WEBB v. TOWN OF ORONO

Filing 46

MEMORANDUM OF DECISION granting in part and denying in part 33 Motion for Summary Judgment By MAGISTRATE JUDGE JOHN C. NIVISON. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NORMAN E. WEBB,
Plaintiff,
v.
TOWN OF ORONO,
Defendant

)
)
)
)
)
)
)
)
)

1:14-cv-00246-JCN

MEMORANDUM1 OF DECISION ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff Norman Webb alleges that Defendant Town of Orono unlawfully
terminated his employment. More specifically, Plaintiff maintains that Defendant terminated his
employment because of his age and physical disability, and because he filed an administrative
discrimination claim.
The matter is before the Court on Defendant’s Motion for Summary Judgment. (Motion,
ECF No. 33.) Through its motion, Defendant contends that the record does not support any of
Plaintiff’s claims. Following a review of the record, and after consideration of the parties’
arguments, the Court grants in part and denies in part the motion.
BACKGROUND
Plaintiff Norman Webb worked for the Defendant from August 1983 to June 14, 2012.
(Pl.’s Statement of Additional Material Facts (PSAMF) ¶ 49.)2 On his last day of work for
Defendant, Plaintiff was 61 years of age. (Id. ¶ 50.) At the end of his employment, Plaintiff was

1

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have United States Magistrate Judge John C. Nivison
conduct all proceedings in this case, including trial, and to order entry of judgment.

2

Citation to Plaintiff’s Statement of Additional Material Facts is meant to include a citation to Defendant’s Reply
Statement of Material Facts (ECF No. 40).

serving as Chief of the Fire Department in accordance with a written contract that provided for a
term of December 21, 2009, through December 31, 2012. (Id. ¶ 5.)
Defendant’s Town Manager, Sophia Wilson, began working in that capacity on April 1,
2011. (Def.’s Statement of Material Facts (DSMF) ¶ 1.)3 Because Ms. Wilson believed that the
Defendant’s Town Council hired her to be a “hands-on” manager, she was involved in the day-today operations of the Town, worked closely with the department heads, held the department heads
accountable for the responsibilities of their positions, and tried to stay informed about
developments in all of the departments. (Id. ¶ 2.)
In April 2011, after some emergency medical service records were determined to be
missing, Plaintiff was notified that “notice of counseling” by which notice Ms. Wilson informed
Plaintiff that he must review the Fire Department’s HIPPA policies and procedures. (Id. ¶ 12.)4
Ms. Wilson subsequently authorized Plaintiff to place a lock on the administrative wing of the Fire
Station, provided that he always informed her and the police chief of the current code to ensure
that they could access the Fire Station. (Id.)
In or around January 2012, with the term of Plaintiff’s employment agreement set to expire
in approximately 11 months, Ms. Wilson met with Plaintiff, and asked him how much longer he
planned to work as Fire Chief. Plaintiff advised that he wanted to work until he was 66 years old.
(Id. ¶ 6.) Ms. Wilson maintains that she did not know Plaintiff’s age at that time, and asked
Plaintiff about his plans for the purpose of succession planning. (Id. ¶ 7.) She did not mention

3
Citation to Defendant’s Statement of Material Facts is meant to include a citation to Plaintiff’s Responsive Statement
of Material Facts (ECF No. 35-2).
4

Defendant has a graduated or progressive disciplinary policy consisting of (1) an oral warning; (2) a written warning;
(3) suspension; and (4) termination. (Id. ¶ 78.)

