Florida Decisions Without Published Opinions Man.den.
.44. Hartt objects to the statement on the ground that the document in question is hearsay, asserting that the document has "never been introduced through
any credible witness" and that "nothing in the discovery record is sufficient to establish its admissibility." (DRS ¶ 33.) In his next statement, Mr. Brown relates that Hartt is self-insured for purposes of medical insurance. (PAS ¶ 34.) Hartt qualifies this statement and cites the Declaration of Joanna Bradeen, who avers that Hartt is self-insured up to $40,000 per covered individual. (DRS ¶ 34; Bradeen Decl. ¶ 6, Doc. No. 46-1.) In her Declaration, Ms. Bradeen states that she has reviewed the document HARTT 000795, that Diversified Administration Corporation is Hartt's third-party insurance administrator, and that the document does not reflect payments by Hartt in the amount of $188,000. (Bradeen Decl. ¶ 3.) She does not deny the authenticity of the document, but explains that Hartt paid only $40,519.11 in connection with Brown's medical care. (
Id. ¶ 4.) Mr. Brown is satisfied if the record reflects that his heart attack cost Hartt $40,000, which is what I find based on this record. (Pl.'s Surreply ¶ 33, Doc. No. 48.)
According to Mr. Brown, Mr. Castonguay told him that when someone has a serious medical condition it costs Hartt a lot of money. (PAS ¶ 35.) Hartt denies this statement with an affidavit from Castonguay. For purposes of summary judgment, Brown's testimony is credited. Hartt argues that this testimony cannot be credited because Brown previously testified at his deposition that no one at Hartt ever said he was terminated because of medical costs related to his health. It is true that Brown so testified. However, Brown also testified at his deposition that Castonguay told him that employee medical conditions cost the company a lot of money. (Brown Dep. at 240:8-23.) These two statements are not inconsistent and can both be credited for summary judgment purposes.
Prior to Mr. Brown's heart attack, Mr. Castonguay never discussed with Brown the possibility of replacing Brown or restructuring the Sales Department. (PAS ¶ 36.) At his initial deposition, Castonguay testified that he had some informal discussions with Mr. Hartt about replacing Brown or restructuring the sales department, that these discussions occurred "[p]robably late August and then they intensified as the year continued," and that there is no written record of any such conversations. (Id. ¶ 37; Castonguay Dep. at 166:5-22, Doc. No. 25-1.)
Brown states: "When Brown requested a copy of his personnel file on March 1, 2007, Hartt failed to provide him with memoranda for October 2005, November 2005, week of June 10, 2006, week of August 26, 2006, and week of October 30, 2006 purportedly memorializing performance issues by Brown prior to Brown's heart attack." (PAS ¶ 38.) Hartt admits this fact "with objection." Hartt complains that Brown has cited the Maine Human Rights Commission Investigator's Report (Doc. No. 43-2), which is hearsay and is not admissible evidence as the record lacks supportive testimony establishing its admissibility. Brown also cites his own deposition testimony in support of the statement, but that is to the effect that he believes all of the "typed up notes" and "documents" are "fraudulent and something that Jeff [Castonguay] cooked up just to help defend this case." (Brown Dep. at 178:20-25.) In a surreply filing in response to the objection, Brown cites Rule 803(8)(C) of the Federal Rules of Evidence and supplies an affidavit from his counsel to the effect that the Report was provided to him as counsel to Brown as part of the administrative process. (Supplemental Decl. of Jeffrey Neil Young ¶ 2, Doc. No. 49.) I overrule the objection and treat the finding as a material fact for purposes of summary judgment.
Hartt has not requested summary judgment against the claim that it failed to comply with Section 631 of the Maine Employment Practices Act.
Sometime in late 2006, Mr. Castonguay discussed with Mr. Michaud for the first time the possibility of Michaud becoming Director of Sales at Hartt. (PAS ¶ 39.) This conversation occurred at a time when Hartt did not know if Brown would be returning to work from his heart attack. (Id. ¶ 40.) Mr. Castonguay decided to promote Michaud during Brown's medical leave of absence. (Id. ¶ 41.) Hartt acknowledges that Michaud's move to Sales Director was a promotion. (Id. ¶ 42.)
Hartt announced Mr. Michaud's promotion to some employees in an email dated January 4, 2007, but did not copy Mr. Brown on the email or inform Brown of Michaud's promotion until Brown visited the office on January 15, 2007, and found Michaud at his desk. In the email announcing Michaud's promotion, Hartt also announced that Ricky Hughes had been transferred from brokerage to the sales department where he would work under Michaud's direction. (Id. ¶¶ 43, 45.) At the time of Brown's departure on leave, the Sales Department was composed of two full-time employees, Sales Director Kevin Brown and salesman Dan Michaud, plus a part-time employee, Dick Rideout, who was semi-retired. (Id. ¶ 46.)
Mr. Brown called in to the office on virtually a daily basis while he was on leave. Although he spoke to Mr. Michaud, Michaud did not mention Michaud's promotion or Brown's demotion. (Id. ¶ 44.) On January 15, 2007, Brown stopped in at Hartt to drop off some papers prior to a doctor's appointment and found that Michaud was working in Brown's former office at his former desk, that a second desk was added to the office for Ricky Hughes, and that Brown's personal belongings were in a box in the corner. (Id. ¶¶ 47-48.) Michaud informed Brown that Michaud had been promoted and Brown demoted to a salesperson. (Id. ¶ 49.) According to Brown, Michaud also indicated that Hughes would be taking Michaud's former position. (Id. ¶ 51.) At that time Brown told Michaud that he would not take his position without a court battle. (Id. ¶ 50.)
