SWANSON v. CORRECT CARE SOLUTIONS LLC

Filing 41

REPORT AND RECOMMENDED DECISION re 31 MOTION for Summary Judgment filed by CORRECT CARE SOLUTIONS LLC. Objections to R&R due by 8/15/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JACQUI SWANSON,

)
)
Plaintiff
)
)
v.
)
)
CORRECT CARE SOLUTIONS, INC., )
)
Defendant
)

1:15-cv-383-GZS

RECOMMENDED DECISION ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff Jacqui Swanson asserts federal and state claims of disability
discrimination in employment against Defendant Correct Care Solutions, Inc. The matter
is before the Court on Defendant’s Motion for Summary Judgment. (ECF No. 31.)
Following a review of the summary judgment record and after consideration of the parties’
arguments, I recommend the Court grant Defendant’s motion.
I.

BACKGROUND FACTS
A.

Defendant’s Statement of Material Facts

Defendant Correct Care Solution (CCS) provides healthcare services to correctional
institutions throughout the country. (Defendant’s Statement of Material Facts (DSMF) ¶
1, ECF No. 32.) During the relevant time period, CCS contracted with the Maine
Department of Corrections (MDOC) to provide healthcare services to inmates at the
Mountain View Correctional Facility in Charleston, Maine. (Id. ¶ 2.)

Kim Partridge was employed by CCS as the Health Services Administrator at the
Correctional Facility. (Id. ¶ 3.) Jeffrey Morin was employed by the MDOC as the
Superintendent of the Mountain View facility. Mr. Morin was responsible for, among other
things, the safety and security of the inmates at Mountain View as well as the staff who
worked at Mountain View. (Id. ¶ 4.)
On September 1, 2014, Plaintiff applied for a position with CCS as a Registered
Nurse at Mountain View. As part of that process, Plaintiff completed an employment
application and attached her resume.1 (Id. ¶ 12.) The application form, which Plaintiff
read, stated that the facility “would conduct a background investigation for purposes of
issuing security clearance,” and that in the event of an unsatisfactory finding, Plaintiff
would be “denied a security clearance and any offer of employment [would] be withdrawn
immediately, or [her] employment with CCS [would] be terminated.” (Id. ¶ 13.) Plaintiff
further “authorize[d] investigation of all statements contained in [the] application and
agree[d] that if any material or willful misrepresentation or omission has been made
[therein] or the results of an investigation are not satisfactory for any reason, any offer of
employment made … by CCS may be withdrawn immediately, or … employment with
CCS will be terminated immediately….” (Id. ¶ 14.)
On her application, Plaintiff stated that her nursing license had been placed on
probation for substance abuse and was reinstated early due to successful treatment. (Id. ¶
16.) Plaintiff has a history of addiction to narcotic medications and alcohol. (Pl.’s
1

Plaintiff asserts that the application form contained only four spaces in which to describe prior
employment. Plaintiff listed only her four most recent employers, and her resume included employment in
the prior five years. (POSMF ¶¶ 18, 22.)
2

Statement of Additional Material Facts (PSAMF) ¶ 53, ECF No. 36.) From 2008 to
present, Plaintiff has not used any narcotic medications except Suboxone as prescribed.
(Id. ¶ 54.)
On September 9, 2014, Ms. Partridge interviewed Plaintiff for the Registered Nurse
overnight shift position at Mountain View. (DSMF ¶ 24.) In that position, Plaintiff would
be the only nurse on duty and would have keys to the medical cabinet, which contained
controlled substances.2 (Id. ¶ 25.)
As part of CCS’s hiring process, Ms. Partridge attempted to obtain a copy of
Plaintiff’s nursing license. (DSMF ¶ 27.) Due to a problem with the Maine Board of
Nursing website, Ms. Partridge was unable to view the complete history of Plaintiff’s
nursing license and the prior restrictions. (Id. ¶ 28.) Before Ms. Partridge extended an
offer of employment to Plaintiff, Ms. Partridge had obtained a page from the Board of
Nursing web site that showed two disciplinary actions, a Consent Agreement dated May
12, 2009, and a Board Order dated March 7, 2013. (PSAMF ¶ 73; Partridge Ex. 7, ECF
No. 30-8.) Ms. Partridge could have obtained more information by contacting the Board,
but did not do so. (DOSMF ¶ 28.) She was able to verify that Plaintiff had a valid nursing
license at the time of the hiring process. (DSMF ¶ 29.) The MDOC did a criminal
background check and reported to Ms. Partridge that the check did not preclude Plaintiff’s
employment at the Correctional Facility. (PSAMF ¶ 75.)