2

succession planning in her meeting with Plaintiff.5 (Id.) During the meeting, when it was obvious
that Plaintiff was having difficulty walking, Ms. Wilson asked Plaintiff about his difficulty, and
he informed her that he needed to have his knees replaced. (Id. ¶ 8.) Plaintiff’s condition did not
render him unable to perform his job and he could satisfy the physical requirements of the annual
physical. (PSAMF ¶¶ 54 – 55.) In April 2012, when they were walking together, Ms. Wilson said
to Plaintiff, “You’re walking kind of rough, your knees must be in bad shape.” (Id. ¶ 56.)
On May 26, 2012, Police Sergeant Wilcox reported that one of the Fire Department’s
employees acted inappropriately while responding to an automobile accident on the Main Street
bridge (the bridge incident). (DSMF ¶ 9.) Ms. Wilson met with Plaintiff and Police Chief Gary
Duquette to discuss the bridge incident, and she instructed Plaintiff to conduct an investigation.
(Id. ¶ 10; PSAMF ¶ 58.) Plaintiff learned of the bridge incident five minutes prior to the meeting.
(PSAMF ¶ 60.) At the bridge incident, six police officers and two firefighters were present.
Following the meeting, Plaintiff received reports from the other firefighter EMT who was on the
scene, and from the employee under investigation; Plaintiff provided copies of the reports to Ms.
Wilson and Chief Duquette. (Id. ¶ 61.)
On or about June 4, 2012, after an evening meeting with the Town Council, Ms. Wilson
attempted to enter the Fire Station, but could not access the station because her code for the key
panel lock was no longer valid. (Id. ¶ 11.) On June 5, Plaintiff and Ms. Wilson met for their
regular weekly meeting, and Ms. Wilson asked Plaintiff the reason for her inability to access with
the code the administrative wing of the Fire Station. (Id. ¶ 14.) Plaintiff advised that he changed
the code on June 1, without informing Ms. Wilson or Chief Duquette, because he did not believe

5

Plaintiff states that Ms. Wilson never discussed with him who might be a good choice to replace him as fire chief.
(PSAMF ¶¶ 67 – 68.)
3

that probation and parole should be able to access and use the conference room in the Fire
Department’s administrative wing. (Id. ¶ 15.)
At the same meeting, Ms. Wilson asked Plaintiff about his investigation into the bridge
incident.

Plaintiff reported that he had not found any wrongdoing on behalf of the Fire

Department’s employees, that he believed the Police Department personnel should have intervened
if there was an issue, and that he had not prepared a written report regarding the investigation.6
(DSMF ¶ 16.) At the time, Plaintiff had obtained statements from the two EMTs at the scene, and
had asked the medical director and the fire chief of Old Town to review the EMS run sheets; they
had reported nothing amiss.7 (Id. ¶ 17.)
On June 6, Plaintiff met with Ms. Wilson and a human resources consultant. Ms. Wilson
explained her concerns about Plaintiff’s work performance, including her concerns about conduct
that she believed amounted to insubordination. (Id. ¶ 18.)8 Ms. Wilson never provided Plaintiff
with any written disciplinary action other than with respect to the HIPPA matter. (PSAMF ¶ 69.)
Ms. Wilson also did not raise any issues regarding the operation of the Fire Department. (Id. ¶
72.)
Ms. Wilson specifically discussed Plaintiff’s refusal to work cooperatively with Police
Chief Duquette, and his derogatory comments about the police department to Sergeant Wilcox as

6

Ms. Wilson had not requested a written report.

7

Plaintiff asserts that his investigation was “still ongoing” (Webb Affidavit ¶ 8) and that he was “actively investigating
the circumstances” (PSAMF ¶ 63) when his employment was terminated. However, at his deposition, Plaintiff
testified that he reported to Ms. Wilson that he found no wrongdoing. (Webb Deposition at 53:14–18.)

8

In his affidavit, Plaintiff asserted that Ms. Wilson’s complaints about his performance were limited to his decision
to change the access code without notifying her and the fact that he did not get along well with the police chief. (Webb
Affidavit ¶ 6.)

