YOUNG v. TOWN OF BAR HARBOR

Filing 65

ORDER ON MOTION FOR SUMMARY JUDGMENT re 55 Motion for Summary Judgment By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NATHAN YOUNG,
Plaintiff,
v.
TOWN OF BAR HARBOR,
Defendant.

)
)
)
)
) Docket no. 1:14-cv-00146-GZS
)
)
)
)
)
)
)

ORDER ON MOTION FOR SUMMARY JUDGMENT

Before the Court is the motion for summary judgment filed by Defendant Town of Bar
Harbor (ECF No. 55) (the “Motion for Summary Judgment”). For the reasons explained herein,
the Court GRANTS IN PART Defendant’s Motion for Summary Judgment and DISMISSES the
remaining claims WITHOUT PREJUDICE.
I.

LEGAL STANDARD
Generally, a party is entitled to summary judgment if, on the record before the Court, it

appears “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)(2). “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material
fact” is one that has “the potential to affect the outcome of the suit under the applicable law.”

Nereida–Gonzalez v. Tirado–Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (citing Anderson, 477
U.S. at 248) (additional citation omitted).
The party moving for summary judgment must demonstrate an absence of evidence to
support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether this burden is met, the Court must view the record in the light most favorable
to the nonmoving party and give that party the benefit of all reasonable inferences in its favor.
Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).
Once the moving party has made this preliminary showing, the nonmoving party must
“produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy
issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and
internal punctuation omitted); see also Fed. R. Civ. P. 56(e). “Mere allegations, or conjecture
unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56,
58 (1st Cir. 2011) (quoting Rivera–Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37
(1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly
supported summary judgment motion cannot be defeated by conclusory allegations, improbable
inferences, periphrastic circumlocutions, or rank speculation.” (citations omitted)). “As to any
essential factual element of its claim on which the nonmovant would bear the burden of proof at
trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants
summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (quoting In
re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993)).
II.

FACTUAL BACKGROUND
For the purposes of this Order, the Court draws the factual narrative that follows from the

stipulation of facts agreed to by the parties (ECF No. 53) (“SOF”), the statement of material facts

2

provided by Defendant Town of Bar Harbor (the “Town” or “Defendant”) (ECF No. 56)
(“DSMF”), the statement of material facts provided by Plaintiff Nathan Young (“Young” or
“Plaintiff”), which includes responses to Defendant’s statement of material facts (ECF No. 60)
(“PSMF”) and Defendant’s responses to Plaintiff’s statement of material facts (ECF No. 64)
(“DRSMF”). However, the Court limits its factual recitation to those facts that are relevant to the
discussion section that follows.
A. Young’s Employment with the Town of Bar Harbor
Young was the Chief of Police of the Town for 23 years. (SOF at PageID # 973.) Young
most recently served as Chief of Police pursuant to an employment agreement with the Town that
commenced on July 1, 2012, with a stated three-year term (the “Employment Agreement”). (ECF
No. 52-1 at PageID # 435.) Under the Employment Agreement, the Town was permitted to
terminate Young’s employment only for cause, in compliance with the requirements of 30-A
M.R.S.A. § 2671(1). (Id. at PageID # 436.)
In February of 2013, Young spoke with the Town Manager, Dana Reed (“Reed”) and selfreported a problem with excessive drinking. In response, Reed explained that certain employee
assistance plan (“EAP”) services were available to Young. (DRSMF at PageID # 1116.) The
parties agree that at no time while he served as Chief of Police was Young’s ability to perform his
duties affected or impaired by his consumption of alcohol. (SOF at PageID # 973.)
In the spring of 2013, a number of the members of the Town’s council (the “Town
Council”) expressed to Reed that they were concerned about Young’s behavior and problems in
his personal life. (PSMF at PageID # 1084; DRSMF at PageID # 1116.) According to Reed, the
concerns raised by members of the Town Council at this time related to rumors about a domestic
disturbance involving Young and his wife. (Reed Dep. (ECF No. 52-2) at PageID # 470.) The