2

Plaintiff states that narcotics are not standard medications at the Correctional Facility, and would only be
administered if an inmate had surgery and was prescribed narcotics for pain control. (DOSMF ¶ 25.)
3

On September 23, 2014, Ms. Partridge offered Plaintiff a position as a Registered
Nurse at Mountain View. (Id. ¶ 30.) The offer letter, which Plaintiff accepted and
understood, specifically stated that she “must obtain and keep a valid security clearance
throughout [her] employment with CCS in order to be eligible for continued employment
with CCS.” (Id. ¶ 31.) Plaintiff’s job description also stated that the position required
Plaintiff to maintain a security clearance. (Id. ¶ 32.) The Security Policy in the Team
Member Manual further stated that Plaintiff’s employment was “contingent upon initial
and continued security clearance as defined by institutional policies” and that “[a]ny CCS
team member who loses security clearance will no longer be employable by CCS and will
be terminated.” (Id. ¶ 33.) Plaintiff did not have any performance issues during her
employment with CCS. (Id. ¶ 34.)
Relatively soon after Plaintiff was hired, based on certain information received by
Ms. Partridge and Mr. Morin, Mr. Morin asked a member of law enforcement to obtain
some public records regarding Plaintiff. Through this effort, Mr. Morin learned that
Plaintiff’s nursing license had been suspended due to drug diversion when Plaintiff was
employed by a previous employer. (Id. ¶ 38.)
On October 14, 2014, Mr. Morin spoke with Ms. Partridge about the drug diversion
information he obtained. Ms. Partridge informed Mr. Morin that Plaintiff had not disclosed
her history of drug diversion when she applied for the position with CCS or during the
interview process. (Id. ¶ 39; DOSMF ¶ 39.) At her deposition, Plaintiff recounted her
conversation with Ms. Partridge about Plaintiff’s history regarding the diversion of drugs
as follows:
4

Q. Okay. And so when – when Kim Partridge interviewed you, you didn’t
say – you didn’t say anything to her about drug diversion either?
A. No.
Q. Okay. All right. On –
A. Well, actually, I think I did because she – we talked about why my license
was suspended.
Q. Okay. What –
A. I did talk to her about diversion. We didn’t talk about any specific place.
She didn’t ask and I didn’t say.
Q. What specifically did you say to her?
A. I do believe it was vague in the sense that I just said, you know, I had
struggled and lost some jobs, the Board of Nursing found out about it.
Q. Okay.
A. So it was very – but she was aware that it was reported to the Board of
Nursing that I was misappropriating medications.
Q. Did you – did you tell her that you had been accused of diverting drugs
from a patient?
A. I can’t say I used those words direct – that exactly, no.
Q. Okay. As you sit here today, can you say under oath that you used the
word diverted drugs? The words diverted drugs?
A. No. I did not – I don’t recall using the word diversion. I might have, I
don’t re – I can’t say specifically, no.
Q. Okay. You just told her that your license had been suspended or revoked
or?
A. Put on a probationary period because it was never suspended.
Q. Okay.