Later that day, Mr. Brown met with Mr. Castonguay and Castonguay encouraged Brown to remain out on short-term disability benefits. Brown stated that he might not get a full release to return until February or March. According to Brown's testimony, Castonguay said that he thought Brown always wanted to retire. Brown also testified that Castonguay claimed that the changes in the office were for Brown's benefit because they would reduce the stress level if he returned and that Castonguay also stated that, if Brown remained out on short-term disability, Hartt would supplement his income by paying the difference between the STD benefit and his normal salary during that time. (Id. ¶¶ 52-56.) Hartt denies that any "restructuring" at the office was motivated by Brown's health needs, "since the decision makers had no idea if Mr. Brown would ever return to work for Hartt." (DRS ¶ 55.) During this meeting, Castonguay made no mention of the quality of Brown's work when he explained why Brown was not being restored to his position as Director of Sales. (PAS ¶ 57.) Toward the end of their conversation, Brown told Castonguay that Hartt's decision to demote him was illegal. (Id. ¶ 58; Brown Dep. at 192, Doc. No. 24-1.) Brown told Castonguay that he wanted to return to work and Hartt stopped supplementing his short-term disability benefit as of "that day." (PAS ¶ 60; Brown Dep. at 192.) Brown asserts in his Additional Statement that the supplemental payments were discontinued as of the January 15 meeting. Hartt responds with a qualification stating that the decision to discontinue payments was not causally connected to Brown's desire to return or anything that Brown said about the legality of the changes, without denying that the payments were discontinued as of January 15 (Brown returned to work January 22). (DRS ¶ 60.) I interpret this as an acknowledgement that the supplemental payments did not extend past January 15. As of that date, Hartt understood that Brown intended to return to work, but there is no indication that it knew when he would be cleared to return. Thus, the summary judgment papers reflect that Hartt withdrew the supplemental payments for the balance of the January 15 work week, as Brown did not return to work until January 22.
I overrule another materiality objection here.
In a memo concerning the January 15 meeting, Mr. Castonguay wrote: "We were hesitant to make Kevin aware of this decision up to today because we were concerned about his fragile state health wise in also hearing he had another heart attack a few weeks after his surgery." (PAS ¶ 59.)
A few days after the January 15 meeting with Mr. Castonguay, Mr. Brown arranged a meeting with Mr. Hartt. Brown offers a statement that Hartt told him at the meeting "that Hartt had lost money like no other time while Brown was out on leave." (Id. ¶ 61, citing Brown Dep. 196:8-20.) Hartt denies the statement, citing Mr. Hartt's deposition transcript. Ordinarily, Brown's testimony would be credited for summary judgment. However, Brown's testimony does not support his summary judgment statement:
Q. What do you remember about that meeting?
A. While I was out they had lost money like no other time. He told me during that meeting that he and Jeff had not been happy with my work performance. . . .
(Brown Dep. at 196:19-21.) At his deposition, Brown asserted that Hartt had lost money during his absence. Brown did not testify that Mr. Hartt told him that Hartt had lost money. Consequently, I do not credit Statement 61.
Hartt would not allow Mr. Brown to return to work until he received an unconditional release with no restrictions. (PAS ¶ 62.) Dr. Bruehl released Brown to return to work on January 17, 2007. (Id. ¶ 63.) Although Dr. Bruehl ostensibly released Mr. Brown with no restrictions on January 17, 2007, he told Brown that he did not want him to engage in heavy lifting, which was not a requirement of Brown's sales work. (Id. ¶ 64.) Dr. Bruehl has characterized Brown as having an elevated risk of sudden death following his heart attacks, including in the time frame of his return to work. (Id. ¶ 65.) Upon his return to work, Brown still had to complete a cardiac rehabilitation program that required attendance two to three times per week. (Id. ¶ 66.) This physical therapy was ongoing at the time of Brown's termination. (Id. ¶ 67.)
Upon his return to work, Mr. Brown was situated at Mr. Michaud's former desk in an office outside of where Brown formerly had been located by himself. This new office space was less private than his former office. (Id. ¶¶ 69-70.) As a salesperson, Mr. Brown now reported to Mr. Michaud rather than having supervisory authority over Michaud and the Sales Department. (Id. ¶ 73.) Hartt admits that Brown's new job as a salesman was less prestigious than his job as Director. (Id. ¶ 76.) Brown no longer was responsible for disciplinary action regarding the Sales Department support staff. (Id. ¶ 74.) Brown also had less control over his day to day work. (Id. ¶ 75.) The Chevy Avalanche was no longer assigned for his use, but instead he was assigned a less significant Chevy pickup. (Id. ¶ 77.)
According to Brown, the loss of his former van customers and the requirement that he concentrate his efforts of Hartt's flatbed business (Id. ¶¶ 78-79) was another adverse condition imposed upon his return. The flatbed business in Maine is mostly seasonal work associated primarily with building and construction products. (Id. ¶ 80.) Hartt offers a qualification that the seasonal nature of the business does not mean that there is little for sales personnel to do during the winter season. (DRS ¶ 80.) It is undisputed that Hartt's flatbed business was losing money and was underperforming; that the flatbed portion of the business had not made any money in 20-25 years; that flatbed business had been discontinued for some 15 years and was only resumed in 2003; that Hartt lost $142,648 on flatbed business in 2004, $538,000 in 2005, $196,574 in 2006, $658,888 in 2007, and $82,855 in 2008; and that flatbed business at Hartt was "somewhere near a wash" in 2009. (PAS ¶¶ 81-89.)
I have overruled materiality objections to Additional Statements 81-89.