3

five members of the Town Council who told Reed about concerns or rumors they had heard about
Young later voted to uphold Reed’s decision to terminate Young’s employment. (PSMF at PageID
# 1087; DRSMF at PageID # 1118.) In May of 2013, Town Council member David Bowden
allegedly told Christopher Walsh, then a member of the Town Council, that Young needed to go,
in connection with allegations that Young had engaged in an extramarital affair with another
employee of the Town. (DRSMF at PageID #s 1120-21.) Also in May of 2013, Reed allegedly
told Young he had enough votes on the Town Council to remove Young. (Young Dep. (ECF No.
52-1) at PageID # 325.)
Walsh has stated that Young told him in May of 2013 that he was an alcoholic, but that the
conversation concerned Young’s off-duty drinking, and not his work and job performance. (Walsh
Dep. (ECF No. 52-4) at PageID #s 802-03.) According to Walsh, he told Reed about this
conversation.1 (Id. at PageID # 803.) To the contrary, Young has stated that he never described
himself as an alcoholic to anyone prior to October of 2013. (DRSMF at PageID # 1119.) That
same month, Reed spoke with Jonathan Goodman, an attorney in private practice in Maine,
concerning a possible investigation that ultimately did not occur. (PSMF at PageID # 1088.) Reed
stated that the contact with Goodman at this time concerned the alleged domestic disturbance
incident involving Young. (Reed Dep. (ECF No. 52-2) at PageID # 468; Tr. Hearing in re:
Termination of Young (ECF No. 52-3) at PageID # 574.)
On September 25, 2013, at approximately 11:30 P.M., the Town’s police department
received a call reporting that a vehicle was parked in the parking lot of Town Hill Market in the
Town, and that there appeared to be a man slumped over in the driver’s seat of the vehicle. (SOF
at PageID #s 973-74.) Officer Judson Cake (“Cake”) and Officer Larry Fickett (“Fickett”), each

1

Reed specifically denies that this conversation with Walsh occurred. (Reed Dep. (ECF No. 52-2) at PageID # 489.)

4

police officers of the Town’s police department, were patrolling together and responded to the call.
(SOF at PageID # 974.) Cake and Fickett observed a vehicle in the parking lot, which Fickett
recognized as belonging to Young. (Id.)
Cake and Fickett both exited their car and approached Young’s vehicle.2 (PSMF at PageID
# 1065.) Cake approached the driver’s side window, while Fickett stayed towards the back of the
truck. (Id.) Cake knocked on the driver’s side window more than once before Young responded
to the knocks and opened the door. (Id.) Cake asked Young if he was “okay,” and Young stated
that he was. (Id. at PageID # 1066.) Cake observed that Young appeared to be waking up. (Id.)
Cake believed that he smelled alcohol when Young opened his car door. (Id.) Cake concluded,
based on his observations, that Young had been drinking and was intoxicated. (Id. at PageID #
1069.)
When Cake identified Fickett as the other on-duty officer present, Young made a negative
remark about Fickett. (Id. at PageID # 1066-67.) Cake repeatedly requested that Fickett approach
the driver’s side door to interact with Young, and he eventually did so. (Id. at PageID # 1067.)
Fickett smelled alcohol as he approached the driver’s side door. (Id.; Fickett Dep. (ECF No. 528) at PageID # 881.) Neither Cake nor Fickett observed physical evidence of alcohol consumption
external to Young’s person, such as open alcoholic beverage containers. (Id. at PageID #s 106768.) Neither Cake nor Fickett observed Young operating his vehicle, and neither performed a field
sobriety test on Young. (Id. at PageID #s 1067, 1069.) After an interaction with Young spanning
about three or four minutes, Cake and Fickett departed in their police vehicle. (Id.)

2

The Court recognizes that the parties rely upon the statements of Young, Cake, and Fickett to construct differing
narratives of the precise interaction that occurred when Cake and Fickett arrived at the Town Hill Market parking lot.
Nonetheless, the general contours of the event are undisputed, and the Court draws its recitation from those undisputed
facts and other material facts construed in the light most favorable to Young, given Plaintiff’s Statements of Material
Fact.