4

part of his investigation of the bridge incident. (DSMF ¶ 19.)9 Chief Duquette is several years
younger than Plaintiff. (PSAMF ¶ 109.) Because the day before Plaintiff spoke with Sergeant
Wilcox, Ms. Wilson met with Plaintiff and Chief Duquette to emphasize that it was important for
them to work together in connection with the bridge incident, Ms. Wilson interpreted Plaintiff’s
derogatory remarks as defiant of her directive to work collaboratively.10 (DSMF ¶ 20.) Plaintiff
and Ms. Wilson also discussed Plaintiff’s unilateral decision to change the lock on the Fire Station,
including her belief that his actions constituted insubordination. During the discussion, Ms.
Wilson learned that Plaintiff still had not given the new code to the police chief. (Id. ¶ 21.)
At the conclusion of the June 6 meeting, Ms. Wilson directed Plaintiff to develop a concrete
plan to restore her confidence in his ability to lead the Fire Department.11 (Id. ¶ 23.) Plaintiff
committed to work on his relationship with the police chief, talk with Ms. Wilson more often, and
provide Ms. Wilson with more details about the Fire Department’s operations and any issues that
he might have to address within the Fire Department. (Id. ¶ 24.) Ms. Wilson and the consultant
informed Plaintiff that he needed to provide specific, quantifiable steps that could be evaluated,
and that broad statements about ill-defined goals were not acceptable. (Id. ¶ 25.) At the conclusion
of the meeting, Plaintiff understood that Ms. Wilson had given him a list of matters that he needed
to work on, that his job was in jeopardy, and that she wanted to meet the next day, June 7, to
discuss his concrete plan. (Id. ¶ 26.) Ms. Wilson asked Plaintiff to provide specific ways that he

9

Plaintiff’s deposition testimony reflects that Sergeant Wilcox informed Ms. Wilson that when Plaintiff spoke with
Sergeant Wilcox about the bridge incident, Plaintiff discussed the actions or inactions of police personnel at the scene.
(Webb Dep. at 39, PageID # 115.)

10
Plaintiff asserts that he tried to work with the police chief, but that Chief Duquette resisted his efforts and would
cancel training sessions he had set up. (PSAMF ¶ 65.)
11

Ms. Wilson did not provide Plaintiff with any written directives. Plaintiff also states that to his recollection he did
not fail to follow any of Ms. Wilson’s oral directives. (PSAMF ¶ 66.)

5

planned to change. (Id. ¶ 29.) Plaintiff maintains that he “had no idea what Ms. Wilson was
looking for” and “had no idea what was wrong” other than the access code and his discord with
the police chief. (PSAMF ¶ 73.)
On June 7, Ms. Wilson met with Plaintiff to afford him an opportunity to present his
specific plan to restore her confidence in his ability to lead the Fire Department. (DSMF ¶ 27.)
Plaintiff appeared at the meeting with some notes, but he did not present a written plan.12 When
Ms. Wilson asked him for the specific measures that he planned to implement, Plaintiff said that
he was going to work on his relationship with the police chief and talk with Ms. Wilson more
often. (Id. ¶ 28.) Ms. Wilson told Plaintiff that she would think about the situation over the
upcoming weekend, and that they would meet again the following week. (Id. ¶ 31.)
On June 12, Plaintiff and Ms. Wilson met for their regular weekly meeting. (Id. ¶ 32.)
According to Ms. Wilson, they discussed the status of Plaintiff’s investigation into the bridge
incident. (Id.)13 Ms. Wilson informed Plaintiff that his report that the Fire Department did not
engage in any wrongdoing and that the matter was closed did not constitute a sufficient
investigative report. (Id. ¶ 33.) At the end of the meeting, Ms. Wilson told Plaintiff that the human
resources consultant was out of town, but that the three of them would meet again on June 14. (Id.
¶ 36.)
When Plaintiff asked about the possible outcome of the meeting, Ms. Wilson said that
Plaintiff could potentially remain employed under an agreement providing him with a final

12

Plaintiff states that Ms. Wilson did not ask for a written plan. (Plaintiff’s Responsive Statement of Material Facts ¶
27). The transcript of Plaintiff’s deposition reflects that Plaintiff testified that he had a plan, but Ms. Wilson did not
ask him for it. (Webb Dep. at 71:13–17.) When asked whether he had left the meeting the day before knowing they
would meet the next day to discuss his concrete written plan, Plaintiff responded, “I guess so. I don’t really know. I
don’t really understand your question.” (Id. at 72:12–23.)
13

