Hughes v. Southern New Hampshire Services, Inc.
///ORDER granting in part and denying in part 15 defendant's motion for summary judgment. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Case No. 11-cv-516-SM
Opinion No. 2012 DNH 196
Southern New Hampshire Services, Inc.,
O R D E R
Plaintiff, Patricia Hughes, brings this action against her
former employer, Southern New Hampshire Services, Inc. (“SNHS”),
seeking damages for alleged acts of discrimination.
specifically, she says SNHS violated the Americans with
Disabilities Act (“ADA”) by failing to reasonably accommodate her
disability: type 1 diabetes.
She also advances numerous claims
under state statutory and common law.
SNHS moves for summary
judgment, asserting that there are no genuinely disputed material
facts and claiming it is entitled to judgment as a matter of law.
That motion is granted in part, and denied in part.
Standard of Review
When ruling on a motion for summary judgment, the court must
“view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party’s favor.”
Griggs-Ryan v. Smith, 904 F.2d 112, 115
(1st Cir. 1990).
Summary judgment is appropriate when the record
reveals “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
In this context, “a fact is ‘material’ if it
potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.”
Int’l Ass’n of Machinists & Aerospace
Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party’s “evidence is merely
colorable, or is not significantly probative,” no genuine dispute
as to a material fact has been proved, and “summary judgment may
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986) (citations omitted).
The key, then, to defeating a
properly supported motion for summary judgment is the nonmovant’s ability to support his or her claims concerning disputed
material facts with evidence that conflicts with that proffered
by the moving party.
See generally Fed. R. Civ. P. 56(c).
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore a party’s
bald assertions, unsupported conclusions, and mere speculation.
See Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997).
also Scott v. Harris, 550 U.S. 372, 380 (2007).
SNHS was established in 1965 and serves as the Community
Action Partnership for Hillsborough County, under the Economic
Opportunity Act of 1964.
It operates pre-school programs and
child care centers, serving approximately 30 New Hampshire
communities, and is subject to the Federal Head Start Performance
Standards and the New Hampshire Child Care Program Licensing
In September of 2007, SNHS hired Hughes as a preschool
teacher in the Silver One classroom, in Manchester, New
Hughes suffers from type 1 diabetes, and requires a
strict diet and insulin injections 15 minutes prior to any meals.
She also requires insulin testing five to eight times each day.
Nevertheless, as part of the hiring process, Hughes completed a
disclosure form for new employees, in which she certified that
she did not need any special accommodations to perform the
position for which she was hired.
See New Employee Information
Form (document no. 15-8).
Hughes’s claims against SNHS center on her special dietary
Consequently, of particular relevance to this proceeding
are those federal regulations and Head Start programming
guidelines governing the manner in which children and their
teachers participate in mealtime interactions.
For example, the
Head Start programming guidelines require teachers to “set good
examples by demonstrating a positive attitude toward all foods
Head Start Programming Guidelines at 111, Exhibit 2 to
Defendant’s Memorandum (document no. 15-4).
regulations require that “all toddlers and preschool children and
assigned classroom staff, including volunteers, eat together
family style and share the same menu to the extent possible.”
C.F.R. § 1304.23(c)(4).
Those regulations also require SNHS to
comply with “all applicable Federal, State, Tribal, and local
food safety and sanitation laws, including those related to the
storage, preparation and service of food and the health of food
Id. at § 1304.23(e)(1).
Given those regulations and
guidelines, and to avoid safety, allergy, and sanitation
problems, SNHS says it does not allow “outside food” - that is,
food not prepared in its kitchens - to be brought into the
classrooms or consumed in front of the children during their
Hughes claims that, because she suffers from type 1
diabetes, she is disabled within the ADA’s meaning, and,
therefore, entitled to reasonable accommodations.
She says SNHS
violated the ADA when, first, it denied her requests for
reasonable accommodations and, again, when it terminated her
employment in retaliation for having made such requests.
also advances several state law claims of unlawful
discrimination, retaliation, wrongful termination, and
intentional infliction of emotional distress.
Turning first to Hughes’s federal claims, she advances three
distinct causes of action.
First, she says SNHS intentionally
discriminated against her on the basis of her disability and
unlawfully terminated her employment (count 5).