On Mr. Brown's first day back to work, late in the afternoon, Mr. Michaud directed Brown to prepare a list of lumber yards for potential flatbed customers. This list was prepared and Michaud told Brown that he wanted Brown to make calls on the listed lumberyards. Michaud told Brown that Brown was expected to make 5-6 face-to-face flatbed calls per day. Before calling on the flatbed prospects, Brown reviewed company files for information that Hartt already had on hand. Brown was to have a company vehicle to use for making sales calls and he had that vehicle available by his third day back. (Id. ¶¶ 90-97.) Hartt asserts by way of qualification that Brown would have needed a few days to "get his act together," do some preliminary work, and prepare a strategy for his forthcoming sales calls. (DRS ¶ 97.)
Mr. Brown states that the calls he made the first week back generated new and additional business for Hartt. (PAS ¶ 99.) He cites a portion of Mr. Michaud's continued deposition transcript that is not particularly helpful in drawing that conclusion and Hartt denies the statement for that reason. Mr. Michaud's testimony supports an inference that Mr. Brown's work in January more likely than not generated some business "activity" the following season. (Michaud Cont'd Dep. at 19:5-8, 20:16-20, 21:20, 22:10-23:5.)
In an email to Mr. Brown dated January 25, 2007, Mr. Michaud requested that Mr. Brown provide him with the following information about his sales calls: shipper name, contact, telephone number, and pricing required for various traffic lanes to secure business; and broker names, contacts, and pricing required to secure business. (PAS ¶ 100.) Sales call reports in the record demonstrate that Brown followed the format for the information Michaud requested (PAS ¶ 101), though there is generally no entry for "pricing required for various traffic lanes to secure business." (See Hartt's Summary Judgment Ex. I, Doc. Nos. 29-4 30-1 ("Exs. 74-77").) Hartt denies the statement for this reason and critiques the quality or usefulness of the information Brown obtained. (DRS ¶ 101.)
The only discussion that Mr. Castonguay had with Mr. Michaud about Mr. Brown's activities during week two of Brown's return occurred on Friday, February 2, 2007, when Castonguay asked Michaud to obtain information from Brown concerning Brown's activities during the week. (PAS ¶ 102.) After Mr. Hartt's discussion with Brown about Hartt's expectations on Brown's first day back at work, Mr. Hartt had no further discussions with Brown about his performance prior to Brown's termination. (Id. ¶ 106.) By comparison, prior to the medical leave, Brown had lunch with Castonguay and Hartt virtually daily. (Id. ¶ 107.) Brown has testified that Castonguay and Hartt "pretty much" didn't even speak to him anymore and that Michaud and Hughes would decline his inquiries whether they wanted to go to lunch with him. (Id. ¶ 108.) For summary judgment purposes, this statement overrides Hartt's denial to the effect that Brown isolated himself. (DRS ¶ 108.) Castonguay never spoke to Brown during both the second or third week about Castonguay's purported concerns with Brown's performance. (PAS ¶ 110.) Castonguay does not "even think we said hello." (Castonguay Cont'd Dep. at 279:11-15, Doc. No. 27-3.)
I overrule yet another materiality objection, puzzled as to why it was asserted.
Brown offers a statement to the effect that Hartt closely scrutinized his performance looking for errors after he returned, which repeats a line from his summary judgment affidavit. (PAS ¶ 109.) Hartt qualifies this statement, cites its own witnesses, and argues that Michaud monitored Brown closely because of Brown's poor demeanor and performance. (DRS ¶ 110.)
Mr. Brown had a number of "cardio-rehab" appointments scheduled for the week he was terminated. Mr. Hartt, Mr. Castonguay, and Mr. Michaud were all aware of these appointments. On Monday, February 12, 2007, at 3:44 PM, Mr. Brown emailed Michaud a report of his activities during the third week of his employment following his return to Hartt. Less than an hour after receiving Brown's report, Michaud told Brown he was terminated. Brown and Michaud were the only two people present when this was communicated. (PAS ¶¶ 112-115.) Michaud did not offer any explanation for the termination to Brown other than to say: "We don't need you anymore. You must have seen this coming." (Id. ¶ 116.) Hartt did not give Brown a letter explaining the termination. (Id. ¶ 117.)
I overrule another materiality objection here.
At his deposition, Mr. Brown testified that he anticipated being fired after his return because it "wasn't the first time" he had seen "[s]omeone come back from medical leave and only be around a very short amount of time." (Brown Dep. at 223:5-12, cited in PAS ¶ 121.) Mr. Brown offers testimony from a Mr. Peter Freeman, who hauled freight for Hartt for roughly eight years, that is much to the same effect. (Freeman Dep. at 26, 28-29, 36-38, Doc. No. 43-4, cited in PAS ¶ 122.) I consider this testimony to be unreliable for purposes of the discriminatory motive issue. Even if the Court accepts as true that some employees separated from employment after returns from medical leave, this evidence is not sufficient to support an inference of illegal conduct on Hartt's part.
Brown also testified about Hartt's termination of a former employee named Darlene Frati who worked in the Sales Department. According to Brown, Ms. Frati's husband suffered a heart attack and thereafter Mr. Castonguay instructed Brown to "build a file on her" and "put everything in it . . . so I can get rid of her." (Brown Dep. at 321:23-323:6, cited in PAS 104.) Hartt denies the statement with opposing testimony from Castonguay. I decline to draw an inference from Brown's deposition testimony that Castonguay's requests began after Frati's husband had a heart attack. When asked whether Castonguay's request was "somehow related to her husband having the stroke and requiring care," Brown testified: "I don't know that it was related" and "I'm not sure why he wanted her gone but he wanted her gone." (Id. at 321:23-322:2.) Although he need not be certain of Castonguay's intentions in order for this testimony to support a material inference, Brown also could not recollect when Castonguay made the request. (Id. at 323:19-22.) In this regard, it is not apparent from Brown's deposition testimony that the request did not predate the medical event experienced by Frati's husband. (Id. at 324:5-6: "I didn't refuse to do it but as time went on after her husband had a stroke I wouldn't do it.") If the request predated the medical event, the request would not demonstrate any animus toward an employee with significant family medical issues.
