BOUCHARD v. GE POWER & WATER

Filing 40

ORDER on Defendant's Motion for Summary Judgment denying 31 Motion for Summary Judgment By JUDGE NANCY TORRESEN. (rmb) Modified on 11/17/2015 to correct title of Order(rmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RONALD BOUCHARD,
Plaintiff,
v.
GENERAL ELECTRIC COMPANY,
Defendant.

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) Docket No. 1:14-cv-236-NT
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant General Electric’s (“GE” or
the “Defendant”) motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 as to discrimination claims by its former employee Ronald Bouchard in
violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq.
and the Maine Human Rights Act (the “MHRA”), 5 M.R.S. § 4551 et seq. (ECF No.
31). For the reasons stated below, the motion is DENIED.
BACKGROUND
At the summary judgment stage, I am obligated to view the facts in the light
most favorable to the non-moving party and make all reasonable inferences in that
party’s favor. Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013). Accordingly,
the following recitation is largely the “Plaintiff’s version” of the facts. I have arrived
at these facts through the parties’ consolidated statement of material facts, “credited
to the extent that they are either admitted or supported by record citations in
accordance with Local Rule 56, with disputes resolved in favor of the plaintiff as the

nonmovant.”1 LaFlamme v. Rumford Hosp., No. 2:13-cv-460-JDL, 2015 WL 4139478,
at *3 (D. Me. July 9, 2015).
Mr. Bouchard’s Position at GE
GE runs a steam and gas turbine component manufacturing facility in Bangor,
Maine. Consolidated Statements of Material Facts ¶ 1 (“SMF”) (ECF No. 35). Mr.
Bouchard worked as a tool designer in GE’s Bangor facility. SMF ¶ 3. Mr. Bouchard’s
job duties included designing fixtures used to hold production parts for machines and
processes, making gauges to verify those processes, and repairing and modifying tools
and machinery. SMF ¶ 4. In the course of this work, Mr. Bouchard routinely operated
machinery, including heavy machinery, such as an overhead crane used to load heavy
parts into machines. SMF ¶ 7. Mr. Bouchard’s position required clear thinking,
precision, and analytical skill, as well as some amount of attention and focus. SMF
¶ 5; Bouchard Dep. 44:15-23 (ECF No. 37-1).
GE Policies
At GE, requests for leaves of absence and reasonable accommodations are
handled by the Human Resources Department and the “CARE Management Team.”
SMF ¶ 8. The GE Bangor CARE Management Team consists of a physician—Dr.

GE closed its motion for summary judgment with a section titled: “Plaintiff may not create
genuine issues of material fact by using his errata sheet to change the substance of his deposition
testimony.” Def.’s Mem. of Law in Supp. of Mot. for Summ. J. 20 (“Def.’s Mot. for Summ. J.”) (ECF
No. 32). In support, GE cites Bruno v. Town of Framingham, No. 08-cv-11403-LTS, 2009 WL 4062177,
at *1 (D. Mass. Nov. 20, 2009) (citing Fed. R. Civ. P. 30(e)(1)), where the court struck portions of the
Plaintiff’s errata sheet that were submitted too late and without required explanations. GE has not
alleged that Mr. Bouchard’s errata sheet was untimely or lacked reasons for his changes. See Fed. R.
Civ. P. 30(e)(1). Without more explanation, it is not clear what relief GE seeks in raising this issue.
Nonetheless, I have looked at the facts both with and without Mr. Bouchard’s errata sheet changes,
and find that the result would be the same either way.

1

2

Howard Jones; a registered nurse—Ms. Cindy Whalen, RN; and a CARE Manager
from GE Health Services—Ms. Kathy Skoney. SMF ¶ 39; Smith Dep. 147:8-12 (ECF
No. 39-1); Bouchard Dep. Ex. 7 (ECF No. 37-2). The record does not clearly define the
exact functions of the HR Department versus the CARE Management Team. It is at
least clear, however, that the CARE Management Team maintains employee medical
records and is involved when an employee wants to return to work after a period of
medical leave.2 Smith Dep. 147:2-7; 148:2-5.
As a general matter, if a GE employee needs to take a leave of absence due to
a non-work related disability, GE will hold that employee’s position for a period of
twelve months. SMF ¶ 12. If an employee goes on leave due to a work-related injury,
GE will hold the employee’s position for eighteen months. SMF ¶ 94 (explaining the
distinction between leaves of absence for “workers’ compensation reasons” versus
“non-workers’ compensation reasons.”).
Mr. Bouchard’s Medical Issues and Leave
Mr. Bouchard began a medical leave of absence from GE in August of 2011 due
to kidney and lower back pain. SMF ¶ 21. Mr. Bouchard ultimately had two-thirds of
his kidney surgically removed. SMF ¶ 22. He also suffered from disc and nerve