5

After leaving the scene, Fickett called the Town’s police station and spoke with Officer
Eric McLaughlin. (SOF at PageID # 974.) After conversing with Officer McLaughlin, Cake and
Fickett returned to the Town Hill Market parking lot, but observed that Young’s vehicle was no
longer in the parking lot. (Id.)
B. Investigation of Young and Termination of Young’s Employment
On October 1, 2013, Reed met with Young and informed him that Young would be placed
on administrative leave, pending an investigation into the incident at the Town Hill Market parking
lot. (SOF at PageID # 975.) Reed then retained Jonathan Goodman to conduct the investigation.
(Id.) Young subsequently sought medical leave pursuant to the Family Medical Leave Act, 29
U.S.C.A. § 2601 et. seq. (the “FMLA”), in order to obtain in-patient treatment for alcohol abuse,
and the Town approved his request. (Id.) Reed then informed the Town Council, in an executive
session, that Young was on FMLA leave. (Id.) Former Town Council member Walsh contends
that Reed said to the Town Council “that [Young] figured out a way to get another paycheck and
that he was going to be holding this up.” (Walsh Dep. (ECF No. 52-4) at PageID # 799.) Walsh
further stated that Town Council members Paradis, St. Germain, and Bowden indicated that Young
was dragging out the investigation process. (Id. at PageID # 807.) Reed has stated that any such
comments concerned the fact that Young had allegedly not contacted Reed after returning from
in-patient treatment or immediately after his FMLA leave concluded. (DRSMF at PageID # 1132.)
During the duration of Young’s FMLA leave, which concluded on November 29, 2013, he
remained on administrative leave from his position as Chief of Police.
On December 24, 2013, attorney Goodman issued a report on his investigation. (SOF at
PageID # 975.) Goodman concluded that Young had been intoxicated at the time that he interacted
with Cake and Fickett on September 25, 2013 and that Young was “hostile toward the officers,

6

which dissuaded them from taking appropriate action . . . .” (Goodman Dep. (ECF No. 52-10) at
PageID # 962.) On January 15, 2014, Reed sent Young a copy of the report and informed him that
based on the contents of the report, and on Young’s conduct during his administrative leave, he
was contemplating taking disciplinary action against Young, up to and including a potential
termination of Young’s employment. (SOF at PageID #s 975-76.) Following a meeting with
Young on January 20, 2014, Reed terminated Young’s employment on January 22, 2014 and
advised him of his right to appeal the termination to the Town Council. (SOF at PageID # 976.)
Young appealed the termination decision and requested a public hearing. (Id.) The Town
Council held a public hearing on February 26, 2014. (Id.) At the conclusion of the hearing, and
after deliberating, the Town Council voted 5-2 to affirm Reed’s decision to terminate Young’s
employment. (Id.)
C. The Present Dispute
Young brought suit against Defendant by filing a complaint in the Superior Court of the
State of Maine, Hancock County. (ECF No. 3-3.) After Defendant removed the case to this Court
on April 8, 2014, Plaintiff amended his complaint (ECF No. 23) (the “Complaint”), ultimately
asserting seven claims against Defendant. Defendant brought a motion to dismiss certain of
Plaintiff’s claims, and this Court granted that motion in part and denied it in part. As a result of
the order on the motion to dismiss (ECF No. 39), Count I and one of the claims asserted under
Count V of the Complaint have been dismissed. Defendant has now moved for summary judgment
on the remaining six counts of the Complaint.
III.

DISCUSSION
The Court first evaluates Plaintiff’s claims arising under federal law: his claim for disability

discrimination under the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et. seq.

7

(the “ADA”) (Count V) and his claim for a violation of the FMLA (Count VII).3 Finally, following
the determination that Defendant’s Motion for Summary Judgment must be granted as to Counts
V-VII, the Court briefly explains its decision to dismiss Plaintiff’s remaining state law claims
without prejudice.
A. ADA Disability Discrimination Claim
A claim for disability discrimination under the ADA requires that a plaintiff show that “he
(1) has a disability within the meaning of the ADA; (2) is qualified to perform the essential
functions of the job, with or without reasonable accommodations; and (3) was subject to an adverse
employment action based in whole or part on his disability.” Ramos-Schevarria v. Pichis, Inc.,
659 F.3d 182, 186 (1st Cir. 2011). In its Motion for Summary Judgment, the Town first argues
that Young was not disabled under the ADA. The Town further argues that, even if Young’s
alcoholism qualified as a disability on this record, the Town did not take an adverse employment
action against Young based on any such disability. The Court concludes that Defendant is correct
that Plaintiff was not disabled under the ADA, and Defendant is therefore entitled to summary
judgment on Count V. Even if Plaintiff’s alcoholism could be shown to be a disability, Defendant
would still prevail on Count V because it did not discriminate against Plaintiff based on that
disability.
1. Plaintiff Did Not Suffer from a Disability Under the ADA
Plaintiff bears the burden of proving that his alcoholism4 constitutes a disability under the
ADA. To satisfy this first element of the cause of action for disability discrimination, a plaintiff

3

As briefly explained infra notes 11 & 12, the analysis of these federal claims necessarily dictates the result of
Young’s related MHRA claim (Count VI).
4

Defendant has apparently assumed that Plaintiff was actually an alcoholic when the events giving rise to this dispute
occurred. (Mot. Summ. J. at PageID # 984.) Therefore, the Court likewise accepts Plaintiff’s contention that he was
an alcoholic for the purposes of this Order.