SUMMARY JUDGMENT STANDARD
A party moving for summary judgment is entitled to judgment in its favor only "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if its resolution would "affect the outcome of the suit under the governing law," and the dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing the record for a genuine issue of material fact, the Court must view the summary judgment facts in the light most favorable to the nonmoving party and credit all favorable inferences that might reasonably be drawn from the facts without resort to speculation.Merch. Ins. Co. v. U.S. Fid. Guar. Co., 143 F.3d 5, 7 (1st Cir. 1998). If such facts and inferences could support a favorable verdict for the nonmoving party, then there is a trial-worthy controversy and summary judgment must be denied. ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002).
DISCUSSION
Kevin Brown asserts eight counts in his complaint. Hartt Transportation argues that it is entitled to summary judgment as a matter of law against all claims but the last, for reasons discussed below. For purposes of discussion, I group the claims and discuss them in the following order: First, counts IV and VI (the interference/reinstatement claims) and counts V and VII (the retaliation claims) under the Family Medical Leave Act and Maine Family Medical Leave Requirements. Second, counts I and III (the Americans with Disabilities Act and Maine Human Rights Act discrimination claims). Counts II and VIII are not discussed because Brown concedes that summary judgment should enter against Count II (the Rehabilitation Act claim) and Hartt has not requested summary judgment against Count VIII. Based on my review of the record and the applicable legal standards, I conclude that genuine issues of material fact prevent an award of summary judgment on the contested claims.
A. Family Medical Leave Claims
The Family Medical Leave Act prohibits employers from interfering with certain rights guaranteed under the Act. 29 U.S.C. § 2615. As interpreted by the First Circuit, the prohibitions against "interference" break down into two categories. The first category involves employee entitlements prescribed by the Act. It is unlawful for an employer to deny these entitlements to its workers and the employer can be liable for non-compliance, whether or not the employer's non-compliance is motivated by bias against employees who take advantage of their leave rights. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). The second category involves employer conduct specifically proscribed by the Act. Under this category fall acts by the employer amounting to leave-related discrimination or retaliation. The Act prohibits employers from discriminating against employees for opposing violations of the Act and prohibits employers from retaliating (or otherwise discriminating) against employees who exercise their leave-related rights. Id. at 159-60. Proof of discriminatory animus is necessary with the second category of claims. Id. at 160. See also Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330-31 (1st Cir. 2005).
The Maine Family Medical Leave Requirements (MFMLR) are to the same effect. See 26 M.R.S. §§ 845(1) (requiring "restoration" to an equivalent position upon return from qualifying leave unless "the employer proves that the employee was not restored . . . because of conditions unrelated to the employee's exercise of rights") 847 (prohibiting "interference or denial" of rights, "discrimination against exercise of rights," and "discrimination against opposition"). I treat the MFMLR claims as coextensive with the FMLA claims, including both the prescriptive and proscriptive categories outlined by the First Circuit in relation to the FMLA.
Mr. Brown advances claims in both categories. For reasons that follow, I conclude that genuine issues of material fact preclude summary judgment in favor of Hartt because a fact finder could reasonably conclude from the evidence that Brown was not restored to an equivalent position following his return from qualifying leave, achieved persona non grata status based on his exercise of FMLA and MFMLR rights and opposition to his demotion, and suffered a retaliatory demotion and subsequent discharge based on his exercise of rights and/or opposition to Hartt's failure to honor those rights.
Hartt does not dispute that Brown's leave was qualifying leave under either the FMLA or the MFLMR.
1. Interference with Family Medical Leave (Counts IV and VI)
Mr. Brown asserts that Hartt violated the FMLA by failing to reinstate him to the same or equivalent position upon his return from leave. (Opp'n Mem. at 5-6; Compl. Counts IV VI.) Among the rights prescribed by the FMLA is the right "to be reinstated to the same position or an alternate position with equivalent pay, benefits, and working conditions," upon return from qualifying leave. Hodgens, 144 F.3d at 159 (citing 29 U.S.C. § 2614(a)(1); 29 C.F.R. §§ 825.100(c)). As to this right, "the employer's subjective intent is not relevant" and the issue is "simply" whether the employer provided the entitlement in question. Id. Hartt argues that it is entitled to summary judgment on this claim because Brown was restored to a position with the same pay and benefits and would have been demoted from managing or directing the Sales Department regardless of his medical leave. (Mot. at 5-8.)
Brown easily raises a genuine issue of fact whether he was restored to an equivalent position upon his return from leave. In addition to equal pay and benefits, an equivalent position is one that affords "virtually identical" conditions of employment, "including privileges, perquisites and status." 29 C.F.R. § 825.215(a). The record is sufficient to demonstrate that (1) Brown's status was reduced in that he became subordinate to Michaud and subject to Michaud's orders; (2) both Michaud and a new member of the sales department staff had taken over Michaud's former office; (3) Brown's involvement with his former sales accounts was reduced as a consequence of directions that he devote essentially all of his time to making sales calls out of the office for an underperforming sector of the business, while the new member of Sales took over Michaud's former duties; (4) Brown's post-leave company vehicle had reduced status; and (5) Brown's access to Hartt's general manager and president was essentially nil post-leave, whereas pre-leave he would lunch with and have more regular association with them. Taken together, these changes in Brown's position, status, privileges and perquisites are sufficient to demonstrate that he was not restored to an equivalent position upon his return from leave. The question is where the claim goes from there.