5

A. It was never revoked. For using drugs specifically is what I said.
Q. Okay. But not – you didn’t say for stealing drugs?
A. No, I didn’t.
(Plaintiff Dep. 89 – 91.)
Q. Okay. So when you applied for your employment with Correct Care Solutions
you didn’t tell Kim Partridge about the board’s investigation with regard to the
Mercy incident?
A. No.
Q. Okay.
A. Under the impression I didn’t need to.
Q. And you didn’t tell her that the Board of Nursing had issued a letter of concern?
A. Nope.
Q. And you didn’t tell her that you had diverted drugs from Mercy?
A. Nope.
(Id. at 129 – 30.)
Mr. Morin provided Ms. Partridge with a copy of the Consent Agreement between
Plaintiff and the nursing board. (DSMF ¶ 40.) In the Consent Agreement, Plaintiff
admitted that she had diverted Dilaudid, a controlled medication, from Brentwood.3 (Id. ¶

3

Plaintiff asserts that she was informed by an officer of the Board of Nursing that, when responding to an
employer about her history, she should answer the employer’s questions, but she did not need to disclose
any of her information unless she was asked specifically, in which case she should answer honestly. (Id.
¶¶ 59 – 60.) On March 8, 2013, the Board of Nursing notified Plaintiff that her probationary period was
terminated early due to her compliance with the Consent Decree. (Id. ¶ 61.)
6

41.) Mr. Morin expressed his concern about what he perceived to be Plaintiff’s failure to
disclose her history of drug diversion (theft of prescription medication from a prior
employer) and her dishonesty during the interview process. (Id. ¶ 42.) In a memorandum,
he wrote, “I am not comfortable with her at Mountain View but if the decision is made to
keep her on board I would like to discuss protocols to keep a tight check on things.”
(PSAMF ¶ 77; Morin Aff. Ex. 1, ECF No. 32-1.) He also wrote: “I am more concerned
that most of these issues had to come out from others; not as a result of her being
forthcoming with us.” (DRS ¶ 77; Morin Aff. Ex. 1.)
On the same day (October 14, 2014), Ms. Partridge asked Plaintiff to leave
Mountain View until an investigation could be completed and after the MDOC assessed
the situation. (DSMF ¶ 43.) Before Plaintiff was asked to leave the facility, she met with
Ms. Partridge and the medical director, during which meeting Ms. Partridge asked Plaintiff
if she was taking Suboxone, and Plaintiff responded that she was. (PSAMF ¶ 78.)
On October 15, 2014, the MDOC revoked Plaintiff’s security clearance and issued
a permanent gate stop. (Id. ¶ 44.) According to Mr. Morin, the MDOC based its decision
on Plaintiff’s history of drug diversion and her lack of candor during the application
process. (Id.; Morin Aff. ¶¶ 8 – 11, ECF No. 32-1.) Mr. Morin also asserts that personally
he was “concerned about having [Plaintiff] working at Mountain View because of her
history of drug diversion … and because she was not honest during the interview process.”
(Morin Aff. ¶ 8; see also Revised Morin Aff. ¶¶ 8 – 11, ECF No. 40-1 (stating that Mr.
Morin, rather than “the Department,” withdrew Plaintiff’s clearance and issued the

7

permanent gate stop).) Because of the permanent “gate stop,” Plaintiff was prohibited from
entering Mountain View and was unable to work. 4 (DSMF ¶ 44.)
After the MDOC revoked Plaintiff’s security clearance and issued a permanent gate
stop, Ms. Partridge believed she was obligated to terminate Plaintiff’s employment
effective immediately. (DSMF ¶ 46.) On October 15, 2015, Ms. Partridge notified Plaintiff
that CCS was terminating her employment because her security clearance had been
revoked. (Id.) In a telephone conversation on October 15, 2014, Ms. Partridge told
Plaintiff that she could not return to the facility because “one of the guards found out
something … and went to the superintendent,” and that “they found out about [her]
addiction history.” (PSAMF ¶ 79; DRS ¶ 79; Swanson Dep. at 119:9–10, 119:23.)
According to Plaintiff, Ms. Partridge told her that the “superintendent found out about [her]
drug addiction history and does not feel comfortable having [her] work there due to that.”
(PSAMF ¶ 80; Swanson Dep. at 141:8–10.) The documentation that confirmed the
termination of Plaintiff’s employment states that Plaintiff was discharged because her
“[s]ecurity clearance was lost.”

(DSMF ¶ 47.)

