dated October 1, 1992 (attached to Somers Affidavit as
Exhibit B ) . The explanation given in the report for plaintiff's
discharge is, "No signs of improving or correcting problems."
Id.
To support her contention that she was adeguately performing
her job, plaintiff points first to her earnings history.
Plaintiff began working at Tech Prototype in May 1990 for $9.00
per hour or $18,720 per year. Affidavit of Cheryl (Tsetseranos)
Jeffrey I 2; ADP Employee Earnings Record for Cheryl Tsetseranos
(attached to Jeffrey Affidavit as Exhibit A ) . Plaintiff received
four raises in pay during the twenty-nine months she worked at
Tech Prototype. Id. When Tsetseranos was terminated on
October 1, 1992, she was earning $28,000 per year. Id.
Plaintiff states that following her June 8, 1992,
evaluation, she attended a seminar on "organizing and
prioritizing." She further states that "[d]uring the time period
between the organizational seminar that I attended and my
termination on October 1, 1992, no one at Tech Prototype ever
complained or spoke to me about inadeguate job performance."
Jeffrey Affidavit I 10.
Plaintiff also points to a conversation she had with Somers on September 28, 1992, three days before she was terminated. At
her deposition, plaintiff testified about this conversation as
follows:
Towards the end of the day, we [Tsetseranos and Somers], as usual, we always talk about how our day went, and I ended up sitting at his office and conversation just turned to how things were going with me, and I explained to him that things were going well and the report seemed to be on time because we had--we needed to have our reports, Monday reports on time. He asked if I started on my filing system, and I said, yes, and he asked me how far I got, and I started from A to C. Basically, he told me that he was satisfied with how everything was going. Roger is a very upbeat kind of man, and he was very pleased. Q Now, he was pleased based on what you told him, is that correct? A He was pleased in what he saw between what me and Joe were doing on the invoices, and the fact that he had not had to ask for any reports.
Deposition of Cheryl Jeffrey at 40 (attached to Plaintiff's
Obj ection) .
After a careful review of the evidence submitted by both
parties, the court finds that the evidence is sufficient to
support an inference that plaintiff's job performance was
adeguate to meet Tech Prototype's legitimate needs. This is
sufficient to meet plaintiff's relatively light burden at the
prima facie stage of her case. The court therefore finds that
plaintiff has made a prima facie showing of discrimination.
10 b. Employer's Rebuttal
"Under the McDonnell Douglas scheme, '[e]stablishment of the
prima facie case in effect creates a presumption that the
employer unlawfully discriminated against the employee.'" St.
Mary's Honor Ctr., supra, ___ U.S. at ___ , 113 S.C t . at 2747
(quoting Texas Pep't of Community Affairs v. Burdine, 450 U.S.
245, 254 (1981)). "However, to rebut this presumption, the
employer need only 'articulate a legitimate nondiscriminatory
reason for the employee's termination.'" LeBlanc, supra, 6 F.3d
at 842 (quoting Lawrence v. Northrop Corp., 980 F.2d 66, 69 (1st
Cir. 1992)) (emphasis in LeBlanc) .
"'The employer's burden at this stage is merely one of
production; the burden of persuasion remains plaintiff's at all
times.'" Woods v. Friction Materials, Inc., 30 F.3d 255, 260
(1st Cir. 1994) (quoting Lawrence, supra, 980 F.2d at 69). In
order to meet its burden of production, the defendant "'must
clearly set forth, through the introduction of admissible
evidence,' reasons for its actions which, if believed by the
trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action." St.
Mary's Honor Ctr., supra, ___ U.S. at ___ , 113 S.C t . at 2747
(quoting Burdine, supra, 450 U.S. at 254-55 & n.8) .
Plaintiff's immediate supervisor at Tech Prototype, Roger
Somers, states in his affidavit.
11 When Cheryl worked at Tech Prototype, Inc., she had problems with her organizational skills and filing. She also had problems prioritizing her tasks. In addition, she made mistakes in guoting prices to customers. The problems with her organizational skills were reflected in her performance review of June 8, 1992. In this performance review, Cheryl was admonished to improve her job performance in many areas. After the June review, the company sent Cheryl to a seminar on improving her job skills.