The FMLA provides that the right to reinstatement, or "restoration," does not entitle a restored employee to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 2614(a)(3). Hartt also cites a regulation to the same effect. 29 C.F.R. § 825.216. That regulation states that the burden falls on the employer to prove that the right, benefit, or position would have been taken away regardless of leave. Id. § 825.216(a)(1). Hartt itself states that it "must show that its decision . . . was finalized before [Brown] . . . commenced FMLA leave or noticed his intent to return." (Mot. at 7, citingPatterson v. Alltel Info. Servs., Inc., 919 F. Supp. 500, 505 n. 9 (D. Me. 1996).) In support of its bid for summary judgment, Hartt maintains it is undisputed that Brown had performance issues prior to his leave, that Mr. Hartt and Mr. Castonguay perceived Michaud as stronger in several performance areas in comparison to Brown, and that the decision was made before Hartt and Castonguay knew of Brown's intention to return. (Mot. at 7-8.) For reasons set out in the subsequent discussion of Brown's retaliatory/discriminatory discharge claims, I conclude that the record raises genuine issues that preclude judgment on Hartt's defense to the interference claims set out in Counts IV and VI.
2. Family Medical Leave Discrimination/Retaliation (Counts V and VII)
To succeed with his FMLA and MFMLR discrimination claims, Brown must demonstrate that Hartt's decisions to demote and fire him were motivated by retaliatory animus arising from his exercise of rights protected by the FMLA and MFMLR. Colburn, 429 F.3d at 335;Hodgens, 144 F.3d at 160. The claims are analyzed in accordance with the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), except where direct evidence of animus is available. Colburn, 429 F.3d at 335;Hodgens, 144 F.3d at 160.
The first step in the process requires the plaintiff to demonstrate that he has a prima facie case, which consists of evidence that "(1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; (3) there is a causal connection between the employee's protected activity and the employer's adverse employment action."Hodgens, 144 F.3d at 161. Hartt makes passing reference to the prima facie case requirement but does not argue that Brown cannot satisfy it. My assessment is that Brown easily satisfies the standard. First, it is undisputed that Brown took qualifying leave. Second, for reasons discussed in the previous section, Brown was adversely affected by a demotion while he was on leave and by a termination shortly after his return from leave. Third, and finally, the record permits an inference of a prima facie causal connection because of the close temporal connection between Brown's leave and his demoted status, the imposition of more onerous work conditions following his protests, and the close temporal connection between his protests and his termination.Calero-Cerezo v. United States DOJ, 355 F.3d 6, 25 (1st Cir. 2004). Because Brown satisfies his initial burden, Hartt must articulate a legitimate, non-retaliatory justification for its decisions to demote and fire Brown.
As for the decision to demote Brown, Hartt's position is, essentially, that Mr. Castonguay and Mr. Hartt had begun to discuss making Mr. Michaud Director of Sales in May of 2006, prior to Mr. Brown's leave, perceiving Michaud to be the sales employee who did most of the work, but that they did not get around to implementing any related employment actions until Mr. Brown's leave of absence. In its motion, Hartt cites paragraphs 24, 34-35, and 66 of its Statement of Material Facts. (Mot. at 10.) I assume that these record references suffice to carry Hartt's limited burden of production on the demotion decision, although I am somewhat concerned that Hartt did not clearly set forth a "legitimate justification" paragraph in its Statement of Material Facts. As for the decision to relegate Brown to flatbed calls upon his return, Hartt states that Mr. Castonguay considered Brown to have a special talent for soliciting information from prospective customers. (DSMF ¶ 65.) As for the decision to terminate Brown, Hartt relies on desultory performance, poor follow through, and failure to follow proper procedure. (Id. ¶¶ 97-100.) Hartt satisfies its burden of articulating legitimate explanations for the various adverse actions it imposed on Mr. Brown. Consequently, the burden returns to Brown, who must now demonstrate that Hartt's justifications are pretexts designed to mask discriminatory or retaliatory animus. Calero-Cerezo, 355 F.3d at 26; Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003).
In its motion, for example, Hartt states that "like most private employers, [it] is always searching for greater sales and more productive ways to conduct its business" (Mot. at 10), but there is no clear statement to the effect that Brown's demotion was required in order to achieve a more productive sales department.
Demonstrating pretext in the context of the McDonnell Douglas framework is the customary way of overcoming a summary judgment motion disputing the existence of any discriminatory motive. This can be done by showing that the movant's stated justifications could be regarded by the fact finder as specious because they are weak, implausible, inconsistent and contradictory, or perhaps even incoherent. Hodgens, 144 F.3d at 168. Evidence of close temporal proximity between two events is also probative of a causal connection. Id. Additionally, the historical background to a decision (or lack thereof), the use of a particular evaluative process, contemporaneous statements by decision makers, and evidence of unfairness can all be called upon to help raise an issue as to the existence of discriminatory motive. Id. at 168-69.