CCS has a policy and practice of

terminating employees who falsify information and/or lose their security clearance. (Id. ¶
52.)
Under CCS’s contract with the State of Maine in July 2016, CCS continued to
provide the services of registered nurse at night at the Mountain View facility. (PSAMF ¶

Mr. Morin also asserts that Plaintiff’s status as a former abuser in recovery was not the reason for the gate
stop, and that the MDOC has other employees in recovery for substance abuse. (Id. ¶ 45; Morin Aff. ¶ 12.)
4

8

84.) The individual hired by CCS to fill the position vacated by Plaintiff had no known
substance abuse issues. (Id. ¶ 85.)
DISCUSSION
CCS argues the record cannot support a finding that its decision to terminate
Plaintiff’s employment was based on Plaintiff’s condition as a recovering narcotics addict.
Instead, CCS contends the record establishes that the termination of Plaintiff’s employment
was required by Plaintiff’s failure to maintain a security clearance and the MDOC’s related
gate stop order.
A.

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.’” 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)).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’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 her claims, a trial-worthy controversy exists and summary
judgment must be denied to the extent there are supported claims. Unsupported claims are
9

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.”).
B.

Disability Discrimination Standard
The Americans with Disabilities Act and the Maine Human Rights Act both prohibit

discrimination in employment “because of” an employee’s disability, where the employee
or prospective employee is qualified to perform the essential functions of the job, with or
without a reasonable accommodation. 42 U.S.C. §§ 12102, 12112; 5 M.R.S. §§ 4553(8D), 4572.5
Proof of disability discrimination can be direct or circumstantial. Patten v. WalMart Stores E., Inc., 300 F.3d 21, 24 – 25 (1st Cir. 2002); Morissette v. Cote Corp., 190 F.
Supp. 3d 193, 201 – 202 (D. Me. 2016). Direct proof of discrimination requires “evidence
that unambiguously implicates a disability discrimination motive.” Patten, 300 F.3d at 25.
Such evidence “consists of statements by a decisionmaker that directly reflect the alleged
animus and bear squarely on the contested employment decision.” Id. (quoting Febres v.

5

The First Circuit has characterized the causation element of a disability discrimination case as requiring
proof that disability was the “but for” cause of an adverse employment action. Palmquist v. Shinseki, 689
F.3d 66, 77 (1st Cir. 2012). The Maine Supreme Judicial Court (SJC) has held that “[f]ederal law guides
[its] construction of the Maine Human Rights Act.” Cookson v. Brewer Sch. Dep’t, 2009 ME 57, ¶ 14, 974
A.2d 276, 281. However, the SJC has also held the Maine Human Rights Act’s “because of” language
requires evidence that a prohibited factor “was a substantial, even though perhaps not the only, factor.”
Fuhrmann v. Staples Office Superstore E., Inc., 2012 ME 135, ¶ 21, 58 A.3d 1083, 1093 (whistleblower
protection claim, made actionable through the MHRA). The discussion in this Recommended Decision of
whether Plaintiff has raised a genuine issue as to causation would be the same under either standard.

10

Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000)). Ambiguous statements do
not constitute direct evidence. Id.
In the absence of direct evidence of discrimination, a plaintiff must prove
discrimination circumstantially, by satisfying the requirements of a burden-shifting
analysis. Id. at 24 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 – 805
(1973)).