Somers Affidavit 55 3-4 (attached to Defendant's Motion). Somers
further states.
In late September, 1992, I met with Cheryl regarding the progress she had made in her filing and organization. Cheryl told me that she had made improvements and had begun organizing her filing system. I was pleased and hopeful that Cheryl was making the necessary strides to address the concerns I had. The day after Cheryl told me about the improvements she had made, she was out from work. I went into her office to get some information and discovered that Cheryl's office was a mess and the filing system was no better organized than it had ever been. I concluded that she had lied to me about the changes she had made. The level of organization did not meet the level expected of her. In addition to Cheryl's organizational shortcomings, there had been complaints from co-workers about her response to them and her inability to find information that she was responsible for filing, as well as Cheryl's misguoting prices to customers and timely invoicing. There were also customer complaints regarding prices. Prices misguoted by Cheryl resulted in lost revenue to the company.
Id. 55 5-6.
As a result of these problems, Somers decided that he "had
12 no choice but to terminate [plaintiff's] employment." Id. 5 7.
Somers further states that his "decision to terminate Cheryl
Tsetseranos was based entirely upon her unsatisfactory work
performance." Id. 5 9.
The court finds that defendant has met its burden of
production by offering evidence that plaintiff was terminated
because of her unsatisfactory work performance.
c. Proof of Discriminatory Animus
Once "the employer articulates a legitimate, non
discriminatory reason for its decision, . . . the presumption of
discrimination vanishes, and the burden of production shifts back
to the plaintiff." Smith, supra, 40 F.3d at 16. Then, at the
third and final stage of the McDonnell Douglas framework, the
plaintiff must "introduce sufficient evidence to support two
additional findings: (1) that the employer's articulated reason
for the job action is a pretext, and (2) that the true reason is
discriminatory." Id. (citing Woods, supra, 30 F.3d at 260).
"In this campaign, the facts that comprised plaintiff's
prima facie case may be considered, but the inference of
discrimination originally attributable to those facts no longer
pertains." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 720 (1st
Cir. 1994). In other words, "[t]he plaintiff may rely on the
same evidence to prove both pretext and discrimination, but the
13 evidence must be sufficient for a reasonable factfinder to infer
that the employer's decision was motivated by discriminatory
animus." Smith, supra, 40 F.3d at 16. "To carry the devoir of
persuasion on this ultimate issue, the plaintiff must identify
probative evidence suggesting that the reason given by the
employer for the employment action is pretextual, and, moreover,
that it is a pretext for [] discrimination." Sanchez, supra, 37
F.3d at 720 (footnote omitted). See also Woods, supra, 30 F.3d
at 260 (plaintiff cannot avert summary judgment at this stage "if
the record is devoid of adeguate direct or circumstantial
evidence of discriminatory animus on the part of the employer").
The evidence plaintiff relies on to meet her burden of
proving that Tech Prototype intentionally discriminated against
her is largely duplicative of the evidence she relies on at the
prima facie stage. First, plaintiff asserts that Roger Somers
knew about her pregnancy and her related medical problems when he
discharged her on October 1, 1992.
Plaintiff states that she told Somers in June or July of
1992 about her ovarian cysts, and maintains that Somers knew then
that she was going to reguire a disability leave at a future date
for surgery. Jeffrey Deposition at 45-46. Plaintiff further
states that she did not tell Somers about her pregnancy before he
terminated her, but that rumors were flying "throughout the
plant" that she was pregnant. Id. at 47. In addition, plaintiff
14 asserts that when she informed Somers that she was pregnant on
October 1, " [h]is comment to me was that he knew I was pregnant
and it didn't matter because pregnancy is a sickness, and
sickness is no reason not to be terminated." Id.