8

must show “(A) a physical or mental impairment that substantially limits one or more of the major
life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12102(1). Young alleges that he was actually disabled and
argues that his disability resulted from his alcoholism, an impairment that substantially limited at
least one major life activity. (Pl.’s Opp. Def.’s Motion Summ. J. (ECF No. 59) (“Pl.’s Opp.”) at
PageID # 1059.) The Complaint further asserts that “Defendant regarded as, perceived, or treated
Plaintiff as disabled” (Compl. ¶ 80), and Plaintiff argues in connection with the pending motion
that the Town had a “record of his disability.” (Pl.’s Opp. at PageID # 1059.) Giving Plaintiff the
full benefit of each basis that he has identified,5 the Court considers each of the three statutory
bases by which Plaintiff might show that he was disabled.
a. Impairment Substantially Limiting a Major Life Activity
Plaintiff must show that his condition constituted an impairment, that the life activity or
activities Plaintiff asserts have been substantially limited constitute “major life activities,” and that
such life activity or life activities have in fact been substantially limited. Bragdon v. Abbott, 524
U.S. 624, 631 (1998). The First Circuit has made clear that “[t]here is no question that alcoholism
is an impairment . . . under the ADA.” Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st
Cir. 2002).
Proceeding to the second point of inquiry, the Court considers whether Plaintiff has
identified in the record an impairment of major life activities, such as “[c]aring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching,

5

Plaintiff only alleged that he had an actual disability and that his employer regarded him as having a disability in the
Complaint, but did not allege that there was a record of his disability. (Compl. ¶¶ 77-81.) Furthermore, this Court, in
denying Defendant’s motion to dismiss Plaintiff’s disability discrimination claim (ECF No. 39, affirming the
Recommended Decision of the Magistrate Judge, ECF No. 38), ultimately presumed that the Complaint set forth only
a claim for disability discrimination based on Plaintiff’s assertion that Defendant regarded Plaintiff as disabled.
Nonetheless, the Court separately analyzes all three bases on which a plaintiff might establish the first “disability”
element.

9

lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,
interacting with others, and working.” 29 C.F.R. § 1630.2(i). Notably, Plaintiff has not identified
a single particular impaired activity that he asserts is a major life activity. Rather, he argues that
he “would not have sought treatment by enrolling in a rehabilitation program in October 2013 had
[Plaintiff] felt that his life activities were not substantially limited.” (Pl.’s Opp. at PageID # 1059.)
However, Plaintiff is incorrect to assume that enrollment in an alcohol abuse treatment program,
alone, provides implicit evidence that major life activities have been impaired. See Bailey, 306
F.3d at 1168 (“Evidence that alcoholics, in general, are impaired is inadequate to show a substantial
limitation of one or more life activities”). See also Ingram v. Brink’s, Inc., 414 F.3d 222, 229 (1st
Cir. 2005) (“[S]ummary judgment cannot be defeated by relying on improbable inferences,
conclusory allegations, or rank speculation.”).
Moreover, for purposes of the pending Motion for Summary Judgment, the parties have
stipulated that “[d]uring the time that [Plaintiff] served as police chief, his ability to perform his
duties was never affected or impaired by his consumption of alcohol.” (SOF at PageID # 973.)
The Court must thus conclude that Plaintiff’s alcoholism did not impair the substantial life function
of working. No other life activity has been put forth by Plaintiff as a particular life activity that is
substantially impaired. Therefore, Plaintiff has failed to satisfy all of the elements of the disability
determination, i.e., an impairment to a major life activity that is substantial.
b. Record of Disability
To qualify as “disabled” under § 12102(1)(B), which defines a disability as having a record
of a disability, a plaintiff must show that he has been classified (or misclassified) as having an
impairment that substantially limited a major life activity. Bailey, 306 F.3d at 1169. Plaintiff
argues in his brief that the Town had a “record of his disability.” (Pl.’s Opp. at PageID # 1059.)