Brown raises a genuine issue as to the existence of retaliatory and discriminatory animus with his combined factual presentation. At the foundation of this presentation is a very strong temporal proximity. Added to this are facts that call into question Hartt's assertion that demotion was inevitable. Hartt states that the intention to demote Brown or promote Michaud was forming in June of 2006, but the evidence would permit findings that Mr. Castonguay spoke positively of company profitability with Brown at that time, that no significant performance issues were raised with Brown at that time or previously, and that Michaud did not complain about unfair workloads subsequent to June 2006. Moreover, in its Statement, Hartt attempts to create the impression that Brown and Michaud were really a team of relative equals, yet if that was so, it begs the question why Hartt was so determined to place Brown under Michaud's constant supervision upon his return and why Hartt tasked Brown with making sales calls almost entirely devoted to flatbed freight, an underperforming sector of its business, during the off season, while grooming a new-comer to the Department to assume Michaud's accounts or former duties. On top of these circumstances, Hartt never offers a statement, supported by the testimony of its decision makers, to the effect that it was reasonable to instruct Brown to make 5 or 6 face-to-face sales calls per day while trying to schedule roughly 25 more for the following week. Hartt merely relates that Brown was instructed to do so and that Brown thought the assignment was unreasonable. (DSMF ¶¶ 83, 93.) This aspect of the record supports an inference that the assignment was unreasonable. A reasonable fact finder could regard these changes in Brown's work conditions as retaliatory or discriminatory measures and not merely the inevitable realignment of personnel to maximize workplace efficiencies or to recognize the relative merit of Brown and Michaud, as proposed by Hartt. Mr. Castonguay's and Mr. Hartt's refusal to talk with Mr. Brown upon his return and the exclusion of Mr. Brown from lunch outings only reinforces such a finding. Castonguay's failure to explain the demotion to Brown on January 15 in terms of Brown's alleged performance issues further calls into question the stated justification. In combination, these several items of circumstantial evidence are sufficient to permit the finder of fact to reject Hartt's justifications and to conclude that Brown's standing at Hartt fell precipitously following his heart attack precisely because of his medical condition and/or exercise of FMLA rights and that he was set up to fail upon his return, in very short order, for the same reason.
The record reflects that Mr. Hartt raised these issues a few days after the January 15 meeting between Mr. Brown and Mr. Castonguay. However, that also means that Mr. Hartt made the statements only after Brown had expressed that he intended to return to work and had told Castonguay that his demotion was illegal. Brown's cause is also advanced by the circumstantial evidence of back-dated memoranda concerning his performance problems.
Hartt argues that this case is like Dressler v. Community Service Communications, Inc., in which the First Circuit affirmed a summary judgment decision that the record was so one-sided in favor of the employer that no reasonable juror could find for the plaintiff. 275 F. Supp. 2d 17, 25 (D. Me. 2003), aff'd, 115 Fed. Appx 452, 453-54 (1st Cir. 2004). The record in this case bears little resemblance to the record in Dressler.
B. Disability Discrimination
Hartt also seeks summary judgment in its favor on Brown's claims of disability discrimination under the Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA). Hartt contends that Brown's claim must fail because he was not "substantially limited in any major life activity during the time period relevant to the two alleged acts of discrimination." (Mot. at 17.) Otherwise, Hartt contends that the record is not sufficient to demonstrate that these adverse employment actions were motivated by discriminatory animus toward the disabled. (Id. at 18.) These challenges pertain to distinct aspects of theMcDonnell Douglas framework as applied in the context of disability discrimination.
The ADA prohibits discrimination against "a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The MHRA provides analogous protection. It, too, prohibits discrimination against qualified individuals with disabilities in regard to, among other things, discharge and the terms, conditions and privileges of employment. 5 M.R.S. § 4572(2). It is appropriate to analyze both claims "hand in hand," following the McDonnell Douglas rubric.Carmichael v. Verso Paper, ___ F. Supp. 2d ___, ___, CV-08-402-B-W, 2010 WL 27725, *7, 2010 U.S. Dist. Lexis 934, *22 (D. Me. 2010) (citing Soileau v. Guilford of Me., Inc., 105 F.3d 12, 14 (1st Cir. 1997) (quoting Winston v. Me. Tech. Coll. Sys., 631 A.2d 70, 74 (Me. 1993)). 1. Prima Facie Disability Discrimination
For claims arising from events prior to June 21, 2007, it is sometimes necessary to consider whether a qualifying disability existed under Maine law, but not under federal law, because the MHRA definition of disability was considerably broader than the one found in the ADA. Rooney v. Sprague Energy Corp., 519 F. Supp. 2d 131, 133-34 (D. Me. 2007) (involving claim filed before effective date of MHRA amendment); Swift v. Bank of Am., Civ. No. 08-35-B-W, 2009 WL 723521, *12, 2009 U.S. Dist. Lexis 22499, *37-38 (D. Me. Mar. 16, 2009) (Mag. J., Rec. Dec.) (involving claim that accrued prior to effective date of amendment). Even subsequent to June 21, 2007, it is sometimes necessary to consider specific impairments as qualifying disabilities under the MHRA, though not necessarily under the ADA. See 5 M.R.S. § 4553-A (identifying certain impairments as disabilities "[w]ithout regard to severity unless otherwise indicated," including "heart disease").
To establish a prima facie case under the ADA and MHRA, Mr. Brown must demonstrate (1) that he was disabled within the meaning of the Acts; (2) that with or without reasonable accommodation, he was qualified to perform the essential functions of his job; and (3) that Hartt demoted and/or discharged him because of, in whole or in part, his disability.Thornton v. UPS, Inc., 587 F.3d 27, 34 (1st Cir. 2009). Hartt's summary judgment motion focuses on the first element of the prima facie test. Hartt observes that Brown was cleared to return to work and that there were no restrictions suggesting he suffered from a substantial impairment. (Mot. at 16-17.) Based on this development, Hartt says that Brown categorically cannot qualify as disabled. (Id. at 17-18.) Should the Court conclude that Brown has a prima facie case, Hartt argues that Brown fails to raise a genuine issue on the ultimate issue of discriminatory motive. (Id. at 18.) I conclude that Brown has made a sufficient prima facie showing under both the ADA and the MHRA and that there is enough circumstantial evidence in the record to raise a jury question on the existence of discriminatory motive.