With respect to his knowledge of plaintiff's medical
conditions, Somers states that after he informed plaintiff of his
decision to terminate her employment,
she told me that she was pregnant. This was the first time that I had any knowledge that Cheryl was pregnant. . . . I had not known she was pregnant until after I made the decision to terminate her. I had known that she had ovarian cysts, although I did not know that they were possibly cancerous, but this fact played no part in my decision.
Somers Affidavit 55 8-9.
Construing this evidence in the light most favorable to
plaintiff, the court assumes for the purposes of ruling on
defendant's motion that Somers was aware that plaintiff was
pregnant at the time he terminated her.
Plaintiff next asserts that she was well liked by her fellow
employees and the customers with whom she worked,5 and that she
received four raises during the twenty-nine months she was
employed at Tech Prototype, including a raise just four months
5Defendant concedes that Tsetseranos "was well liked within the company and by customers." Somers Affidavit 5 7.
15 before she was fired.6 Plaintiff maintains that these facts are
inconsistent with defendant's contention that her job performance
was unsatisfactory.
In addition, plaintiff points to the discussion she had with
Somers a few days before she was fired as indicative of Somers'
satisfaction with her job performance. Plaintiff testified at
her deposition that during this meeting "I explained to [Somers]
that things were going well and the [Monday] report seemed to be
on time . . . . He asked if I started on my filing system, and I
said, yes, and he asked me how far I got, and I started from A to
C." Jeffrey Deposition at 40. Plaintiff further states that
Somers "was satisfied with how everything was going. Roger is a
very upbeat kind of man, and he was very pleased." Id.
Somers concedes that he met with plaintiff in late September
"regarding the progress she had made in her filing and
organization." Somers Affidavit 5 5. He states that at this
meeting, "Cheryl told me that she had made improvements and had
begun organizing her filing system. I was pleased and hopeful
that Cheryl was making the necessary strides to address the
concerns I had." Id. However, Somers further states.
The day after Cheryl told me about the improvement she had made, she was out from
6The court notes that plaintiff's fourth raise was effective the pay period ending June 6, 1992, which was prior to her June 8, 1992, evaluation. See ADP Employee Earnings Record for Cheryl Tsetseranos.
16 work. I went into her office to get some information and discovered that Cheryl's office was a mess and the filing system was no better organized than it had ever been. I concluded that she had lied to me about the changes she had made. The level of organization did not meet the level expected of her. In addition to Cheryl's organizational shortcomings, there had been complaints from co-workers about her response to them and her inability to find information that she was responsible for filing, as well as Cheryl's misguoting prices to customers and timely invoicing. There were also customer complaints regarding prices.
Id. 5 6. Based on these problems, Somers decided he "had no
choice but to terminate her employment." Id. 5 7.
On December 3, 1992, Somers wrote a letter to plaintiff, at
her reguest, reviewing the reasons for her dismissal. Somers
explains in this letter that, despite the June 8 evaluation which
indicated several areas for correction.
Unfortunately, since that time no extra effort was made. Outwardly you tried to give the impression of corrective change, but no real substantial change took place. The company funded organizational skills seminar you took in July, you said, gave you many good ideas, but again no real change took place.
Letter from Somers to Tsetseranos (attached to Somers Affidavit
as Exhibit D ) . Somers also states in the letter that.
Since your dismissal, we have had the opportunity to investigate the customer service area more closely. There have been many hours spent correcting all the problems found. This has been documented in the copies of your personnel file you reguested previously. These facts are what
17 precipitated your dismissal.
Further, Pamela Bodnar, the personnel manager at Tech
Prototype, states in her affidavit that she helped "straighten
out" plaintiff's office after plaintiff was terminated. The
documentation attached to Bodnar's affidavit shows that four
individuals, including Bodnar, worked off and on throughout the
month of October in order to organize plaintiff's office and have
it ready for someone else to step in to plaintiff's position.
Affidavit of Pamela Bodnar 5 8 (attached to Defendant's Motion);
Time Log (attached to Bodnar Affidavit as Exhibit B ) . Bodnar
further states that she "discovered a number of pricing errors
that Cheryl had made" while she was organizing plaintiff's
office. Bodnar Affidavit 5 10. Finally, Bodnar states, "In all
of my years working in an office environment, I have never seen a
mess as bad as the mess in Cheryl's office." Id. 5 11.