10

To support this proposition, Plaintiff points to the fact that Reed explained to Plaintiff that
resources were available to him under the Town’s EAP in the early months of 2013. While the
record supports Plaintiff’s contention that this discussion related to Young’s alcohol consumption
in his off-duty time, Plaintiff has not argued, nor does the record support, that this discussion, or
any documentation of it,6 related to the substantial limitation of a major life activity. See RomanOliveras v. Puerto Rico Elec. Power Authority, 655 F.3d 43, 49 (1st Cir. 2011) (agreeing that the
plaintiff failed to state a claim based on a record of disability where he did not allege substantial
limitations as a result of his impairment). See also Scheffler v. Dohman, 785 F.3d 1260, 1261-62
(8th Cir. 2015) (finding that several documented and specific instances of drinking-related offenses
did not constitute a record of alcoholism).
Plaintiff has asserted that Town Council member Walsh spoke to Reed in the spring of
2013 about Young’s drinking. Defendant disputes that such a discussion took place. Viewing the
record in the light most favorable to Plaintiff, the Court assumes that Plaintiff could establish at
trial that this discussion did occur and that such an unrecorded, undocumented conversation would
constitute or give rise to a “record” in connection with the Town’s employment of Young.
Nonetheless, the discussion described by Walsh did not concern the impairment of a substantial
life function. In fact, Walsh expressly stated that this conversation did not concern Young’s ability
to work or to continue serving as Chief of Police. Likewise, assuming Plaintiff could establish
that at least one member of the Town Council stated that “[Young] has got to go” in the spring of
2013 and that Reed stated at that time that he had enough votes on the Town Council to remove

The record does not indicate that any written notation was made in the Town’s employment records concerning this
conversation, which Reed asserts is because he did not consider the discussion to relate to an employment issue. (Reed
Dep. (ECF No. 52-2) at PageID # 487.)
6

11

Young from his position as Chief of Police,7 there is no connection in the record between any of
these statements and an impairment, specifically alcoholism, that substantially limited a major life
activity. Finally, Defendant argues that Reed’s contact with an attorney, Jonathan Goodman, in
May of 2013 indicates that the Town had a record of Young’s disability. However, this fact not
only fails to support a record of the substantial limitation of a major life activity, but also does not
relate to an impairment, as the record reflects that Reed did not discuss Young’s alcohol
consumption with Goodman at that time.8
c. Regarded as Disabled
Finally, Plaintiff, relying on the same facts just discussed, asserts that he was regarded by
Defendant as disabled within the meaning of the ADA. Currently, under the ADA, “An individual
meets the requirement of ‘being regarded as having [an impairment that can support a disability
discrimination claim]’ if the individual establishes that he or she has been subjected to [a prohibited
action] because of an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). See
Mercado v. Puerto Rico, 814 F.3d 581, 588 (1st Cir. 2016) (explaining that following amendments
to the ADA in 2008, “a plaintiff bringing a ‘regarded as’ claim under the ADA needs to plead and
prove only that she was regarded as having a physical or mental impairment. Such a plaintiff no
longer needs to plead and prove that such impairment substantially limited one or more major life
activities.”) However, no disputed issue of material fact remains that would bear upon the
determination of whether the Town regarded him as disabled.

7

These facts are disputed, and Reed has specifically denied that any member of the Town Council told him that they
wanted Young gone prior to September 25, 2013. (Reed Dep. (ECF No. 52-2) at PageID # 490.)
8

Attorney Goodman was later retained by the Town to conduct an independent investigation into the events of
September 25, 2013, but Plaintiff does not allege that the Town’s contacts with Goodman in the context of that
investigation support a record of Young’s disability.

12

Plaintiff points to the same evidence offered as a purported record of Plaintiff’s disability
to support the proposition that Defendant was aware of his impairment and regarded him as
impaired. However, it is not sufficient that the management of the Town may have had knowledge
that Young drank alcohol during his off-duty time, or even that such consumption was arguably
excessive in some cases. See Dohman, 785 F.3d at 1262 (defendant’s knowledge of plaintiff’s
multiple DWI convictions was not sufficient to conclude that defendant regarded plaintiff as an
alcoholic). Rather, Defendant must have perceived Plaintiff to be an alcoholic. Id. Even crediting
all of Plaintiff’s assertions of disputed facts, there is no support in the record for such a link.
First, while the record reflects that Reed and Young discussed Young’s drinking in
February of 2013, Reed’s explanation of the Town’s EAP-related services does not constitute a
perception by the Town that Young was an alcoholic who was physically or mentally impaired as
a result. Notably, as discussed above, no evidence exists in the record to support that any
documentation was made of Young’s drinking, or any related substance abuse condition, by the
Town.
Furthermore, Defendant’s allegations that Town Council members expressed concerns
about Plaintiff in the spring of 2013, taken as true, do not support the conclusion that the Town
regarded Young as impaired. The statements include opposition to Young’s continued service as
Chief of Police and questions about his personal life and conduct. Plaintiff has identified no
statements where Reed or Town Council members identified Young as an alcoholic in Town
Council meetings or in the records of the Town.9 The statements of fact put forth by Plaintiff, if
Plaintiff asserts that Town Council member Walsh spoke to Reed about Young’s drinking in May of 2013. (PSMF
at PageID # 1087.) However, while Walsh has stated that Young described himself as an alcoholic to Walsh in a
conversation between Walsh and Young in May of 2013 (ECF No. 52-4 at PageID # 802), Young does not remember
such a conversation and asserts that he never described himself as an alcoholic prior to October of 2013. Reed denies
being told by Walsh that Young described himself as an alcoholic. Even if Young stated to Walsh that he was an
alcoholic, a single statement to a single member of the Town Council would not support a conclusion that the Town
perceived Young as an alcoholic.
9