2
In the Consolidated Statements of Material Facts, GE repeatedly refers to the CARE
Management Team as “a third party medical leave administrator contracted by GE.” See, e.g., SMF
¶ 15. In its briefing, GE attempts to distance itself from comments made by CARE Management Team
members because they were not “decisionmakers, but rather . . . employees of GE’s third party vendor
medical clinic.” Def.’s Mot. for Summ. J. 16. But the record suggests that the CARE Management Team
actually played an active role in determining whether Mr. Bouchard could return to work. I also note
that the ADA’s definition of discrimination includes “participating in a contractual or other
arrangement or relationship that has the effect of subjecting a covered entity’s . . . employee with a
disability to the discrimination prohibited by this subchapter . . . .” 42 U.S.C. § 12112(b)(2).

3

problems in the areas around his kidney. SMF ¶ 22. Between August of 2011 and
September of 2012, Mr. Bouchard was prescribed a variety of medications for his pain,
including atenolol, hydrochlorothiazide, Vicodin, oxycodone, Avinza, morphine, and
medical marijuana. SMF ¶¶ 31, 32. Mr. Bouchard used some combination of narcotic
pain medication and marijuana on a daily basis between August 2011 and January
2015. SMF ¶ 34.
Statements on Medication from CARE Management Team and GE
Personnel
During his leave of absence, Mr. Bouchard had conversations with members of
the CARE Management Team about his condition and the medications he was taking.
Specifically, Mr. Bouchard testified that he spoke with Nurse Whalen about
returning to work, but she told him that he “couldn’t come back taking medication.”
Bouchard Dep. 88:18-22. Mr. Bouchard also testified that he spoke with Dr. Jones
about his attempts to get medical clearance to return to work. But, in Mr. Bouchard’s
words, Dr. Jones told him “that he didn’t think that I should worry about getting a
note because I was taking medication and I wasn’t going to be allowed to return to
work taking the medication I’m taking.” Bouchard Dep. 114:15-18.
As he approached the end of his twelve-month leave period, Mr. Bouchard
spoke to Keith Brangwynne, an Ombudsman at GE, about his concern that “time was
running out” on his leave. Bouchard Dep. 160:2-3. Mr. Bouchard testified that Mr.
Brangwynne told him: “[W]ow, that’s heavy medication you’re taking. Yeah, we
probably don’t want you working.” Bouchard Dep. 160:6-8.

4

On August 3, 2012, Jill Smith from GE’s HR Department emailed Dr. Jones
from the CARE Management Team regarding the situation with Mr. Bouchard. Ex.
14 to 30(b)(6) Deps. (ECF No. 37-6). Ms. Smith asked Dr. Jones to contact Mr.
Bouchard, writing: “I believe he is still taking significant pain medications, which we
were not able to accommodate previously.”3 Ex. 14 to 30(b)(6) Deps. She also wrote
that Mr. Bouchard “asked how long it would take to get the pain meds/levels out of
his system (so that he might be able to attempt to return to work). Again, I asked him
if he thought it was realistic/reasonable to consider returning to work, and I don’t
think he really thinks it is, but is trying to avoid his employment ending.”4 Ex. 14 to
30(b)(6) Deps.
On August 13, 2012, the day he was terminated from GE, Mr. Bouchard spoke
to his former manager, Maurice “Moe” Fournier, who was then GE’s Manager of
Quality Assurance. Bouchard Dep. 153:13-17; May 18, 2015 Fournier Decl. ¶ 1 (ECF

GE qualifies this statement, as Ms. Smith testified that she herself was not aware of any time
prior to August 3, 2012 when GE personnel told Mr. Bouchard that the company would not
accommodate his pain medication. Smith Dep. 170:7-11. Ms. Smith testified that this idea “may” have
come from Mr. Bouchard himself. Smith Dep. 169:12-14. Because at this stage I draw all inferences in
the non-moving party’s favor, I find that it is also possible that Ms. Smith’s understanding that GE
did not accommodate Mr. Bouchard’s pain medication previously came from someone other than Mr.
Bouchard himself.
3