Plaintiff asserts that much of the documentation in her
personnel file about her job performance, such as that described
hereinabove, is dated after her October 1 termination and is
therefore not relevant to this court's analysis. However,
defendant's post-termination documentation of the many hours
plaintiff's co-workers spent organizing her office is consistent
with defendant's pre-termination documentation of plaintiff's
work performance problems. Accordingly, the court finds this
18 evidence to be relevant to the overall question of whether
defendant intentionally discriminated against plaintiff.
Plaintiff also contends that the timing of her termination
gives rise to an inference of discriminatory intent. Plaintiff
was fired on October 1, 1992, after she had been out several days
because of complications associated with her pregnancy.
Plaintiff maintains that defendant knew when it fired her that
she was going to rquire a disability leave in the near future for
surgery. Further, shortly after plaintiff's termination, she was
advised by her physician to stay out of work until further
advised.
The court agrees that the timing of plaintiff's termination,
standing alone, might support an inference of discriminatory
intent. However, the court is not required to consider
plaintiff's evidence on this issue in a vacuum. Here,
plaintiff's evidence regarding the timing of her termination must
be considered in conjunction with Pamela Bodnar's affidavit
stating that plaintiff was paid disability benefits for
approximately five and one-half months after her termination.
Bodnar Affidavit 5 2. Bodnar further states, "[t]his disability
compensation was the same compensation Cheryl would have received
if she had not been terminated." Id.
After careful review and consideration of all the evidence
presented by Tsetseranos, the court concludes that the evidence
19 is insufficient to allow a reasonable jury to find that
defendant's stated reason for terminating plaintiff, poor job
performance, was a pretext. The court further concludes that the
evidence is insufficient to allow a reasonable jury to infer that
discriminatory animus motivated defendant's decision to terminate
Tsetseranos. Defendant's motion for summary judgment is
therefore granted as to plaintiff's Title VII claim.
3. Plaintiff's ADA Claim
Title I of the ADA prohibits employers from discriminating
"against a gualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment." 42 U.S.C. § 12112(a) (Supp.
1995). A "gualified individual with a disability" is defined by
the ADA to mean "an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires." 42 U.S.C. § 12111(8).
In an employment discrimination claim brought under the ADA,
the court's evaluation of the plaintiff's evidence follows a
slightly modified version of the McDonnell Douglas framework.
See, e.g., Braverman v. Penobscot Shoe Co., 859 F. Supp. 596, 603
20 (D. Me. 1994) (applying the McDonnell Douglas framework to an ADA
claim for employment discrimination); Sherman v. Optical Imaging
Svs., Inc., 843 F. Supp. 1168, 1180-81 (E.D. Mich. 1994)
(applying the "prima facie case/legitimate, non-discriminatory
reason/pretext for discrimination analysis" to ADA claim for
employment discrimination).
In order to make out a prima facie case of employment
discrimination under the ADA, plaintiff must show that: (1) she
was "disabled" as defined by the ADA; (2) she was gualified, with
or without accommodation, to do her job as a customer service
representative; (3) she was discharged; and (4) she was replaced
by a nondisabled person. Sherman, supra, 843 F. Supp. at 1181.
Here, it is undisputed that plaintiff was pregnant and had
ovarian cysts or tumors that were complicating her pregnancy at
the time she was terminated. Plaintiff asserts that as a result
of these conditions she was "disabled" under the ADA.
The term "disability" is defined under the ADA to mean
with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
21 42 U.S.C. § 12102 (2) .7
The EEOC's "interpretive guidance" on Title I of the ADA
states, with respect to the determination of whether an
individual has a "physical or mental impairment," that "[i]t is
important to distinguish between conditions that are impairments
and physical, psychological, environmental, cultural and economic
characteristics that are not impairments." 29 C.F.R. Pt. 1630,
App. at 395 (1994). The regulations go on to state that
"conditions, such as pregnancy, that are not the result of a
physiological disorder are [] not impairments." Id. Further,
"temporary, non-chronic impairments of short duration, with
little or no long term or permanent impact, are usually not
disabilities." Id. at 396.