This analysis “is premised on the reality that ‘[o]utright admissions of

impermissible [discriminatory] motivation are infrequent.’” Ahmed v. Johnson, 752 F.3d
490, 503 (1st Cir. 2014) (quoting Hunt v. Cromartie, 526 U.S. 541, 553 (1999)).
The first step in the burden-shifting analysis is for the plaintiff to produce sufficient
evidence to make a prima facie showing, i.e., evidence (1) that the plaintiff qualifies as
disabled under the applicable law, (2) that she is qualified to perform the essential functions
of the job with or without reasonable accommodation, and (3) that she was subjected to an
adverse employment action in whole or in part because of her disability. Lang v. Wal-Mart
Stores E., L.P., 813 F.3d 447, 458 (1st Cir. 2016); Doyle v. Dep’t of Human Servs., 2003
ME 61, ¶ 14, 824 A.2d 48, 54. The prima facie standard imposes a “relatively light
burden.” Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir. 1994). For example,
evidence that the plaintiff performed adequately and was replaced by a person without a
disability can satisfy the prima facie standard. Id. at 15 n.4; Morissette, 190 F. Supp. 3d at
203.
If the plaintiff makes a prima facie showing, the burden shifts to the defendant to
produce admissible evidence that its employment decision was based on a legitimate,
nondiscriminatory reason. Hodgens, 144 F.3d at 160 – 161. “The employer’s burden of
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articulating a non-discriminatory reason is only a burden of production, not a burden of
persuasion; the burden of proving unlawful discrimination rests with the plaintiff at all
times.” Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir. 2007).
If the defendant meets its burden of production, the burden returns to the plaintiff
to show that the defendant’s stated reason is pretextual, i.e., designed to cloak
discriminatory animus. Id. A plaintiff may show that a stated reason is pretext for
discrimination by showing “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence and
[with or without additional evidence and inferences properly drawn therefrom] infer that
the employer did not act for the asserted non-discriminatory reasons.” Hodgens, 144 F.3d
at 168 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
In summary, a court must deny the defendant’s motion for summary judgment if the
plaintiff proffers “sufficient admissible evidence, if believed, to prove by a preponderance
of the evidence each essential element in a prima facie case and that the employer’s
justification for the challenged employment action was merely a pretext for impermissible
[disability] discrimination.” Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 – 92
(1st Cir. 1995). In making the necessary showings, the plaintiff “may rely upon the same
evidence to establish both pretext and discrimination, provided it is adequate to enable a

12

rational factfinder reasonably to infer that intentional [disability]-based discrimination was
a determinative factor in the adverse employment action.” Id. at 1092.6
C.

Analysis
The parties do not dispute that Plaintiff qualifies as disabled based on the fact she is

recovering from narcotics addiction. See Jones v. City of Boston, 752 F.3d 38, 58 (1st Cir.
2014) (“Individuals who are recovering from an addiction to drugs may be disabled in the
meaning of the ADA, as the statute aims to protect them from the stigma associated with
their addiction.”). In addition, the termination of Plaintiff’s employment would plainly
constitute an adverse employment action. The focus of the summary judgment motion is
thus whether the record can support a finding that CCS’s decision to terminate Plaintiff
was because of Plaintiff’s disability.
The parties discuss at some length whether Plaintiff’s discrimination claim requires her to prove there was
another CCS employee without a disability who was treated differently than Plaintiff (i.e., who was not
fired under similar circumstances). CCS argues that summary judgment should enter because Plaintiff has
not identified any such person. (Motion at 10 – 11; Reply at 8 n.4, ECF No. 39.) Plaintiff contends that
“comparator evidence” is not required to prove a claim of discriminatory discharge. (Pl.’s Opposition Mem
at 15 – 16 & n.4.) Plaintiff’s argument is persuasive. Even when a disparate treatment argument is made,
a plaintiff is not necessarily required to demonstrate disparate treatment as part of the prima facie case.
Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003). For example, courts occasionally divide the
third prima facie element into the following two elements: (a) removal from a position where (b) the
position remains open and is filled by someone with similar qualifications. Rodriguez–Cuervos, 181 F.3d
at 19. The alternative language does not require “comparator” evidence. Moreover, the requirement of
comparator evidence at the pretext stage is generally limited to cases in which the plaintiff attempts to prove
discriminatory bias “based on comparative evidence.” Rodriguez – Cuervos v. Wal-Mart Stores, Inc., 181
F.3d 15, 21 (1st Cir. 1999); see also Kosereis, 331 F.3d at 213 (“in disparate treatment cases, comparative
evidence is to be treated as part of the pretext analysis” (emphasis added)). Here, the parties have stipulated
that Plaintiff was replaced by an individual with no known substance abuse issues. (Stipulation, ECF No.
33.) The stipulation, therefore, satisfies Plaintiff’s prima facie causation showing. Consequently, summary
judgment is not warranted based on the alleged failure to provide a comparator. In addition, comparator
evidence is not a required component of every pretext showing. Kosereis, 331 F.3d at 214 (“Plaintiffs can
show that an employer’s stated reasons are pretextual in any number of ways. One method is to produce
evidence that the plaintiff was treated differently than other similarly situated employees.” (citation
omitted)). Thus, while the record in this case does not contain the kind of comparator evidence that would
reinforce a pretext finding, Plaintiff is not foreclosed from demonstrating pretext in another way.
6

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1.