4
Mr. Bouchard asserts that Ms. Smith’s email to Dr. Jones “reflects that Mr. Bouchard asked
about quitting all his pain medications so he would be allowed to return to his normal duty work.”
SMF ¶ 101. GE objects to Exhibit 14 as hearsay. Mr. Bouchard counters that this email, written by
Ms. Smith from GE’s HR department, is an admission of a party opponent. Under Federal Rule of
Evidence 801(d)(2)(D), a statement is “not hearsay” if it “is offered against an opposing party and was
made by the party’s agent or employee on a matter within the scope of that relationship and while it
existed.” Here, Mr. Bouchard offers the statement against GE, and it was made by an employee in
GE’s HR department. Thus, it is “not hearsay” under Rule 801(d)(2)(D). To the extent the email
contains a question from Mr. Bouchard to Ms. Smith, that question is not a “statement” under Federal
Rule of Evidence 801(a), and thus is not hearsay under Rule 801(c). See United States v. Love, 706 F.3d
832, 840 (7th Cir. 2013).

5

No. 37-7). Mr. Bouchard explained to Mr. Fournier that he had asked for
accommodations, but was told he could not return to work because of his medications.
Bouchard Dep. 153:19-23. Mr. Bouchard testified that “Moe specifically told me that
we don’t want people on the floor taking medication.” Bouchard Dep. 153:23-24.
The record includes evidence of the medications Mr. Bouchard was taking and
the general requirements of his tool designer position. The record lacks evidence,
however—from an expert or otherwise—on whether Mr. Bouchard’s medications were
incompatible with performing the tool designer job.5
Medical Clearance & Application of GE’s “Break in Service” Policy
In June of 2012, GE Human Resources Manager Megan Danyi reached out to
Mr. Bouchard by telephone and letter to remind him of his upcoming twelve-month
“break in service” date. SMF ¶ 49. The letter stated, in part:
Our records indicate that as of August 13, 2012, you will have been out
of work for 12 consecutive calendar months as a result of an illness or
injury. Your employment status and service credits have been continued
since your last day of work on August 12, 2011. This letter is to advise
you that, under GE policy, this service continuation will cease and your
employment status will terminate on August 13, 2012.
[…]
If you believe you will be able to return to work, either prior to or shortly
after the break in service date, either with or without the need for
reasonable accommodations, please contact your Care Coordinator or
me as soon as possible so we can discuss the Company’s ability to provide
any necessary reasonable accommodations. Please contact us within the
next 10 days to discuss this issue.

5
It may be that operating heavy machinery and taking pain medications are incompatible, but
without record support, that is an inappropriate inferential leap at the summary judgment stage.

6

SMF ¶ 50.
Following receipt of this letter, Mr. Bouchard contacted Ms. Danyi to request
an extension of his leave period. SMF ¶ 52. Ms. Danyi told Mr. Bouchard that GE
could extend his leave for a short period of time, if he provided medical certification
clearing him to return to work on a specific date. SMF ¶ 52. Put differently, GE was
not willing to consider any extension of leave, for any length of time, beyond the
twelve-month mark without a medically-backed date-certain for return.6
After receiving this letter, Mr. Bouchard met with Ms. Danyi and others to
discuss his options. SMF ¶ 53. The parties dispute whether Mr. Bouchard indicated
at this June 2012 meeting that he was not yet ready to return to work.7 SMF ¶ 54.
The parties do, however, agree that Mr. Bouchard did not at this time have medical
clearance from a doctor to return to work, with or without accommodations. SMF
¶ 54.

6
GE admits the following facts: (1) “Jill Smith told Ron Bouchard that he needed a set date for
return to work, and that he couldn’t get an accommodation until he had a set date,” SMF ¶ 87; and (2)
“Megan Danyi told Ron Bouchard that a limited extension of a leave of absence may be possible in
cases where a specific return to work date that is close to the 12-month break in service date is provided
in advance of the termination.” SMF ¶ 99.
7

Mr. Bouchard testified as follows on this point:
Q: Okay. Did you indicate at that meeting that you were ready to return to work?
That’s just a yes or no.
A: I don’t think so. I may have.
Q: I don’t want the may haves. I’m not trying to interrupt you either.
A: No. No, I’m sorry.
Q: Okay.
A: No.