Plaintiff offers a qualification that he “does not recall” discussing the bridge incident. (Plaintiff’s Responsive
Statement of Material Facts ¶ 32.)
6

opportunity to address the issues of concern, or Plaintiff could be separated from his employment.
(Id. ¶ 37.) As Plaintiff left the meeting on June 12, he knew that his employment might end at the
June 14 meeting. (Id. ¶ 38.)
On June 13, Ms. Wilson consulted with the Town’s attorney, and she had a draft separation
agreement prepared for use at the meeting with Plaintiff the following day. (Id. ¶ 39.) Plaintiff,
through counsel, filed a complaint alleging discrimination with the Maine Human Rights
Commission (MHRC) and the Equal Employment Opportunity Commission (EEOC) on June 13.
(Id. ¶ 40.) Ms. Wilson received a copy of Plaintiff’s MHRC/EEOC complaint on June 14, shortly
before the meeting that she had scheduled with Plaintiff and the human resources consultant. (Id.
¶ 41.)
At the June 14 meeting, Ms. Wilson was not satisfied with the information provided by
Plaintiff because in her view, he did not present her with a specific plan to restore her confidence
in his ability to lead the Fire Department. (Id. ¶ 44.) Ms. Wilson provided Plaintiff with a copy
of his employment agreement and asked him to review Section 2.C., a provision that authorizes
the termination of employment without cause with the payment of four months’ salary. (Id. ¶ 45.)
Ms. Wilson told Plaintiff that while she believed there were adequate grounds to terminate his
employment for cause, given his years of service to the Town, she wanted to terminate his
employment agreement without cause pursuant to Section 2.C. (Id. ¶ 46.) Ms. Wilson also gave
Plaintiff a draft separation agreement, which proposed that Plaintiff receive six months of
severance pay in exchange for a voluntary resignation; Plaintiff rejected the proposal. (Id. ¶ 47.)
Ms. Wilson then terminated Plaintiff’s employment with Defendant, citing the “without cause”
provision of his employment agreement. (Id. ¶ 48.)

7

The prior town manager had given Plaintiff positive evaluations, and Plaintiff had never
received a negative evaluation as fire chief in 5 – 6 years. (Plaintiff’s Statement of Additional
Material Facts ¶ 80.) Plaintiff’s attendance was outstanding and under his leadership, the Fire
Department was typically under budget. (Id. ¶ 94.)
Beginning in January 2012, seven of Defendant’s department heads had either resigned
from their employment or had their employment terminated. (PSAMF ¶ 76.)14 The age of the
work force is a factor in the way health insurance rates for Defendant are determined. (Id. ¶ 88.)
Defendant’s experience rating became a factor in health insurance rates as of January 2012 when
it reached 60 employees. (Id. ¶ 89.) Annie Brown, Defendant’s treasurer/tax collector and a 37year employee, and Ms. Wilson discussed the Town’s health insurance rates and reviewed the
quarterly printout of claims from MMA, but never discussed taking any measures to reduce the
rates. (Id. ¶ 90.)
Ms. Wilson hired a finance director, Matt Currier, who was then approximately 26 years
old. Ms. Wilson also designated Mr. Currier as Ms. Brown’s supervisor. (Id. ¶ 95.) Previously,
Ms. Brown had never had a supervisor other than the assistant Town Manager. Robert St. Louis,
who was in his mid-40s, replaced Plaintiff as fire chief. (Id. ¶ 100.)
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant 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). “After the moving party has presented evidence in support of its motion for summary
judgment, ‘the burden shifts to the nonmoving party, with respect to each issue on which he has
the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.’”

14

Ms. Wilson became town manager in April 2011. Some of the other employees suggest that age was a factor in
their separation from employment. (Plaintiff’s Statement of Additional Material Facts ¶¶ 91, 111.)
8

Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 158 (1st Cir.1998)).
The Court reviews the factual record in the light most favorable to the non-moving party,
resolving evidentiary conflicts and drawing reasonable inferences in the non-movant’s favor.
Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If the Court’s review of the record reveals
evidence sufficient to support findings in favor of the non-moving party on one or more of his
claims, a trial-worthy controversy exists, and summary judgment must be denied to the extent a
claim is supported by the record. Unsupported claims are properly dismissed. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal purposes of the summary judgment
rule is to isolate and dispose of factually unsupported claims or defenses.”).
DISCUSSION
Plaintiff asserts three claims, based on violations of the Maine Human Rights Act and the
Age Discrimination in Employment Act: age discrimination (Count I), disability discrimination
(Count II), and retaliation (Count III).15 Defendant argues that the record evidence does not and
cannot support Plaintiff’s claims.
A.