Based on these regulations, the court concludes that
pregnancy and related medical conditions do not, absent unusual
circumstances, constitute a "physical impairment" under the ADA.
Accordingly, pregnancy and related medical conditions are not
"disabilities" as that term is defined by the ADA. The court
finds this conclusion to be supported not only by the ADA's
definition of disability and the EEOC's interpretive guidance on
the ADA, but also by the fact that employment discrimination on
7"Major life activities" are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) .
22 the basis of pregnancy and related medical conditions is
specifically covered by Title VII and the Pregnancy
Discrimination Act. C f . Brennan v. National Tel. Directory
Corp., 850 F. Supp. 331, 341-44 (E.D. Pa. 1994) (holding, under
state laws modeled after Title VII and ADA, that pregnancy
discrimination is discrimination on the basis of sex, not
discrimination on the basis of a disability or handicap). This
coverage obviates the need for pregnancy-related discrimination
to also be covered under the ADA.
Although plaintiff's pregnancy was clearly complicated by
her ovarian cysts, and these complications reguired her to be out
of work for a period of time, the court finds that plaintiff's
pregnancy was not a "disability" under the ADA. Further, even
assuming that plaintiff's pregnancy and ovarian cyst problem
constitute a disability under the ADA, the court finds, for the
same reasons outlined in the court's analysis of plaintiff's
Title VII claim, supra, part 2.c., that plaintiff has not
produced sufficient evidence to establish a causal nexus between
her disability and defendant's decision to terminate her.
Defendant's motion for summary judgment is accordingly
granted as to plaintiff's ADA claim.8
8Having granted defendant's motion for summary judgment as to plaintiff's two federal claims, the court notes that it has the discretion to decline to exercise supplemental jurisdiction over plaintiff's state-law claims. See 28 U.S.C. § 1367(c)(3) (continued...)
23 4. RSA 354-A Claim
Plaintiff seeks relief under RSA 354-A:7, which makes it
unlawful for an employer to discriminate against an employee
because of "pregnancy and medical conditions which result from
pregnancy" or because of a physical disability. RSA 354-A:7, I
and VI (Supp. 1994).
RSA 354-A:7 is part of New Hampshire's "Law Against
Discrimination." See RSA 354-A:l. The law establishes an
administrative process through which a person claiming to be
aggrieved by an unlawful discriminatory practice can seek relief.
See RSA 354-A:21 (describing complaint procedure). Under the
statute, a complainant must go through the administrative process
and obtain an order or decision from the state's Human Rights
Commission before she can seek judicial review. In order to
obtain judicial review of a commission order or decision, the
complainant must file a petition "in the superior court of the
state within any county in which the unlawful practice . . .
occurs . . . ." RSA 354-A:22, I.
The statutory provision on judicial review further provides.
If the complainant brings an action in federal court arising out of the same claims of discrimination which formed the basis of an order or decision of the commission, such
8(•••continued) (1993). However, in light of the fact that discovery has been completed and this case stands ready for trial, the court will retain jurisdiction over the remaining state-law claims.
24 order or decision shall be vacated and any appeal therefrom pending in any state court shall be dismissed.
RSA 354-A:22, V.
The court's review of the plain language of RSA 354-A leads
the court to conclude that the statute does not create a private
right of action for individuals aggrieved by unlawful
discriminatory practices. Instead, under RSA 354-A, such
individuals are limited to seeking relief through the
administrative process created by the statute and to obtaining
judicial review of the results thereof in state court. The court
therefore concludes that it is without jurisdiction over any
claim plaintiff has under RSA 354-A. Plaintiff's RSA 354-A claim
is accordingly dismissed.