Bouchard Dep. 142:24-143:6. The record reads as a “no” on the question of whether Mr. Bouchard was
ready to return to work in June of 2012. But whether he indicated that he was ready to return to work
two months before his break in service does not affect the outcome here.

7

The parties also agree that Mr. Bouchard never obtained medical certification
stating that he could return to work with or without reasonable accommodations.
SMF ¶ 57. But the parties disagree as to whether Mr. Bouchard was working on
getting that certification, if he was, how close he might have been to obtaining it, and
further, whether Dr. Jones discouraged him from getting medical certification in the
first place. SMF ¶¶ 58; 89, 105. Mr. Bouchard testified as follows on these points:
Q: You mentioned at the end of your time on leave in August of 2012
after having been out of work for a year from GE, you had bleeding
around your kidney; right?
A: Correct.
Q: Were you in a position to return to work at that time?
A: Basically, a conversation that I had with my physician was that if I
felt comfortable going back to work, that she would back me.
Q: But you didn’t get that backing; is that correct?
A: I called Dr. Jones and discussed it with him, and he recommended
that I not even go do it, because he felt I was going to need another
surgery on my kidney.
Q: Did your doctor give you a note at that time in August of 2012 to
return you back to work?
A: No.
[…]
Q: Okay. What did you believe that GE failed to do for you at that time
in August of 2012 that you allege was discriminatory?
A: Basically, I felt that not—that being allowed more time to clarify what
was going on with my kidney, when I hear from other people that there
were instances where they were allowing extensions, and also of other
employees taking medication at the plant, and me being told that I
couldn’t return to work because I was taking medication.
Bouchard Dep. 101:10-102:15.
Q: But the response that you’re looking for, which was—what was the
response you were looking for?
A: I was hoping that I could get an extension so I could keep my job.
Q: I understand.
A: Okay.
8

Q: Was there anything else that you were looking for in terms of an
accommodation?
A: Yeah. I mean, if it was determined that I was going to have to be on
medication, I was hoping that I could return to work on medication and
prove that I could do my job.
Q: But at no time did you receive a note from a doctor saying that you
were ready to attempt to make that proof; isn’t that correct?
A: Partially.
Q: Okay.
A: My physician that was my physician at the time knew that I went to
see this doctor in Portland and that I only got in there to see him for a
couple of minutes. Her and I were under the understanding that if I
wanted to return to work, all I needed to do was call her, and if I would
take the responsibility or whatever, that she would okay me returning
to work.
Q: When you say take the responsibility—
A: That’s me putting words in there.
Q: Okay. What do those words mean?
A: Basically if it was comfortable—if I felt comfortable going back to
work, that she would back me.
Q: And you never went to get that backing—
A: I called her—oh, I’m sorry.
Q: That’s okay. Just let me finish the question. You never went to get
that backing until August of 2012 on the eve of your break in service; is
that correct?
A: No.
Q: When did you go to get that backing?
A: It was about five days before my termination date.
Bouchard Dep. 166:3-167:22.
A: The day I spoke with Dr. Jones [near the end of the 12-month leave],
I put in a call to my primary care physician seeking a doctor’s note. And
I made Dr. Jones aware of that phone call that I called to try to get a
note.
Q: Who did you call?
A: Leah Hebert.
Q: You didn’t get a note from Hebert, though, did you?
A: I didn’t because she was out of town.
Bouchard Dep. 104:7-14. Mr. Bouchard did not return to work on August 13, 2012; he
was terminated from his employment with GE that same day. SMF ¶¶ 70, 71.

9

Return to Work on a Part-Time Basis
There is also evidence in the record that Mr. Bouchard inquired about
returning to work on a part-time basis. Specifically, he spoke with Nurse Whalen
before his break in service date about returning to his tool designer position parttime. Bouchard Dep. 171:12-24. In addition, HR Generalist Jill Smith’s notes from a
May 30, 2012 telephone conversation with Mr. Bouchard include: “goal to get back to
work-back part time?” Smith Dep. 158:9-14; 159:23-160:2; Ex. 8 to 30(b)(6) Deps.
(ECF No. 37-6). Mr. Bouchard did not, however, have medical clearance to return to
work part-time at the time GE terminated him. Bouchard Dep. 116:24-117:3; 149:37; 151:4-7; 152:19-22; 171:25-172:2.
Hardship for GE
The parties agree that Mr. Bouchard’s absence caused GE to incur overtime
costs, outsource or leave unfinished certain production and design work, manage
difficult scheduling issues, and absorb lower production levels. SMF ¶ 46.
LEGAL STANDARD
Summary judgment is only appropriate if the moving party “shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if ‘the evidence about
the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.’ ” Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting
Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if
it has potential to determine the outcome of the litigation.” Id.
10