Direct evidence

Plaintiff argues that the record contains direct evidence of discriminatory animus.
Direct evidence of discrimination is evidence that “unambiguously implicates a disability
discrimination motive.” Patten, 300 F.3d at 25. In support of her argument, Plaintiff cites
(a) Ms. Partridge’s inquiry as to whether Plaintiff was taking Suboxone, which inquiry she
made when she first informed Plaintiff she must leave the facility, and (b) Ms. Partridge’s
subsequent explanation to Plaintiff that her employment was terminated because the
“superintendent found out about [her] drug addiction history and does not feel comfortable
having [her] work there due to that.” (Pl.’s Opposition Mem. at 5 – 6; PSAMF ¶ 80;
Swanson Dep. at 141:8–10.)
Contrary to Plaintiff’s argument, a statement about Plaintiff’s history is not an
unambiguous declaration that Plaintiff was fired because she was disabled.7 Given the
record evidence in this case regarding Plaintiff’s diversion of drugs, the reference to
Plaintiff’s drug addiction history cannot be viewed as unambiguously implicating a
discriminatory motive.
2.

Circumstantial evidence

In the absence of direct evidence, the Court must assess the record based on the
burden-shifting analysis applicable to circumstantial evidence of discriminatory purpose.
CCS contends that Plaintiff has not and cannot establish a prima facie case of disability
discrimination because when the MDOC revoked her security clearance, Plaintiff was not

7

Ms. Partridge hired Plaintiff despite knowledge of the asserted disability status. While this does not rule
out a finding of discrimination, it is material to the analysis.
14

qualified to perform the essential functions of the job. (Motion at 8 – 10.) The CCS
Security Policy clearly states that anyone employed by CCS must obtain a security
clearance from the MDOC.
The record, however, also includes evidence that before CCS terminated Plaintiff’s
employment, CCS and MDOC discussed Plaintiff’s drug addiction history and that soon
after that discussion, CCS terminated Plaintiff’s employment. Furthermore, Plaintiff has
provided evidence that during the meeting at which Ms. Partridge informed Plaintiff that
Plaintiff must leave the facility, Ms. Partridge asked if Plaintiff was using Suboxone. The
temporal relationship between the conversation between CCS and MDOC and the
termination of Plaintiff’s employment, and the discussion about Plaintiff’s drug use at the
time she was asked to leave the facility are sufficient to satisfy Plaintiff’s burden to
establish a prima facie case of disability discrimination.
CCS asserts it terminated Plaintiff’s employment for a legitimate, nondiscriminatory reason – the MDOC would not permit Plaintiff access to the Mountain View
facility. Plaintiff maintains that CCS’s argument fails because an employer cannot avoid
liability for employment discrimination by deferring to third-party employment
qualification determinations. (Pl.’s Opposition Mem. at 10 – 12.) In support of her
argument, Plaintiff cites two cases in which courts determined that an employer could not
avoid liability simply because a consulting physician determined the employee could not
perform the requirements of the job. Holiday v. City of Chattanooga, 206 F.3d 637 (6th
Cir. 2000) (physical examination by contract physician, who recommended applicant
lacked fitness to serve as a police officer based exclusively on HIV, although applicant had
15