Next, she says
SNHS failed to reasonably accommodate her disability (count 6).
And, finally, she claims SNHS unlawfully retaliated against her
(by terminating her employment) after she requested reasonable
accommodations for that disability (count 7).
With regard to her “failure to accommodate” claim, Hughes
complains that, during the children’s lunch break, she was not
permitted to eat meals that she had prepared at home.
to have “made two requests for accommodation during her
Plaintiff’s memorandum (document no. 19-1) at 4.
In January of 2008, Hughes says she “first requested to bring her
own meals from home into the classroom, consistent with a meal
plan prescribed by her doctor.”
But, she never provided any
such medically prescribed meal plan, and she claims “management
responded that no outside food should be brought into the
She says, “[i]n the alternative, plaintiff
requested that defendant’s kitchen prepare low carbohydrate
meals, which would not be considered outside food.”
she claims SNHS responded by saying that although it accommodates
special dietary needs of the children, it does not prepare
special meals for its teachers.
Id. at 5.
As to her retaliation and wrongful termination claims under
the ADA, Hughes asserts that a day or two after she made her
second request for accommodation from SNHS, she was fired.
says there was a direct causal connection between her requests
for accommodation and SNHS’s decision to fire her, and claims
that decision amounted to unlawful, disability-based
The ADA and Diabetes.
SNHS’s first line of defense to Hughes’s ADA claims is
straightforward: because her type 1 diabetes is well-controlled
through medication and diet, it does not “substantially limit” a
major life activity (i.e., eating).
Accordingly, says SNHS,
Hughes is not disabled within the meaning of the ADA.
record and given the parties limited briefing of the issue, the
court cannot agree.
The ADA prohibits covered employers from discriminating
against qualified individuals with a disability.
42 U.S.C. §
A person is “disabled” under the ADA if he or she
suffers from a “physical or mental impairment that substantially
limits one or more major life activities.”
42 U.S.C. §
A “qualified individual” is one “who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
Id. at § 12111(8).
Under the ADA, unlawful
discrimination includes “not making reasonable accommodations to
the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee, unless . . . the accommodation would impose an undue
hardship on the operation of the business.”
In 2008, the ADA Amendments Act altered several provisions
of the ADA.
One of the goals of those amendments was to “reject
the requirement enunciated by the Supreme Court in Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999) and its companion
cases that whether an impairment substantially limits a major
life activity is to be determined with reference to the
ameliorative effects of mitigating measures.”
See Pub.L. No.
110-325, sec. 2(b)(2), 122 Stat. 3553 (emphasis supplied)
(codified at 42 U.S.C. § 12102(4)(E) (2008)).
question of whether an individual’s impairment is a disability
under the ADA [no longer] demand[s] extensive analysis.”
Consistent with those statutory amendments, the relevant
regulations now provide that:
Applying the principles set forth in [this section],
the individualized assessment of some types of
impairments will, in virtually all cases, result in a
determination of coverage under paragraphs (g)(1)(i)
(the “actual disability” prong) or (g)(1)(ii) (the
“record of” prong) of this section. . . ..
For example, applying the principles set forth [in this
section], it should easily be concluded that the
following types of impairments will, at a minimum,
substantially limit the major life activities
indicated: . . . diabetes substantially limits
endocrine function; . . ..
29 C.F.R. § 1630.2(j)(3) (emphasis supplied).
As noted above, SNHS’s assertion that Hughes is not disabled
is based entirely on “reference to the ameliorative effects of
mitigating measures” she takes - that is, a restricted diet and
Plainly, however, that approach was
abrogated by the recent amendments to the ADA.
42 U.S.C. §
The amendments to the ADA went into effect on January 1,
2009 - at approximately the midpoint of Hughes’s employment at
But, like most courts that have addressed the issue, the
Court of Appeals for the First Circuit has concluded that the
amendments are not retroactive.
Carreras v. Sajo, Garcia &
Partners, 596 F.3d 25, 33 n.7 (1st Cir. 2010).