5. Plaintiff's Wrongful Discharge Claim
In Count IV of her complaint, plaintiff alleges that her
discharge was motivated by bad faith, malice, and retaliation
because plaintiff sought benefits and leave due to her disability
and pregnancy. Plaintiff further alleges that her actions were
ones that public policy supports and condones.
In order to maintain a wrongful discharge claim under New
Hampshire law, a plaintiff must establish two elements:
one, that the employer terminated the employment out of bad faith, malice, or retaliation; and two, that the employer terminated the employment because the
25 employee performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn.
Short v. School Admin. Unit No. 16, 136 N.H. 76, 84, 612 A.2d
364, 370 (1992) (citing Cloutier v. A & P Tea Co., Inc., 121 N.H.
915, 921-22, 436 A.2d 1140, 1143-44 (1981)).
With respect to the first element, plaintiff submits
evidence showing that defendant knew she reguired disability
leave due to her pregnancy and ovarian cysts at the time she was
discharged. Plaintiff submits that in July or August of 1992, in
order to ascertain the scope of her medical coverage, she
informed Pamela Bodnar that she was pregnant and had ovarian
tumors or cysts that were potentially cancerous. Jeffrey
Affidavit 5 3; Jeffrey Deposition at 35.
Bodnar states in her affidavit that "Cheryl told me in
September, 1992 that she may have to go out on disability leave
because of possible problems with her cysts and complications
that might affect her pregnancy." Affidavit of Pamela Bodnar 5 2
(attached to Defendant's Motion). Bodnar also testified at her
deposition that Roger Somers had communicated to her in the
spring of 1992 "[t]hat Cheryl was going to have to go on medical
leave, and he wasn't certain the amount of time she was going to
be out, but we would have to get coverage [for her work]."
Deposition of Pamela J. Bodnar at 19 (attached to Plaintiff's
26 On Tuesday, September 29, 1992, plaintiff left work to go to
a doctor's appointment she had scheduled because she was feeling
"very ill." Jeffrey Affidavit 5 7. After her examination,
plaintiff's doctor advised her "to stay out of work and at
bedrest for two (2) days." Letter from Thomas J. Barrett, M.D.,
dated September 29, 1992 (attached to Jeffrey Affidavit as
Exhibit B ) . Plaintiff called Pamela Bodnar on Wednesday,
September 30, to inform her that she would be out of work until
Friday, October 2. Jeffrey Affidavit 5 8. Plaintiff also
informed Bodnar that she "would be bringing in a doctor's note to
that effect on Thursday, October 1, 1992." Id.
Plaintiff was terminated by Roger Somers on October 1, 1992.
Less than two weeks after her termination, plaintiff received a
note from her physician stating, "Cheryl Tsetseranos is a patient
in this office. She is pregnant and due for delivery on
February 13, 1993. Cheryl has been advised to stay out of work
and at rest until further advised. If you have any guestions,
please feel free to contact our office at your convenience."
Letter from Thomas J. Antisdel, M.D., dated October 12, 1992
(attached to Jeffrey Affidavit as Exhibit B ) .
According to Bodnar, "After Cheryl's termination, she was
paid disability benefits for approximately five and one-half (5
1/2) months. This disability compensation was the same
compensation Cheryl would have received if she had not been
27 terminated." Bodnar Affidavit 5 5.
Tsetseranos asserts that her termination was motivated by
bad faith, malice, and retaliation because she sought medical
benefits and leave due to her disability and pregnancy. However,
plaintiff received the same disability benefits from defendant
following her discharge as she would have received if she had not
been terminated.
Under these circumstances, the court concludes that no
reasonable jury could find that defendant terminated plaintiff
out of bad faith or malice, or in retaliation for her seeking
medical benefits and disability leave. Defendant's motion for
summary judgment is therefore granted as to plaintiff's wrongful
discharge claim.
Conclusion
For the reasons set forth herein, defendant's motion for
summary judgment (document 13) is granted, and defendant's motion
to amend its answer (document 18) is denied as moot. The clerk's
office shall enter judgment accordingly.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
April 10, 1995
cc: Robert E. Jauron, Esg. Randall E. Wilbert, Esg.