Age Discrimination
To prove wrongful termination based on age, Plaintiff must show that age was the

“determinative factor” in Defendant’s termination decision; that but for his age, he would not have
been fired. Del Valle-Santana v. Servicios Legales De Puerto Rico, Inc., ___ F.3d ___, No. 142057, 2015 WL 6143389, at *2 (1st Cir. Oct. 20, 2015) (citing Freeman v. Package Mach. Co.,
865 F.2d 1331, 1335 (1st Cir. 1988)). Absent direct evidence of discriminatory bias, and the record

15

As this Court has previously observed, Maine and federal discrimination claims are ordinarily evaluated using the
same standards. E.g., Donahue v. Clair Car Connection, Inc., 736 F. Supp. 2d 294, 315 (D. Me. 2010) (addressing
claims under the MHRA and the ADEA) (citing Phair v. New Page Corp., 708 F. Supp. 2d 57, 63 n.4 (D. Me. 2010)).
Neither party suggests that the circumstances of this case warrant a departure from the ordinary approach.
9

in this case lacks any such evidence, the Court applies the familiar burden-shifting framework to
evaluate circumstantial evidence of discrimination in the summary judgment context. Id. (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 – 805 (1973)).
The burden-shifting analysis begins with an assessment as to whether Plaintiff has
presented a prima facie case of discrimination. A prima facie case of age discrimination consists
of evidence that Plaintiff (1) was at least 40 years of age; (2) met the employer’s legitimate
performance expectations; (3) was terminated and (4) was replaced by a younger person or was
terminated under circumstances suggesting that age was not a neutral factor. Id. If the Plaintiff
satisfies the prima facie requirements, a rebuttable presumption of discrimination arises and the
burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for its termination
decision. Id. In the event that Defendant demonstrates through record evidence a legitimate,
nondiscriminatory basis for the employment decision, the burden returns to Plaintiff to show that
Defendant’s explanation is a pretext, and that age was a determinative factor. Id.
Defendant argues that Plaintiff has not established a prima facie case because Plaintiff has
not proved that he performed his job satisfactorily. The prima facie analysis, however, does not
require an assessment of the relative merits of the parties’ arguments. Instead, the analysis
contemplates a basic inquiry as to whether Plaintiff has satisfied the minimal elements of an age
discrimination claim. Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004) (describing the
prima facie standard as a “modest showing”); Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d
40, 44 (1st Cir. 2002) (describing the standard as a “low standard”).
In support of his claim, Plaintiff has presented evidence (1) that he was more than 40 years
old (i.e., 61), (2) that he satisfied Defendant’s performance requirements (e.g., nearly 30 years of
positive employment evaluations), (3) that Defendant terminated his employment, and (4) that he

10

was replaced by a younger person at or around a time when other employees of an advanced age
left Defendant’s employ, but not entirely voluntarily. Plaintiff thus has presented a prima facie
case of age discrimination.
Defendant, however, has articulated a legitimate, nondiscriminatory basis for the
termination of Plaintiff’s employment. In particular, Plaintiff’s alleged failure (a) to comply with
certain reasonable requests of the Town Manager (e.g., advise the Town Manager if the access
code to the Fire Department is changed), (b) to investigate thoroughly and objectively the bridge
incident, and (c) to develop a specific plan for improvement, if proven, would constitute a
legitimate, nondiscriminatory basis to end Plaintiff’s employment. Plaintiff, therefore, must
present evidence that would support a finding that Defendant’s stated reasons are a pretext for age
discrimination.
Plaintiff can show pretext by demonstrating “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the nondiscriminatory reasons offered by Defendant that are
sufficient to permit a factfinder to conclude that Defendant’s decision to terminate his employment
was not for the stated reason and that the real reason was discriminatory bias. Soto-Feliciano v.
Villa Cofresi Hotels, Inc., 779 F.3d 19, 29 (1st Cir. 2015) (quoting Gómez–González v. Rural
Opportunities, Inc., 626 F.3d 654, 662 – 63 (1st Cir. 2010)); see also Ray v. Ropes & Gray LLP,
799 F.3d 99, 113 (1st Cir. 2015). Plaintiff can also rely on comparator evidence suggesting his
termination involved disparate treatment, i.e., that others similarly situated to him in all relevant
respects were treated differently with respect to the relevant facts and circumstances advanced by
Defendant in support of its termination decision. Ray, 799 F.3d at 114. “Deviation from
established policy or practice” can also reinforce a pretext showing. Brennan v. GTE Gov’t Sys.
Corp., 150 F.3d 21, 29 (1st Cir. 1998); see also Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696