See also Valle-
Arce v. P.R. Ports Auth., 651 F.3d 190, 198 n. 5 (1st Cir. 2011)
(“The ADA Amendments Act of 2008, which broadened the scope and
protections of the ADA, does not apply to this case.
does not apply retroactively to conduct that occurred before its
effective date of January 1, 2009.”) (citation omitted).
party has discussed those amendments to the ADA, nor has either
addressed their effect on the court’s determination of whether
Hughes is, in fact, disabled under the ADA.1
So, for purposes of addressing defendant’s motion for
summary judgment, the court will assume that Hughes is disabled
under the ADA and was, therefore, entitled to reasonable
The judicial opinions on which SNHS relies, including
Carreras, supra, and Aponte-Navedo v. Nalco Chemical, Inc. 848 F.
Supp. 2d 171 (D.P.R. 2012), are of little persuasive value. The
courts in those cases specifically noted that the amendments did
not apply because the conduct in question occurred prior to
January 1, 2009. Here, at least some of the conduct of which
Hughes complains occurred after the amendments went into effect.
Failure to Accommodate.
Unless an employer knows, or reasonably should know, that an
accommodation is necessary, the employee must explicitly request
An accommodation request must be sufficiently direct
and specific, and it must explain how the accommodation
is linked to plaintiff’s disability. The obligation is
on the employee to provide sufficient information to
put the employer on notice of the need for
accommodation. This means not only notice of a
condition, but of a causal connection between the major
life activity that is limited and the accommodation
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir.
2012) (citations and internal punctuation omitted).
course, it is well-established that when an employee is entitled
to a reasonable accommodation, she is not necessarily entitled to
the accommodation of her choosing.
See, e.g., E.E.O.C. v. Sears
Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) (“It is the
employer’s prerogative to choose a reasonable accommodation; an
employer is not required to provide the particular accommodation
that an employee requests.”); Trepka v. Bd. of Edu., 28 Fed.
Appx. 455, 459 (6th Cir. 2002) (“The employer need not provide
the accommodation that the employee requests or prefers.
Instead, the employer retains the ‘ultimate discretion’ to choose
another effective accommodation, even if less expensive or easier
Here, Hughes signed a document at the start of her
employment in which she represented that she did not require any
special accommodations to perform the position for which she was
See New Employee Information Form (document no. 15-8).
It was, then, incumbent upon her to directly and specifically
request an accommodation if one became necessary.
She claims to
have requested two different accommodations, both of which were
First, she asked SNHS to allow her to prepare her own
meals at home and then eat them with the children during their
When that request was denied, she says she asked
that the kitchen prepare low-carbohydrate meals for her.
request was also denied.
But, says SNHS, it did reasonably accommodate Hughes’s
special eating and dietary needs: it permitted her to eat her
meals - food that she had prepared at home - in the staff break
room, apart from the children.
See, e.g., Deposition of Patricia
Hughes (document no. 15-26) at 27-28, 59, 103, 108, 113.
Hughes’s own expert opined, that is precisely the type of
“reasonable accommodation” that would be appropriate for someone
with Hughes’s medical condition.
Plaintiff’s Answers to
Interrogatories (document no. 15-27) at 17 (“Reasonable
accommodations for the needs of a person with diabetes do not
have to disrupt the entire work place.
Examples of such
reasonable accommodations could include providing her with a list
[of] known and suspected allergens with instructions to not bring
them to the workplace, allowing her to eat her meal apart from
the children in the kitchen setting, or having kitchen staff
prepare a suitable meal to her needs.”) (emphasis supplied).
SNHS also points out that Hughes testified (and her expert
reported) that Hughes’s co-workers were aware of her condition
and whenever she experienced hypoglycemic symptoms, her coworkers covered for her and she was able to “go to the kitchen
and the classroom and do what [she] needed to do.”
Deposition at 120.
Hughes also testified that she always had
access to her glucose pills and testing equipment, she was never
prevented from performing whatever testing she felt was necessary
or appropriate, and she was never prevented from taking whatever
remedial measures she needed.
See, e.g., Id. at 120, 137.
Given that SNHS allowed Hughes to eat meals that she had
prepared for herself (rather than those prepared for staff and
children in the school’s kitchen) and allowed her to take those
meals apart from the children, in the staff break room (precisely
one of the accommodations recommended by Hughes’s own expert), it
appears that the real substance of her failure-to-accommodate
claim is this: during the children’s lunch break, SNHS required
Hughes to sit with the children, expected that she would take
servings of the food that had been prepared for the children, and
did not allow her to eat a special meal that she had prepared for
herself at home during the childrens’ mealtime.