13

true, tend to indicate that certain Town Council members and Reed had developed negative
feelings about Young and his continued tenure as Chief of Police. However, this evidence only
tangentially relates to Young’s off-duty consumption of alcohol, and does not support a conclusion
that the Town perceived Young to be an alcoholic.
Plaintiff has not demonstrated that he was actually disabled under the ADA, because he
has not presented this Court with a genuine factual dispute as to whether Young experienced a
substantial limitation to any major life activity as a result of the impairment of being an alcoholic.
He has also adduced no facts to demonstrate that the Town arguably had a record of Young having
such a limitation. Finally, Plaintiff has failed to demonstrate that a reasonable factfinder could
conclude that Defendant regarded Plaintiff as impaired. Therefore, on this record, there is no
genuine disputed issue of material fact. The Court concludes that Plaintiff cannot establish that he
was disabled within the meaning of the ADA.
2. Defendant Did Not Discriminate against Plaintiff Because of Plaintiff’s Disability
In its Motion, Defendant argues that, even if Young was disabled, the Town did not take
an adverse employment action against Plaintiff on account of his disability. For the reasons
explained below, the Court agrees with Defendant that Plaintiff was not subjected to an adverse
employment action because of his alcoholism. Therefore, even if, on the record before the Court,
Plaintiff was deemed disabled under the ADA, Defendant would still be entitled to summary
judgment in its favor on Count V.
In the Complaint, Plaintiff alleges that Defendant “terminated [Plaintiff] because of his
disabilities.” (Compl. ¶ 81.) Framed in terms of the applicable analytical framework, Plaintiff
would assert that he has made a prima facie showing that Plaintiff, a disabled employee, was
subjected to the adverse employment action of termination because of his disability. See Calero-

14

Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 26 (1st Cir. 2004). As an initial matter, it is not clear
that Plaintiff has made even a prima facie showing that the Town’s decision to terminate Young’s
employment was caused by Young’s disability. Plaintiff has argued, in opposition to the Motion
for Summary Judgment, that “this is a case where the police chief of a town performed his job
satisfactorily, but at the same time was known to be an alcoholic.” (Pl.’s Opp. at PageID # 1060.)
However, no facts, or even specific contentions, are advanced which would provide a prima facie
link between Plaintiff’s alleged disability and the termination of his employment.
The Court nonetheless assumes that Plaintiff has met the minimum standard of a prima
facie showing of a disability discrimination claim.10 “Once the plaintiff has made a prima facie
showing of retaliation . . . defendant must articulate a legitimate, non-retaliatory reason for its
employment decision. If the defendant meets this burden, the plaintiff must . . . show that the
proffered legitimate reason is in fact a pretext and that the job action was the result of the
defendant’s retaliatory animus.” Calero-Cerezo, 355 F.3d at 26. Defendant argues that the record
reflects that it identified a non-discriminatory reason for the termination of Young’s employment:
that Goodman’s independent investigation concluded that Young’s actions towards Cake and
Fickett on September 25, 2013 violated departmental canons and standards of conduct and
compromised the integrity of the police department. Plaintiff states in response that “[t]he
rationale provided by the council in terminating Young is a subterfuge.” (Pl.’s Opp. at PageID #
1060.) The basis for this contention is that, according to Plaintiff, he did not intimidate or coerce
Fickett and Cake, and he did not violate any laws the night of September 25, 2013.