passed physical agility test administered directly by the employer); E.E.O.C. v. Texas Bus
Lines, 923 F. Supp. 965, 970 (S.D. Tex. 1996) (employer cannot rely on “an erroneous and
clearly unsupported opinion” that the disability of obesity prevented the employee from
performing the essential functions of bus driver job). In a third case cited by Plaintiff, the
plaintiff claimed disability discrimination after his employment as a court security officer
was terminated when he was determined to be medically disqualified because of his
diabetic condition. The employer’s hiring decision was informed by a contract between
the United States Marshal Service and a medical doctor to assess whether the security
officers were physically and medically qualified to perform the responsibilities of the job.
In a counterclaim, the security company alleged that the plaintiff’s claim violated the terms
of the collective bargaining agreement because the agreement provided that the employee
would hold the employer harmless for removal decisions made by the United States
Marshal. The court held that the employer could not avoid its obligations under the ADA
by entering into a collective bargaining agreement with the union and the court thus
dismissed the counterclaim. Wise v. AKAL Sec., Inc., No. 5:04-cv-01142, 2005 WL
3487741, 2005 U.S. Dist. LEXIS 35241 (W.D. Tex. Dec. 21, 2005) (granting employee’s
motion to dismiss counterclaim for breach of the CBA’s hold harmless provision).
In the Holiday and Texas Bus Lines cases cited by Plaintiff, the courts logically
determined that an employer cannot rely on a third person to satisfy the employer’s
obligation to determine on a non-discriminatory basis whether a person can perform the
essential functions of the job. In other words, an employer cannot avoid potential liability

16

by relying on a third-party’s assessment as to whether an employee can perform the
essential functions of the job.
This case, however, is distinguishable from the circumstances underlying the
authority upon which Plaintiff relies. Here, CCS did not contract with a third-party to
assess whether an employee or potential employee was physically or mentally capable of
performing the essential functions of the job.

Instead, Plaintiff’s employment was

specifically contingent on Plaintiff maintaining MDOC clearance to enter the Mountain
View facility. When MDOC revoked Plaintiff’s clearance, Plaintiff’s employment was
terminated. 8 According to CCS, therefore, regardless of the merit of MDOC’s decision,9
Plaintiff became ineligible to work for CCS at Mountain View. CCS has thus proffered
legitimate, non-discriminatory reasons for the termination of Plaintiff’s employment,
satisfying its burden of production.
Plaintiff contends CCS’s stated reasons are a pretext for unlawful discrimination.
Plaintiff’s arguments focus on the record evidence regarding her disclosures during the

CCS established the basis for the termination of Plaintiff’s employment through the affidavits of Ms.
Partridge and Mr. Morin as follows:
8

1.

Mr. Morin, acting on behalf of the MDOC, concluded that Plaintiff’s drug
diversion history and failure to disclose the same warranted withdrawal of
Plaintiff’s security clearance. (DSMF ¶ 44, citing Morin Aff. ¶¶ 8 – 11; see also
Revised Morin Aff. ¶¶ 8 – 11.)

2.

After the MDOC revoked Plaintiff’s security clearance and issued a permanent
gate stop, Ms. Partridge was obligated to terminate Plaintiff’s employment
effective immediately and did so on that ground. (DSMF ¶ 46, citing Partridge
Dep. at 103, ECF No. 30-1; Partridge Dep. Ex. 10, ECF No. 30-11.)

CCS maintains MDOC’s decision was based on Plaintiff’s lack of candor in the application process rather
than based on Plaintiff’s addiction. The record could support such a finding.
9

17

application and interview process and her subsequent conversations with Ms. Partridge.
For instance, Plaintiff cites her testimony regarding the disclosures she made during the
interview10 and Ms. Partridge’s inquiry about her current drug use just before the
termination of Plaintiff’s employment as evidence that her employment was terminated
because of her drug use and not because she withheld relevant information during the hiring
process. While Plaintiff arguably has generated a disputed material fact as to whether
MDOC’s concern was Plaintiff’s drug addiction or her alleged lack of candor, the fact
remains that CCS terminated her employment because MDOC would not allow her access
to the facility. Plaintiff has offered no facts or authority to suggest that CCS could have
continued to employ Plaintiff at the Mountain View facility after MDOC revoked her
security clearance.
The issue, therefore, is whether CCS actually made or participated in the decision
to revoke Plaintiff’s security clearance and did so for unlawful, discriminatory reasons.
Plaintiff contends the record includes sufficient evidence to generate a factual issue
regarding CCS’s involvement and thus generates a question as to whether CCS’s stated
reason for the termination was pretextual.
Plaintiff specifically points to an email Mr. Morin sent to three individuals,
including Ms. Partridge,11 the day before Plaintiff’s security clearance was revoked. The