As noted above, however, Hughes was not required to eat any
of the food prepared for the children; she was merely required to
present a “positive attitude” toward that food.
But, she claims
that requiring her to sit with the children and then “putting
high carbohydrate foods in front of her was like putting beer in
front of an alcoholic.”
Plaintiff’s Objection at 13.
Id. at 15 (“Hughes informed defendant’s management continuously
of her diabetic condition which prevented her from eating the
meals high in carbohydrates.
She also informed Jessica Emond and
Carrie Marshall, Education Disabilities Managers, that she was a
diabetic and could not participate in the meals served.”); Hughes
Deposition at 108 (acknowledging that “the issue from [Hughes’s]
perspective is that [she] was not allowed to bring outside food
into the classroom.”).
While Hughes may have found that sitting with the children
during their lunch break was inconvenient or even unpleasant,
requiring her to do so did not run afoul of the ADA.
accommodations SNHS afforded Hughes were entirely reasonable.
Accordingly, the record evidence supports SNHS’s claim that, as a
matter of law, it provided Hughes with all to which she was
entitled under the ADA: a reasonable accommodation of her type 1
diabetes (though not necessarily the accommodation she would have
SNHS is, then, entitled to summary judgment on count
6 of Hughes’s complaint.
III. Unlawful Retaliation.
As to Hughes’s assertions of unlawful termination (count 5)
and retaliation (count 7) under the ADA, the record does not
support such claims.
The ADA’s retaliation provision states that “[n]o person
shall discriminate against any individual because such individual
has opposed any act or practice made unlawful by this chapter.”
42 U.S.C. § 12203(a).
For purposes of that provision, seeking an
accommodation is protected conduct.
Freadman v. Metro. Prop. &
Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007).
To establish a
retaliation claim under the ADA, Hughes “must show that: (1) she
was engaged in protected conduct; (2) suffered an adverse
employment action; and (3) there was a causal connection between
the protected conduct and the adverse action.”
Municipality of San Juan, 660 F.3d 17, 36 (1st Cir. 2011).
Hughes is able to make out a prima facie case of unlawful
retaliation, “the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its employment decision.
The employer’s burden is one of production, not persuasion.”
Carreras, 596 F.3d at 36 (citations and internal punctuation
Assuming Hughes has made out a prima facie case, SNHS has
responded with a non-discriminatory reason for terminating her
employment: “recurring performance issues.”
Affidavit of Susan
Will, Exhibit 1 to Defendant’s Memorandum (document no. 15-3) at
See also Exhibits 9 through 20 (Hughes’s performance
appraisals and Supervision Summary Sheets which, although
positive in many respects, document ongoing issues with improper
distribution of classroom materials, trouble separating personal
and work issues, and problems relating to interacting with the
children in the manner prescribed by SNHS).
So, the burden
reverts to Hughes to point to record evidence sufficient to
permit a reasonable jury to conclude that SNHS’ proffered
explanation is merely a pretext for unlawful discrimination and
that her employment was actually terminated in retaliation for
having sought reasonable accommodation of her disability.
has failed to do so.
The evidence upon which Hughes relies is: (1) the temporal
proximity between her meeting with human resources on June 9, and
her termination two days later; and (2) a vague suggestion that
“Defendant’s assertion that Hughes’ termination was discussed
[prior to her meeting with human resources] is suspicious at
Plaintiff’s memorandum at 19-20.
proximity between protected conduct and an adverse employment
action can give rise to an inference of causation that is
sufficient to make out a prima facie case of discrimination, it
is not, without more, sufficient in this case to permit a trierof-fact to conclude that Hughes was the victim of unlawful
See, e.g., Alvarado v. Donahoe, 687 F.3d 453,
464 (1st Cir. 2012) (“As the [employer] has articulated a
legitimate reason for [its] decision to suspend Alvarado,
Alvarado bears the ultimate burden to show that this reason is in
fact a pretext and that the job action was the result of
With the exception of underscoring that he
received his suspension a week after filing EEO charges against
Ríos, Alvarado does not present any arguments or evidence that
would allow us to conclude that his employer’s stated legitimate
reason masked retaliatory motives.
reliance on any temporal proximity between his January 2008 EEO
activity and his suspension is unavailing.”).