Hartt argues that the record does not suggest discriminatory motive, either, but that argument is made in relation to the ultimate issue, not in relation to prima facie causation. The prima facie standard sets a "relatively light burden" and both the temporal proximity between Brown's heart attacks and his demotion and the temporal proximity between his return from heart-attack related leave and his termination are sufficient to satisfy the third element, particularly when combined with the suggestion that he remain out on disability leave and the later insistence on a full release. Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 224 (1st Cir. 2007).
a. Brown qualifies as disabled for purposes of the MHRA
Before addressing whether Brown qualified as disabled under the ADA, it is clear that Brown raises a genuine issue whether he qualified as disabled under the MHRA. When his claim accrued, the MHRA extended disability protection for "any . . . infirmity . . . caused by . . . disease, . . . environmental conditions or illness." Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, ¶ 24, 895 A.2d 309, 315 (quoting Rozanski v. A-P-A Transp., 512 A.2d 335, 340 (Me. 1986), and 5 M.R.S.A. § 4553(7-A) (1979)). Brown's heart attacks, which required quintuple bypass surgery and two angioplasties, demonstrate a qualifying disability for purposes of Maine law.
b. Brown fails to demonstrate a substantial limitation of permanent or long-term duration
A qualifying disability under the ADA is defined as an impairment that "substantially limits" an individual's ability to engage in one or more "major life activities." 42 U.S.C. § 12102(2) (2005). Brown obviously suffered a significant impairment in his cardiovascular system when he suffered heart attacks in late 2006. For purposes of federal law, the question is whether Brown's heart attacks reflected or resulted in a substantial limitation in Brown's ability to perform a major life activity. The Equal Employment Opportunity Commission has defined "substantially limits" as:
Congress recently amended Section 12102 of the ADA. ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008). The new language retains the "substantially limits" and "major life activities" terminology, but now includes some supplemental definitions and rules of construction that widen the class of covered individuals. 42 U.S.C. § 12102 (Supp. 2009). The amendments are not retroactive and, therefore, do not impact the analysis in this case. Carreras v. Sajo, 596 F.3d 25, 33 n. 7 (1st Cir. 2010).
(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 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.
29 C.F.R. § 1630.2(j)(1). The EEOC prescribes the following factors to determine whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
29 C.F.R. § 1630.2(j)(2). In
Toyota Motor Manufacturing v. Williams,
534 U.S. 184 (2002), the Supreme Court reified the "permanent or long term" regulation, treating it as inherent in the idea of substantial limitation.
Id. at 198. Consequently, where there are "large potential differences in the severity and duration of the effect" of an impairment, a "diagnosis, on its own, does not indicate whether the individual has a disability within the meaning of the ADA."
Id. at 199.
Because Mr. Brown's ADA claim arose in 2007, his impairment must not only be long term, it must also be substantially limiting despite the impact of mitigating measures taken to restore his health. Sutton v. United Air Lines, 527 U.S. 471, 482-83 (1999), superceded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008); Carreras v. Sajo, 596 F.3d 25, 33 (1st Cir. 2010). Thus, Mr. Brown's cardiovascular functioning would need to be assessed in light of his quintuple bypass surgery and angioplasty procedures.
Mr. Brown maintains that as of January 4, 2007, when the decision was made to demote him, he had been through three procedures and been hospitalized three times, and "was suffering a severe impairment of indeterminate duration that had, potentially, permanent long-term impact." (Opp'n Mem. at 15.) At that time, Brown had been out on leave for two months and believed he might be out of work for more than two additional months. (Id.) In addition to these considerations, Brown has introduced evidence that his physician opines that Brown had an elevated risk of sudden death following his heart attacks, including in the time frame of his return to work. (PAS ¶ 65.) Moreover, at the time, Brown still had to complete a cardiac rehabilitation program that required attendance two to three times per week. (Id. ¶ 66.) Brown was still participating in this program when Hartt terminated him. (Id. ¶ 67.) On top of this evidence, Hartt itself had indicated that its decision makers, as of January 4, "had no idea if Mr. Brown would ever return to work for Hartt." (DRS ¶ 55)
Because of the exacting phraseology that developed in this area of the law, it is actually difficult to find that two heart attacks, quintuple bypass surgery, and two angioplasties raise a genuine issue as to the existence of a substantially limiting cardiovascular disability. For example, in Katz v. City Metal Co., the First Circuit recognized that "a rational jury could conclude, even without expert medical testimony," that a heart attack reflects a physical impairment of the cardiovascular system. 87 F.3d 26, 31 (1st Cir. 1996). However, the First Circuit also stated that it presented "a very close question" whether a cardiac event that resulted in a period of convalescence involving shortness of breath and a significant limitation in the ability to walk satisfied the substantial limitation standard. In the Court's words:
We think that it would be difficult for a lay jury to conclude, based solely on the immediate effects of a heart attack and angioplasty procedure on Katz, that those limitations were permanent or persisted on a long-term basis, or that their duration was indefinite and unknowable or expected to be at least several months.
Id. at 32. The same would have to be said of this case, as the record lacks evidence of any physical limitations on the order of what was experienced by the plaintiff in
Katz. In another, more recent opinion, the First Circuit indicated that it would be difficult to determine whether any temporary infirmity involving a period of convalescence of only 6 to 24 months could satisfy the "permanent or long-term requirement" of the ADA, as it was construed at the time of Brown's impairment.
Guzman-Rosario v. UPS,
397 F.3d 6, 10 (1st Cir. 2005) (involving ovarian cysts that required surgery and brief hospitalization). In
Guzman-Rosario, the First Circuit ultimately decided to resolve a summary judgment dispute based on the absence of evidence of a substantial limitation on a life activity of
any duration.