On a motion for summary judgment, the Court construes the record in the light
most favorable to the non-movant and resolves all reasonable inferences in the nonmovant’s favor. Id. “Thus, ‘to survive summary judgment a plaintiff is not required
to rely only on uncontradicted evidence.’ ” Sensing v. Outback Steakhouse of Fla.,
LLC, 575 F.3d 145, 153 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep’t of Justice,
355 F.3d 6, 19 (1st Cir. 2004)). Instead, “[w]here the record contains inconsistencies
‘that favor in some lights the defendants and in others the plaintiff,’ as long as the
‘plaintiff’s evidence is both cognizable and sufficiently strong to support a verdict in
her favor, the factfinder must be allowed to determine which version of the facts is
most compelling.’ ” Id. (quoting Calero-Cerezo, 355 F.3d at 19).
DISCUSSION
Mr. Bouchard presses two distinct claims of discrimination against GE under
the ADA and MHRA8: (1) intentional discrimination (or “disparate treatment”); and
(2) failure to accommodate.9 First Am. Compl. ¶¶ 9-18 (ECF No. 11). I address
whether summary judgment is appropriate as to each claim below.

The First Circuit has observed that “[g]enerally, disability-related claims under the MHRA are
‘construed and applied along the same contours as the ADA.’ ” Kelley v. Corr. Med. Servs., Inc., 707
F.3d 108, 115 n.12 (1st Cir. 2013) (quoting Dudley v. Hannaford Bros. Co., 333 F.3d 299, 312 (1st Cir.
2003)).
8

9
The Plaintiff’s Complaint consists of one count of “Disability Discrimination/Failure to
Accommodate.” First Am. Compl. ¶¶ 9-18. I follow the parties’ lead and treat this count as making out
two separate claims of discrimination. See Def.’s Mot. for Summ. J. 2; Pl.’s Mem. of Law in Opp’n to
Def.’s Mot. for Summ. J. 4, 8 (“Pl.’s Opp’n”) (ECF No. 33); see also Floyd v. Lee, 968 F. Supp. 2d 308,
315 (D.D.C. 2013) (internal citations and footnote omitted) (“Claims of discrimination under the ADA
can take one of four forms: intentional discrimination (or ‘disparate treatment’), disparate impact,
hostile work environment, and failure to accommodate.”).

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I.

Disparate Treatment
To prevail on a disparate treatment claim, an employee must prove “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-Echevarria v. Pichis, Inc., 659 F.3d 182, 186 (1st Cir. 2011). An employee may
prove these elements “by presenting direct evidence of discrimination” or “indirectly
‘by using the prima facie case and burden shifting methods that originated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668
(1973).” Id. (quoting Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 511 (1st Cir. 1996)).
Mr. Bouchard proceeds through the McDonnell Douglas framework.
Under the McDonnell Douglas burden-shifting framework, the plaintiff must
Offer evidence sufficient to establish that he “(i) has a disability within
the meaning of the [ADA]; (ii) is qualified to perform the essential
functions of the job, with or without reasonable accommodations; (iii)
was subject to an adverse employment action by a company subject to
the [ADA]; (iv) was replaced by a non-disabled person or was treated less
favorably than non-disabled employees; and (v) suffered damages as a
result.”
Ramos-Echevarria, 659 F.3d at 186 (quoting Jacques, 96 F.3d at 511). If the plaintiff
makes this showing, “the burden shifts to the employer to articulate a legitimate,
non-discriminatory reason for its action.” Id. at 186-87. If the employer articulates
such a reason, the burden shifts back to the plaintiff to show that the employer’s
reason is actually pretext for discrimination. Id. at 187. GE asserts that Mr. Bouchard
has failed to raise any triable issues of fact as to: (1) whether Mr. Bouchard was
qualified to perform the essential functions of his tool designer job, with or without
12

reasonable accommodations; and (2) whether GE’s stated reason for terminating Mr.
Bouchard was pretextual. Def.’s Mem. of Law in Supp. of Mot. for Summ. J. 10-17
(“Def.’s Mot. for Summ. J.”) (ECF No. 32).
A.