Moreover, Hughes’s “suspicion” that she was terminated in
retaliation for having sought reasonable accommodations is just
that - a suspicion.
In response to that claim, SNHS has
submitted an affidavit from Susan Wall, stating that the decision
to terminate Hughes’s employment was made before Hughes went to
Human Resources to speak with Mr. Tabory about accommodations
and, therefore, that decision had nothing to do with Hughes’s
Will Affidavit at para. 11.
Mr. Tabory confirmed that
point, testifying that, “management had come to me prior to
[Hughes’s request for accommodation] and [stated] that they were
not satisfied with her performance and did not intend to invite
Deposition of Michael E. Tabory, Exhibit 26 to
defendant’s memorandum (document no. 15-28) at 53.
See also Id.
Plaintiff, on the other hand, has failed to point to any
evidence suggesting that there is a genuine dispute about whether
SNHS decided to terminate her employment prior to her meeting
with human resources.
Given the factual record presented, the
court is constrained to conclude that Hughes has not identified
(and cannot identify) sufficient evidence to suggest that there
are any genuinely disputed material facts on the question of
causality - that is, whether there was a causal link between her
request for accommodations and her discharge.
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(“Employers need not suspend previously planned transfers upon
discovering that a Title VII suit has been filed, and their
proceeding along lines previously contemplated, though not yet
definitively determined, is no evidence whatever of causality.”).
See also Mariani-Colon v. Dep’t of Homeland Sec., 511 F.3d 216,
224 (1st Cir. 2007) (“Appellant offers no additional evidence to
show that the reasons the government offered for his termination
While appellant engages in much speculation and
conjecture, a plaintiff cannot defeat summary judgment by relying
on conclusory allegations, or rank speculation.”) (citation and
internal punctuation omitted).
Hughes has not rebutted SNHS’s proffered legitimate reasons
for having fired her, nor has she established a causal connection
between her protected conduct and her discharge.
She has also
failed to demonstrate that there are any genuinely disputed
material facts relative to that issue.
At the same time, SNHS
has shown that it is entitled to judgment as a matter of law on
Hughes’s claims of unlawful discrimination and retaliation
(counts 5 and 7).
Hughes’s State Law Claims.
Having concluded that defendants are entitled to judgment as
a matter of law as to Hughes’s three federal claims under the
ADA, the court must next determine whether it is appropriate to
exercise supplemental jurisdiction over her state law claims of
unlawful discrimination, retaliation, wrongful termination, and
intentional infliction of emotional distress.
It declines to do
See generally 28 U.S.C. § 1367.
Section 1367 provides that the court may decline to exercise
supplemental jurisdiction over a plaintiff’s state law claim
the claim raises a novel or complex issue of State
the claim substantially predominates over the
claim or claims over which the district court has
the district court has dismissed all claims over
which it has original jurisdiction, or
in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis supplied).
To assist district
courts, the Court of Appeals for the First Circuit has identified
the following additional factors that should be considered when
determining whether to exercise supplemental jurisdiction over
state law claims: (1) the interests of fairness; (2) judicial
economy; (3) convenience; and (4) comity.
See Camelio v.
American Fed’n, 137 F.3d 666, 672 (1st Cir. 1998).
to principles of fairness and comity, the Supreme Court has
Needless decisions of state law should be avoided both
as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed
reading of applicable law. Certainly, if the federal
claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnote
Given that the court has dismissed all of the federal claims
in Hughes’s complaint, and taking into consideration the factors
identified in Camelio, the court declines to exercise
supplemental jurisdiction over Hughes’s state law claims.
For the forgoing reasons, defendant’s motion for summary
judgment (document no. 15) is granted in part, and denied in
To the extent it seeks judgment as a matter of law on
plaintiff’s claims under the American’s with Disabilities Act
(counts 5, 6, and 7), that motion is granted.
respects, however, it is denied.
In all other
Because this matter was removed from state court, the Clerk
of Court shall remand plaintiff’s state law claims to the
Hillsborough County North (New Hampshire) Superior Court, and
close the case.
Steven J. McAuliffe
United States District Judge
November 26, 2012
Simon Dixon, Esq.
Edward M. Kaplan, Esq.
Christopher J. Pyles, Esq.