10

As the First Circuit has previously indicated, at the summary judgment phase, analysis of this issue generally focuses
on pretext and discriminatory animus. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996) (“On
summary judgment, the need to order the presentation of proof is largely obviated, and a court may often dispense
with strict attention to the burden-shifting framework, focusing instead on whether the evidence as a whole is sufficient
to make out a jury question as to pretext and discriminatory animus.”). Critically, Plaintiff in this case has failed to
develop a factual basis for finding pretext and discriminatory animus.

15

There are two flaws in Plaintiff’s argument that prevent Plaintiff from making the
necessary showing, under the burden-shifting framework, that the record could support his claim
for disability discrimination. First, while Plaintiff contends that the conclusions reached by the
independent investigator and accepted by Reed and a majority of the Town Council were in fact
incorrect, he has not explained why the Town Council would not have been justified in accepting
those conclusions, or why claiming to accept those conclusions should be characterized as
subterfuge. To the extent that Young’s interactions with Fickett and Cake while Young was offduty may have been influenced by Young’s consumption of alcohol, the Court notes that an
employer “may hold an employee who . . . is an alcoholic to the same qualification standards for
employment or job performance and behavior that such entity holds other employees, even if any
unsatisfactory performance or behavior is related to the . . . alcoholism of such employee.” 42
U.S.C. § 12114(c)(4).
More fundamentally, Plaintiff has focused his efforts on attacking the fairness of the Town
Council’s decision-making process, but has not identified any facts which, if credited, would
support the conclusion that discrimination against Young based on his disability was the actual
basis for the Town’s termination of Young’s employment. Plaintiff makes great efforts to
document, in a disputed factual account, the Town Council members who expressed concerns
about, or opposition to, Young’s employment as Chief of Police prior to the events of September
25, 2013. Plaintiff’s factual assertions might support a conclusion that personal conflicts with
Young existed prior to September 25, 2013, when the events occurred that are ostensibly at the
center of the Town’s disciplinary proceedings against Young. However, such conflicts and any
related personal animus have not been shown by Plaintiff to have resulted from Young’s alleged
status as a person disabled by his alcoholism. The ADA does not protect a disabled person from

16

adverse employment actions based on animus, but rather from “discriminatory animus.” Tobin v.
Liberty Mut. Ins. Co., 433 F.3d 100, 105 (1st Cir. 2005). It is this connection that is missing in
the record and in Plaintiff’s argument.
Simply put, the Court concludes that the current record does not present a trialworthy issue
as to the causal connection between Plaintiff’s alleged disability and the termination of his
employment. Assuming Plaintiff could meet the prima facie standard, the Court alternatively
concludes that Plaintiff has failed to present evidence that makes a trialworthy issue of his
contention that Defendant’s stated reasons for the termination were pretext, and that the
termination was a discriminatory action against Young for being an alcoholic.11
B. FMLA Retaliation Claim
Plaintiff argues that Defendant retaliated against him for his decision to seek and take leave
under the FMLA by terminating his employment with the Town. “[T]o make out a prima facie
case of retaliation, a plaintiff must show that: 1) he availed himself of a protected right under the
FMLA, 2) he was adversely affected by an employment decision, and 3) there was a causal
connection between the protected conduct and the adverse employment action.” Pagan-Colon v.
Walgreens of San Patricio, Inc., 697 F.3d 1, 9 (1st Cir. 2012). The parties agree that Plaintiff took
medical leave pursuant to his rights under the FMLA and that Plaintiff was adversely affected by
an employment decision when his Employment Agreement was terminated. However, Defendant

11

The elements and application of the MHRA disability discrimination claim (Count VI) parallel the elements of the
analogous causes of action permitted under the ADA. Under the MHRA, unlike the ADA, alcoholism is defined as a
disability. 5 M.R.S.A. § 4553-A(1)(B). However, for the purposes of determining whether a plaintiff can prove that
an adverse employment action was taken because of a disability, the MHRA analysis tracks the analysis performed
under the ADA. See Dudley v. Hannaford Bros. Co., 190 F. Supp. 2d 69, 73 (D. Me. 2002), aff’d 333 F.3d 299 (1st
Cir. 2003) (“Courts have interpreted the ADA and MHRA statutes as coextensive.”) The Supreme Judicial Court of
Maine has stated that “[o]ur construction of the MHRA . . . has been guided by federal law . . . .” Currie v. Indus.
Sec., Inc., 915 A.2d 400, 404 (Me. 2007). Since Defendant is entitled to summary judgment on Plaintiff’s ADA
disability discrimination claim because the record cannot support the conclusion that Defendant terminated Plaintiff’s
employment because of his alcoholism, it necessarily follows that Defendant is entitled to summary judgment on
Plaintiff’s MHRA claim as well.