“Qualified Individual”

GE argues that Mr. Bouchard has failed to establish a genuine issue of
material fact as to whether he was qualified to perform his job with or without a
reasonable accommodation. Def.’s Mot. for Summ. J. 11-12. Specifically, GE
maintains that Mr. Bouchard cannot show he was qualified because he did not have
medical clearance to return to work or a physician-endorsed return-to-work date by
the end of his one-year leave. Def.’s Mot. for Summ. J. 11-12. Mr. Bouchard counters
that comments from the CARE Management Team and GE employees caused him to
believe that getting medical clearance would be futile, but that he was nonetheless
working on getting medical clearance when he was terminated, he just needed more
time to get it. Pl.’s Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. 4, 8. (“Pl.’s
Opp’n”) (ECF No. 33). Mr. Bouchard explains that “had the medical staff not told
[him] that he couldn’t work while on medications, [he] would have obtained a return
to work note from his doctor before his break in service date. The lack of specificity
in [his] request for an extension was a direct result of the information he had been
given by GE’s medical clinic staff.” Pl.’s Opp’n 6.
The ADA defines a “qualified individual” as one
[W]ho, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual
holds or desires. For the purposes of this subchapter, consideration shall
be given to the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description before
13

advertising or interviewing applicants for the job, this description shall
be considered evidence of the essential functions of the job.10
42 U.S.C. § 12111(8). There are indeed examples of courts granting summary
judgment in favor of employers where employees have not obtained medical clearance
to return to work and cannot say when they will be able to return. See Def.’s Mot. for
Summ. J. 11-12 (collecting cases). But none of these cases share the unique facts of
this case, and thus do not address how this “qualified individual” analysis should
apply where there is evidence that the employer told the employee he could only
return to work if he was off all medication.
It is true that employers may make medical inquiries and require medical
examinations that are relevant to a returning employee’s ability to do the job. See 42
U.S.C. § 12112(d)(4)(B); 29 C.F.R. § 1630.14(c); see also EEOC Enforcement
Guidance: Disability—Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (ADA), Job-Related and Consistent with
Business

Necessity,

Part

C.17

(July

27,

2000),

http://www.eeoc.gov/policy/docs/guidance-inquiries.html. But that right is not
limitless—such inquiries must be related to whether the employee can “perform jobrelated functions.” 42 U.S.C. § 12112(d)(4)(B). Considered in the light most favorable
to Mr. Bouchard, the record supports an inference that GE required Mr. Bouchard to
be off all medications, not just medications that prevented him from performing the
essential functions of the tool designer position. Thus, the outcome here may have

10
The present record does not include information from GE about the essential functions of the
tool designer position, just information from Mr. Bouchard himself. See SMF ¶¶ 4-7.

14

been different if the record demonstrated that Mr. Bouchard’s particular medications
prevented him from performing the essential functions of the tool designer position,
but at this point, it does not.
Accordingly, accepting for purposes of summary judgment that GE personnel
and CARE Management Team members told Mr. Bouchard he could not return to
work on medication, I find that the question of whether Mr. Bouchard was “qualified”
remains open.
B.

Pretext

GE maintains that Mr. Bouchard was terminated because he did not return to
work after his twelve-month leave, nor could he give a medically-backed date-certain
for his return. Def.’s Mot. for Summ. J. 12, 15. But there is enough evidence in the
record to create a triable issue of fact as to whether that reason was pretextual.
As described above, Mr. Bouchard has pointed to statements from CARE
Management Team members—the individuals tasked, along with HR, with
determining whether he could come back to work—that GE did not want him
returning to work while on medication.11 Likewise, there is a statement from Mr.
Bouchard’s former manager that GE did not want people “on the floor taking
medications.” Bouchard Dep. 153:23-24. A reasonable jury could find a close enough
nexus between being on prescribed medication and being disabled to find that

11
I do not agree with GE’s characterization of these statements, because I find that a jury could
view them as more than “isolated, off-hand comments by non-decisionmakers expressing concern for
Plaintiff’s well-being.” Def.’s Mot. for Summ. J. 16. The record suggests that members of the CARE
Management Team played an active role in determining whether Mr. Bouchard could return to work.
See Ex. 14 to 30(b)(6) Deps. (ECF No. 37-6); Smith Dep. 148:2-5; Ex. 25 to Bouchard Dep. (ECF No.
37-2). GE has not identified the actual decision makers(s) responsible for Mr. Bouchard’s termination.