11

F.3d 128, 143 (1st Cir. 2012). When assessing pretext, the Court must consider “the total package
of proof” presented by Plaintiff. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003).
In essence, Defendant maintains that it had cause to terminate Plaintiff’s employment, but
nevertheless chose to terminate his employment without cause based on his years of service. While
a fact finder could conclude that Defendant terminated Plaintiff’s employment for lawful reasons,
a fact finder could also reasonably conclude that Defendant’s stated reasons are a pretext for age
discrimination. The record evidence reflects that after nearly 30 years of positive employment
evaluations, within less than six months of Ms. Wilson’s discussion with Plaintiff about his
retirement plans, during which discussion Plaintiff expressed a desire to work an additional five
years until he was 66, Ms. Wilson began a series of meetings to discuss performance issues that
resulted in the termination of Plaintiff’s employment and his replacement with a younger
individual.
The general concern about a potential age bias among other employees, which concern is
supported by the testimony of specific experiences of the employees, also supports Plaintiff’s
contention that Defendant’s stated reasons are a pretext for age discrimination. For instance, Paul
Wintle, a 25-year employee who supervised the management and operation of the wastewater
treatment plan, reported that at weekly staff meetings, employees “near or older than 60 were
treated much less favorably than the younger senior staff,” and that on one occasion, a member of
the senior staff left the meeting “in tears due to the way she had been treated by [Ms.] Wilson.”
(Id. ¶¶ 111, 112.)
In addition, although Ms. Wilson maintains that Plaintiff was insubordinate, she never
instituted formal disciplinary proceedings as prescribed by Defendant’s policy. Similarly, the

12

record lacks any evidence that the performance of the Fire Department personnel was deficient, or
that the operations of the Department were substandard under Plaintiff’s leadership.
Furthermore, while Ms. Wilson expressed great concern about Plaintiff’s ability to work
with the police chief, according to this record, other than in one meeting regarding the bridge
incident, Ms. Wilson did not address with the police chief the need to improve the relationship. A
fact finder could interpret her failure to address the issue at greater length with the police chief,
who was several years younger than Plaintiff, to suggest that the relationship issue was not as
significant as she maintains and was thus a pretext for age discrimination.
In short, Plaintiff has presented evidence that in the context of summary judgment is
sufficient to support the conclusion that Defendant’s stated reasons for the termination of
Plaintiff’s employment were a pretext for age discrimination. Whether Defendant terminated
Plaintiff’s employment for lawful reasons, or whether the termination constitutes unlawful age
discrimination is an issue for the fact finder’s consideration.
B.

Disability Discrimination
Plaintiff’s disability discrimination claim is subject to the same burden-shifting approach

that applied to his age discrimination claim. To establish a prima facie case for disability
discrimination, Plaintiff must demonstrate that he (1) was disabled within the meaning of the
Americans with Disabilities Act or the MHRA; (2) was qualified to perform the essential functions
of his job with or without a reasonable accommodation; and (3) was discharged in whole or in part
because of his disability. Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 (1st Cir. 2012).
Although Plaintiff has presented evidence to support his claim that he is disabled due to
his knee condition, and that he was qualified to perform the essential functions of the job with or
without a reasonable accommodation, the evidence to support his contention that he was