Plaintiff argues in part that she supplied enough “essential information about her past to CCS” to put
CCS on notice it “should conduct due diligence regarding [her] background,” and that Ms. Partridge could
have obtained, but chose not to obtain, further information. (Pl.’s Opposition Mem. at 8.)
10

11

The email was sent to Brian Castonguay, Kimberly Partridge, and Kim Robbins. Mr. Morin identified
Ms. Robbins as the Health Services Coordinator for the MDOC. (Revised Morin Aff. ¶ 10, ECF No. 4018

email includes the following passage after listing a number of matters of concern to Mr.
Morin (none of them being Plaintiff’s disability status):
There are a very high number of red flags in this case. I am all for second
chances but these conversations sound like the conversations we have with
our offenders; minimizing, evasion, and excuses. This is obviously a person
with a documented history of bad choices and she is being assigned to the
night shift with no one else around. I am more concerned that most of these
issues had to come out from others; not as a result of her being forthcoming
with us.
I am not comfortable with her at Mountain View but if the decision is made
to keep her on board I would like to discuss protocols to keep a tight check
on things.
Let me know what your thoughts are.
(Partridge Dep. Ex. 13, ECF No. 30-14.) Plaintiff argues that the email communication
generates a factual issue as to whether Mr. Morin actually made the gate stop decision and
whether, ultimately, Plaintiff’s disability status was the reason for the decision. (Pl.’s
Opposition Mem. at 13.)
Although CCS cannot be legally responsible based on agency principles for
MDOC’s decision to revoke Plaintiff’s security clearance, logic suggests Plaintiff could
conceivably prevail on her claim against CCS if the evidence established that CCS in some
way orchestrated the revocation for discriminatory reasons. Cf. Ameen v. Amphenol
Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir. 2015) (discussing “cat’s paw” theory of
liability in context of deciding when an employer can be liable based on the discriminatory
bias of a lower-level employee who was not a final decision maker for the employer). In

1.) Ms. Partridge identified Mr. Castonguay as one of her supervisors at the CCS regional office in Augusta.
(Partridge Dep. at 10.)
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other words, CCS cannot avoid liability if, based on Plaintiff’s disability, it arranged for
MDOC to deny Plaintiff access to the Mountain View facility.
Here, a fact finder could not reasonably infer from Mr. Morin’s email or any other
record evidence that CCS colluded with or otherwise caused MDOC to revoke Plaintiff’s
security clearance based on Plaintiff’s disability. While a fact finder could reasonably
conclude that Mr. Morin consulted with CCS before the revocation decision, the record
lacks any evidence from which a fact finder could conclude that CCS, rather than Mr.
Morin and others at the MDOC, made the decision to revoke Plaintiff’s security
clearance,12 and the record does not contain evidence to establish that CCS’s agent, Ms.
Partridge, misled the MDOC, about the information Plaintiff provided during the
application and interview process in order to facilitate the termination of Plaintiff’s
employment for unlawful reasons. 13
In short, a fact finder could not reasonably conclude that CCS colluded with MDOC
or otherwise directed MDOC’s decision to revoke Plaintiff’s access to the Mountain View
facility based on Plaintiff’s disability. The record, therefore, could not support a finding
that the stated reason for the termination of Plaintiff’s employment was pretextual.
Accordingly, CCS is entitled to summary judgment.

Mr. Morin stated he withdrew Plaintiff’s security clearance, after consulting with Kim Robbins, the
Department of Corrections Health Services Coordinator, who approved his recommendation that the
MDOC withdraw Plaintiff’s clearance. (Revised Morin Aff. ¶¶ 10 – 11.)
12

While Plaintiff argues that Ms. Partridge could have performed greater “due diligence” about Plaintiff’s
background (Pl.’s Opposition Mem. at 8), the failure to engage in a more thorough investigation before
hiring Plaintiff was not a discriminatory act and there is no evidence that Ms. Partridge attempted to
manipulate the evidence presented to the MDOC based on discriminatory bias.
13

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CONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendant’s Motion
for Summary Judgment. (ECF No. 31.)
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 1st day of August, 2017.

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