15

discrimination on the basis of taking medication constitutes discrimination on the
basis of disability. See Scruggs v. Berg Spiral Pipe Corp., No. 14-339-CG-B, 2015 WL
3830983, at **5-6 (S.D. Ala. June 22, 2015) (denying summary judgment where
employer’s proffered reason for terminating employee—that his use of muscle
relaxers could impair his ability to work in a “safety sensitive environment”—could
be pretext for discrimination based on his back condition). Fact issues remain as to
whether GE’s stated reason for termination—namely, application of its break in
service policy—was actually pretext for discrimination based on Mr. Bouchard’s
disability.
II.

Failure to Accommodate
In order to make out a failure to accommodate claim under the ADA, a plaintiff

must show
[T]hat he is a qualified individual with a disability within the meaning
of the applicable statute; that he works (or worked) for an employer
whom the ADA covers; that the employer, despite knowing of the
employee’s physical or mental limitations, did not reasonably
accommodate those limitations; and that the employer’s failure to do so
affected the terms, conditions, or privileges of the plaintiff’s
employment.
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). The
parties dispute whether Mr. Bouchard has presented enough evidence to demonstrate
that he was a “qualified individual,” and if so, whether GE failed to reasonably
accommodate his disability.12

12
For the same reasons discussed above with respect to his disability discrimination claim, I find
that there is an issue of fact as to whether Mr. Bouchard was a “qualified individual” for purposes of
his failure to accommodate claim. I therefore focus here on whether there are material issues of fact
as to whether GE failed to reasonably accommodate Mr. Bouchard.

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Failure to accommodate claims under the ADA require “difficult, fact intensive,
case-by-case analyses, ill-served by per se rules or stereotypes.” Garcia-Ayala v.
Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000). It is thus unsurprising
that at least one district court has observed that “[t]he issue of whether an
accommodation is reasonable is normally a question of fact, unsuited for a
determination on summary judgment.” Scalera v. Electrograph Sys., Inc., 848 F.
Supp. 2d 352, 367 (E.D.N.Y. 2012). This case is no exception. Summary judgment in
favor of GE would only be appropriate if I ignored the First Circuit’s instructions and
applied per se rules.
GE requests that I apply the per se rule that a request for “indefinite” leave
cannot be a reasonable accommodation. Def.’s Mot. for Summ. J. 17-18. GE urges that
Mr. Bouchard’s request to extend his leave was “indefinite” because he did not couple
it with a physician-backed return-to-work date. Def.’s Mot. for Summ. J. 18. The case
law generally lines up on that basis—namely, whether the plaintiff asked for a
specific extension versus an open-ended one. Compare, e.g., Henry v. United Bank,
686 F.3d 50, 60-61 (1st Cir. 2012) (affirming summary judgment under the
Massachusetts analogue to the ADA where, at her date of termination, employee
could not work or provide a relative timeframe for her return), with Garcia-Ayala,
212 F.3d at 648 (reversing grant of summary judgment where employee requested a
finite leave extension). But applying that binary would not account for the factual
nuances in this case—namely, statements from CARE Management Team members
and GE personnel regarding Mr. Bouchard’s medications.

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As discussed above, there is evidence in the record that GE personnel and
CARE Management Team members told Mr. Bouchard he could not return to work
on medication. A reasonable jury could find that Mr. Bouchard believed he had to be
medication-free before he could resume work for GE. GE admits that it would not
discuss any reasonable accommodation with Mr. Bouchard without a physicianbacked return-to-work date. The medication issue thus created an additional hurdle
for Mr. Bouchard before GE would even discuss a leave extension. I cannot say, as a
matter of law, that GE reasonably accommodated Mr. Bouchard where there is
evidence that it would not discuss accommodation until he produced a medicallybacked date-certain for a medication-free return to work.
CONCLUSION
For the reasons stated above, the Court DENIES Defendant GE’s motion for
summary judgment (ECF No. 31).

SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 17th day of November, 2015.

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