13

discharged in whole or part because of his disability is lacking. In fact, other than Ms. Wilson’s
brief observations about Plaintiff’s obvious difficulty walking, the record lacks any evidence that
Ms. Wilson considered Plaintiff’s knee condition to be an impediment to Plaintiff’s ability to
perform his job, or that Plaintiff’s knee condition influenced Ms. Wilson’s decision to terminate
Plaintiff’s employment.
While the standard for showing prima facie discrimination is “low,” Zapata-Matos, 277
F.3d at 44, the standard requires some evidence upon which a rational fact finder could conclude
that Plaintiff’s employment was terminated as the result of his disability. Ms. Wilson’s two
references to Plaintiff’s condition simply do not satisfy the causation element necessary to
establish a prima facie case. Indeed, given the lack of evidence of a causal link between Ms.
Wilson’s rather benign statements, to find on this record that Plaintiff has made a prima facie
showing of disability discrimination, the Court would in essence have to ignore the causation
element and conclude that it was sufficient for Plaintiff to prove that he was disabled and his
employment was terminated. In short, without any other evidence that reasonably could be
construed to suggest that Plaintiff’s knee condition influenced Ms. Wilson’s employment decision,
Plaintiff has failed to establish a prima facie case that he “was discharged … in whole or part
because of his disability.” Jones, 696 F.3d at 87.
Even if the evidence could be construed to establish a prima facie case for disability
discrimination, Ms. Wilson’s two comments would not be sufficient to prove that Defendant’s
stated reasons for the termination of Plaintiff’s employment constitute a pretext for disability
discrimination. In the pretext analysis, “the ultimate burden” is on the Plaintiff to persuade the
trier of fact that he was treated differently because of his disability. Zapata-Matos, 277 F.3d at 45
(quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir. 2002)). “This burden is often

14

broken into two separate tasks. The plaintiff must present sufficient evidence to show both that
‘[Defendant’s] articulated reason for [terminating his employment] is a pretext’ and that ‘the true
reason is discriminatory.’” Thomas v. Eastman Kodak Co., 183 F.3d at 56 (quoting Udo v. Tomes,
54 F.3d 9, 13 (1st Cir. 1995)). While, as explained in the context of Plaintiff’s age discrimination
claim, Plaintiff has presented evidence to support his contention that the decision to terminate his
employment might have been a pretext, he has presented no reliable evidence from which a fact
finder could conclude that Plaintiff’s disability influenced Ms. Wilson’s decision making process.
That is, Ms. Wilson’s two references to Plaintiff’s difficulty walking are insufficient to support a
finding by a rational fact finder that Plaintiff’s disability was a true reason for the termination of
Plaintiff’s employment. Id.
Perhaps recognizing that more is necessary to satisfy his burden to prove a prima facie case
or to prove the stated reasons for termination are a pretext for disability discrimination, Plaintiff
cites Ms. Wilson’s treatment of Paul Wintle upon his return from shoulder surgery. According to
Mr. Wintle, when he questioned Ms. Wilson’s micromanagement of him upon his return to work,
Ms. Wilson replied, “you haven’t been here. You’ve been out with your shoulder injury.” (Id. ¶
115.) Plaintiff contends that Ms. Wilson’s comment reflects a discriminatory animus. (Pl. Opp. at
13-14.)
Plaintiff’s argument fails. First, to the extent that Plaintiff contends that Ms. Wilson’s
treatment of Mr. Wintle reflects a discriminatory animus toward employees with a disability, the
record does not establish that Mr. Wintle in fact suffered from a disability. In addition, while Ms.
Wilson’s statement could be construed to reflect a concern that Mr. Wintle had missed time from
work, Plaintiff has presented no evidence that he has missed or expected to miss time from work
as the result of his knee condition. More importantly, Plaintiff has offered no evidence that Ms.

15

Wilson was concerned about the possibility that Plaintiff would be absent from work due to his
knee condition. Accordingly, Plaintiff’s reliance on Ms. Wilson’s treatment of Mr. Wintle in
connection with Mr. Wintle’s return to work as evidence of Ms. Wilson’s general discriminatory
animus toward employees with a disability is unavailing.
Plaintiff, therefore, must rely on Ms. Wilson’s two statements regarding Plaintiff’s
difficulty walking to support his pretext argument. Simply stated, just as the statements are
insufficient to support a prima facie case of disability discrimination, the statements do not support
Plaintiff’s claim that Defendant’s stated reasons for the termination of Plaintiff’s employment are
a pretext for disability discrimination.
C.

Retaliation
Plaintiff’s retaliation claim is also subject to the burden-shifting framework. Mesnick v.

Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991). The prima facie showing requires evidence (1)
that Plaintiff engaged in conduct protected under the ADEA or the MHRA,16 (2) that he was
thereafter subjected to an adverse employment action, and (3) that a causal connection existed
between the protected conduct and the adverse action. Mesnick v. Gen. Elec. Co., 950 F.2d 816,
827 (1st Cir. 1991). Liability for retaliation may be established even if the record would not
support a claim of discrimination. Id.
Plaintiff has presented evidence (1) that he engaged in a protected activity (i.e., filing of a
discrimination complaint), (2) that he was subsequently terminated from his employment, and (3)
that his employment was terminated the day after he filed his discrimination complaint. A close

16
The ADEA provides in pertinent part: “It shall be unlawful for an employer to discriminate against any of his
employees or applicants for employment ... because such individual ... has opposed any practice made unlawful by
this section, or because such individual ... has made a charge … under this chapter.” 29 U.S.C. § 623(d). The MHRA
has a similar prohibition. 5 M.R.S. § 4633(1).

16

temporal relationship between the protected activity and the alleged adverse conduct will satisfy
the causation element of the prima facie burden. Mariani–Colón v. Dep't of Homeland Sec., 511
F.3d 216, 224 (1st Cir.2007) (“We conclude that the ‘temporal proximity’ between appellant’s
allegations of discrimination in June 2002 and his termination in August 2002 is sufficient to meet
the relatively light burden of establishing a prima facie case of retaliation.”). That is, “[w]here the
evidence shows only that the decision-maker knew of the complainant’s protected conduct at the
time the adverse employment action was taken, causation may be inferred from a very close
temporal relationship between the protected activity and the adverse action.” Velazquez-Ortiz v.
Vilsack, 657 F.3d 64, 72 (1st Cir. 2011) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273 – 74; Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004)). Plaintiff has
thus established a prima facie case for retaliation.
As explained above, Defendant has presented record evidence to support the conclusion
that Defendant terminated Plaintiff’s employment for legitimate, nondiscriminatory reasons, and
Plaintiff has presented evidence to support a determination that Defendant terminated his
employment for other than the stated reasons. The issue is whether the evidence could support a
finding that the other reason was at least in part the fact that Plaintiff filed a discrimination
complaint.
Based on Plaintiff’s report of the June 12 meeting between Plaintiff and Ms. Wilson, when
the meeting concluded, Plaintiff’s continued employment with Defendant was dependent upon the
discussion at the June 14 meeting. Nevertheless, Ms. Wilson appeared at the meeting with a
separation agreement for Plaintiff, and did not afford Plaintiff the option to continue in his
employment. The only intervening event was the filing of Plaintiff’s discrimination complaint.
Given the very close proximity between the filing of the complaint and the termination of

17

Plaintiff’s employment, given that Ms. Wilson was aware of the filing at some point before she
met with Plaintiff to discuss his employment, and given that, contrary to Plaintiff’s understanding
at the conclusion of the June 12 meeting, Plaintiff’s continued employment was not a possible
option when he met with Ms. Wilson on June 14, for summary judgment purposes, Plaintiff has
presented sufficient evidence to support his contention that the stated reasons are pretext for
Defendant’s unlawful retaliation. Whether Defendant terminated Plaintiff’s employment for
lawful reasons or as the result of Plaintiff’s filing of an administrative discrimination complaint is
thus an issue for the fact finder.17
CONCLUSION
Based on the foregoing analysis, the Court grants Defendant’s motion for summary
judgment on Count II of Plaintiff’s complaint (disability discrimination), and denies Defendant’s
motion for summary judgment on Counts I (age discrimination) and III (retaliation).18
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 25th day of November, 2015.

17

Defendant maintains that the evidence establishes that Plaintiff manipulated the process by filing his charge of
discrimination immediately before a meeting at which he knew he might be terminated. (Motion at 17 n.5.) Defendant
also argues that because Ms. Wilson prepared the separation agreement before the June 14 meeting, and before she
received any notice of Plaintiff’s charge of discrimination, the record cannot support Plaintiff’s claim. (Id. at 17.)
The facts upon which Defendant relies to support its arguments are disputed and, therefore, are properly left for the
fact finder to evaluate.
18

Through its motion, Defendant also sought to limit the damages that Plaintiff could recover for lost wages. The
scope of damages that Plaintiff could potentially recover is an issue that will be decided at trial.
18