Id. at 10-11 (involving intermittent
dizziness and pain). That escape hatch does not as easily open here. Two heart attacks and quintuple bypass reflect a severe impairment of cardiovascular function that can be expected to severely disrupt anyone's life activities for a spell. The issue here is, squarely, the duration of such impairment. On balance, I conclude that the facts of the instant case are not sufficient to place Brown in the category of "disabled" under the ADA, as the term was construed at the time, because his impairment, though severe, was not of long enough duration.
c. Brown fails to demonstrate a record of a substantial limitation of permanent or long-term duration
Brown argues, in the alternative, that he qualifies as disabled under the ADA because he had a record of being disabled and/or because Hartt regarded him as disabled. The ADA extends its protection to those who are discriminated against based on a record of a qualifying disability or based on a mistaken perception that they suffer from a qualifying disability. 42 U.S.C. § 12102(2)(B), (C) (2005). To come within either of these categories, Brown must show that he had a record of, or was regarded as having, an impairment that substantially limited one or more life activities. Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 83 (1st Cir. 2008). The limitation would also have to be permanent or long term. Katz, 87 F.3d at 32; Guzman-Rosario, 397 F.3d at 10. For reasons already indicated, the summary judgment record does not support a finding that Brown had a record of a permanent of long-term limitation when he returned to work at Hartt.
The "regarded as" provision has been reworded by the ADA Amendments Act of 2008 and is now broader in scope. 42 U.S.C. § 12102(3) (Supp. 2009).
Brown argues that he has a record of a qualifying disability because his treatment required hospitalization, citing School Board of Nassau County v. Arline, 480 U.S. 273 (1987). (Opp'n Mem. at 16.) In Arline, the Supreme Court held that acute tuberculosis requiring hospitalization demonstrated a record of a substantially limiting impairment of respiratory function. Id. at 281. However,Arline was decided prior to Williams, where the Supreme Court held that an "impairment's impact must also be permanent or long-term." 534 U.S. at 198. This is not to say that Williams overruled Arline, but the hospitalization in Arline lasted in excess of one year. Arline v. Sch. Bd. of Nassau County, 692 F. Supp. 1286, 1289 (M.D. Fla. 1988) ("Plaintiff was hospitalized for tuberculosis from May of 1957 until August of 1958.") Arline, in other words, does not reflect that any period of hospitalization requires a finding that a plaintiff has a record of a substantially limiting impairment. Even prior to theWilliams decision, courts were refusing to treat a brief period of hospitalization as establishing a record of a qualifying disability. Bilodeau v. Mega Indus., 50 F. Supp. 2d 27, 37 (D. Me. 1999) ("This Court agrees with the decisions of the Courts of Appeal for the Sixth, Seventh and Eighth Circuits that a hospitalization for an impairment does not in and of itself establish a record of such disability.") (collecting cases). This Court has more recently denied summary judgment to an employer based on a "record of" claim, where the plaintiff was twice hospitalized for the same impairment (depression and resulting suicide attempts). However, those hospitalizations occurred more than a decade apart, which would suggest a long-term impairment.Trafton v. Sunbury Primary Care, P.A., ___ F. Supp. 2d ___, ___, CV-08-322-B-W, 2010 WL 675058, *7, 2010 U.S. Dist. Lexis 17182, *23-24 (D. Me. 2010).
d. Brown succeeds in demonstrating that he was regarded as having a substantial limitation of long-term duration
The purpose of the "regarded as" provision "is to protect impaired individuals from discrimination on the part of their employers who exclude such individuals because of the stereotypes, myths, and fears they hold of people who are so impaired." Bilodeau, 50 F. Supp. 2d at 38. A person is regarded as having a qualifying disability where: "(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." Sutton, 527 U.S. at 489. Brown argues that Hartt regarded him as having a qualifying disability. He bases his argument on the following facts:
That he was told changes in the office were designed to make it less stressful for him;
That Castonguay indicated Brown was not informed of these changes initially because of concern for his fragile health;
That Castonguay suggested to Brown that he remain out on disability leave; and
That Hartt demanded a full release before Brown would be permitted to return.
(Opp'n Mem. at 17-19.) In addition to these facts, I note that Hartt itself has indicated it did not know whether Brown would ever return to work. (DRS ¶ 55.) These facts, plus the circumstantial evidence of pretext, are sufficient to support an inference that Hartt regarded Brown as having an impairment of sufficient duration to meet the Williams "permanent or longterm" requirement, which is the only factor otherwise preventing Brown from establishing a prima facie case of a qualifying disability or record of a qualifying disability.
e. Pretext
The discussion of pretext set forth above, in the context of the FMLA and MFMLR claims, applies with equal force here. Viewing all of the evidence in the record in the light most favorable to Brown and drawing all reasonable inferences in his favor, the finder of fact could fairly conclude that Hartt discriminated against Brown in regard to the terms, conditions, and privileges of employment based on an actual (MHRA) or perceived (ADA) disability.
CONCLUSION
Based on the foregoing recitation of material facts and discussion of the law, I RECOMMEND that the Court GRANT Defendant's Motion for Summary Judgment (Doc. No. 22) solely as to Count II (Rehabilitation Act) and otherwise DENY the Motion.
NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. 636(b)(1)(B) for which
de novo review by the district court is sought, together with a supporting memorandum, and request for oral argument before the district judge, if any is sought, within fourteen (14) days of being served with a copy thereof. A responsive memorandum and any request for oral argument before the district judge shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to
de novo review by the district court and to appeal the district court's order.