17

contests Plaintiff’s assertion that his medical leave bore a causal relationship to the Town’s
decision to fire him.
As in the ADA disability discrimination analysis, the burden-shifting framework applies
to an FMLA retaliation claim where the plaintiff has not identified direct evidence of retaliation.
Pagan-Colon, 697 F.3d at 9. To make out a prima facie case of a causal connection between
Young’s FMLA leave and his eventual termination, Young has pointed to statements by Walsh
and Garland asserting that Reed and certain of their fellow Town Council Members expressed a
dismissive attitude towards Plaintiff’s medical leave. Specifically, according to Walsh, Reed
described the leave as Young’s way of obtaining “another paycheck.” (Walsh Dep. (ECF No. 524) at PageID # 799.) In a similar vein, according to Plaintiff, Reed and certain Town Council
Members deemed the FMLA leave to be a tactic to prolong Young’s suspension with pay, and to
delay the time when the Town Council could take up the question of any disciplinary action to be
taken against Young. By Plaintiff’s own admission, the administrative leave and investigation into
Young’s conduct predate Young’s decision to take medical leave.
Given that Plaintiff’s proffered evidence does not stand for the proposition that the Town
was influenced by the fact that Plaintiff took an FMLA leave in reaching its decision to terminate
his employment, it is doubtful that Plaintiff can satisfy this first step of a prima facie showing in
the burden-shifting analysis. Even if he could be said to meet that standard, however, Plaintiff has
identified its non-retaliatory, non-discriminatory reasons for terminating Plaintiff’s employment,
and Plaintiff has not shown evidence of pretext that could meet his burden of proving retaliation.
Plaintiff has not identified any facts tending to suggest that the Town Council’s decision
to terminate Young’s employment was caused or influenced by his decision to take medical leave.
To the contrary, Plaintiff relies upon statements that he regards as evidence of a longstanding

18

desire by certain Town Council Members to fire Young, a desire that Plaintiff suggests existed
prior not only to his FMLA leave, but also to the incident on September 25, 2013, and Young’s
ensuing suspension. Because the record contains no credible evidence that Young’s medical leave
caused the Town to terminate his employment, the Motion for Summary Judgment is granted as
to Count VII.12
C. Remaining Claims Arising Under Maine State Law
Plaintiff’s remaining claims are his claim for review of the Town’s decision to terminate
Plaintiff’s employment under Maine Rule 80B (Count II), his claim of breach of contract (Count
III), and his claim of violation of Maine’s Freedom of Access Act, 1 M.R.S.A. § 404 (Count IV).
The claims focus on the contractual and procedural aspects of Plaintiff’s employment and
termination of Plaintiff by a municipal entity. While the Motion for Summary Judgment presents
arguments in favor of dismissal of each of these three state claims, the Court has determined as a
matter of comity that those arguments are best examined by the state court now that Plaintiff’s
discrimination and retaliation claims are resolved. As a general matter, when a federal court sitting
in subject matter jurisdiction grants summary judgment in favor of a defendant on all federal
claims, it should simply dismiss any pendent state claims to allow the plaintiff to refile them in
state court. Rivera v. Murphy, 979 F.2d 259, 264-65 (1st Cir. 1992). Therefore, in an exercise of
its informed discretion, the Court dismisses each of these claims without prejudice.

In his Opposition to Defendant’s Motion for Summary Judgment, Plaintiff seems to argue that it is Defendant’s
alleged violation of the FMLA that gives rise to his claim under the MHRA. (Pl.’s Opp. at PageID # 1060-61.) This
line of argument goes beyond the scope of Plaintiff’s pleadings, which explicitly predicate Count VI upon Defendant’s
ADA claims delineated in Count V. (Compl. ¶ 84.) However, even assuming that Plaintiff had adequately pled a
FMLA-based claim under the MHRA, the Court would reach the same result. Because Defendant is entitled to
summary judgment on Count VII, it must also prevail on any analogous MHRA claim.
12

19

IV.

CONCLUSION
For the reasons just stated, the Court GRANTS Defendant’s Motion for Summary

Judgment (ECF No. 55) on Counts V-VII and DISMISSES Counts II-IV WITHOUT
PREJUDICE.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 27th day of June, 2016.

20