Parker v. Accellent, Inc., et al
Filing
37
///ORDER granting 22 Motion for Summary Judgment; denying as moot 36 Motion to Extend Time. Clerk shall enter judgment and close the case. So Ordered by Chief Judge Joseph N. Laplante.(gla)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Deborah Parker
v.
Civil No. 13-cv-053-JL
Opinion No. 2014 DNH 237
Accellent, Inc.
and Portlyn LLC
MEMORANDUM ORDER
This case might be called “Who moved my table?” in homage to
the popular self-help book Who Moved My Cheese?, a parable about
characters who struggle to survive in the maze where they live
after suddenly discovering that the cheese on which they have
come to rely is missing from its usual place.1
The events giving
rise to this case began when the plaintiff’s employers,
manufacturing companies known as Accellent, Inc. and Portlyn,
LLC,2 removed an adjustable table from her work station and
replaced it with a stationary one.
The plaintiff, Deborah Parker, claims that she needed the
adjustable table as an accommodation for her fibromyalgia and,
after she discovered the table had been replaced, complained to
her supervisor and her foreman--cursing in response to her
1
2
Spencer Johnson, Who Moved My Cheese? 25-34 (2002).
Since it makes no difference to the analysis here, the
court will collectively refer to the defendants as “Accellent.”
foreman’s directive that she get back to work.
One week later,
Accellent proposed transferring Parker to a different
manufacturing line where all of the tables were adjustable, but
Parker returned to work at the stationary table for two more days
and then, after taking a brief period of approved leave, quit.
Parker has since brought claims against Accellent for:
(A) discriminating against her due to her disability in
violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112(a), and its state-law
analog, N.H. Rev. Stat. Ann. §§ 354-A:7, I, VII(a), by
(1) subjecting her to a hostile work environment
due to her fibromyalgia,
(2) failing to accommodate that alleged
disability, and
(3) constructively discharging her;
(B) retaliating against her because she requested a
reasonable accommodation, in further violation of the
ADA, 42 U.S.C. § 12203(a), and state law, N.H. Rev.
Stat. Ann. § 354-A:19, and
(C) also retaliating against her because she had taken
leave under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2615(a)(1).
This court has jurisdiction under 28 U.S.C. §§ 1331 (federal
question) and 1367 (supplemental jurisdiction).
Accellent has moved for summary judgment.
P. 56.
See Fed. R. Civ.
Accellent argues, among other things, that there is no
genuine dispute that
(A) it did not discriminate against Parker on account
of her disability because
2
(1) any disability-based harassment never reached
the level of an actionable hostile environment,
(2) Accellent proposed a reasonable accommodation
for Parker’s claimed disability as soon as the
company learned of it, and
(3) as a result, Accellent did not subject her to
a constructive discharge; and
(B)-(C) Accellent’s allegedly retaliatory acts were not
motivated by her disability or her exercise of her FMLA
rights.
The court agrees.
Taking the admissible evidence of record
in the light most favorable to Parker, the earliest Accellent
knew she needed an adjustable table as an accommodation for her
fibromyalgia was the day they removed the adjustable table--and,
within a week, Accellent had proposed transferring her to a
different manufacturing line, where all of the work tables were
adjustable.
After Parker nevertheless continued working on the
same manufacturing line for two more days, she availed herself of
a brief period of FMLA leave, then, after ignoring Accellent’s
invitation to formally request an accommodation, announced she
was quitting.
Based on these undisputed facts, no rational jury
could find that Accellent discriminated against Parker due to her
claimed disability, including by failing to reasonably
accommodate it.
Nor could a rational jury find that Accellent
retaliated against Parker for requesting the accommodation, or
for taking FMLA leave.
Following oral argument, then, the court
3
grants Accellent’s motion for summary judgment, for the reasons
detailed below.
I.
Applicable legal standard
Summary judgment is appropriate where “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.”
P. 56(a).
Fed. R. Civ.
A dispute is “genuine” if it could reasonably be
resolved in either party’s favor at trial by a rational
fact-finder, and “material” if it could sway the outcome under
applicable law.
(1st Cir. 2010).
See Estrada v. Rhode Island, 594 F.3d 56, 62
In deciding summary judgment, the court “views
all facts and draws all reasonable inferences in the light most
favorable to the non-moving” party.
Id.
The following
background facts are set forth in accordance with that standard.3
3
Accellent faults Parker for her response to their statement
of material facts, arguing that, because its format and substance
“leave it unclear as to whether [she] disputes” Accellent’s
stated facts, the court should deem all of those facts admitted
under L.R. 56.1(b). As this court has explained, though, this
rule “does not envision the non-movant’s version of facts as a
response to the movant’s version; the rule requires only that the
opposition memorandum ‘incorporate a short and concise statement
of material facts, supported by appropriate record citations, as
to which the adverse party contends a genuine dispute exists so
as to require a trial.’” Grivois v. Wentworth-Douglas Hosp.,
2014 DNH 017, 5 n.1 (quoting former L.R. 7.1(b)(2)). Despite its
unorthodoxies, Parker’s factual statement complies with this
rule, so the court has considered her stated facts in its ruling,
insofar as they are supported by admissible evidence of record.
4
II.
Background
In 1995, Parker began working Accellent, which manufactures
medical devices at a facility in Laconia, in the Lakes Region of
New Hampshire.
The facility operates in a “cellular
manufacturing” environment, where each “cell” is dedicated to the
manufacture of a particular product assembled as it moves through
different stations along a production line.
While Parker briefly
held a supervisory role as a “cell coordinator,” she spent most
of her career with Accellent as an assembler, working at
different stations within the so-called “flexible” line, and
also, from time to time, on the “speciality” and “rigid” lines.
In 1997, Parker notified Accellent that she had
fibromyalgia, a condition marked by overall pain and fatigue
throughout the body.
More than a decade later, in March 2008,
Parker sought FMLA leave as a result of her fibromyalgia,
presenting a form from her health care provider noting that
episodes of incapacitation were likely to occur between 1 and 3
days every month, and that Parker might “not be able to stand
[or] extend [her] head for a regular work day on some days due to
pain and fatigue.”
Between then and 2011, Parker took “a handful
of days” of FMLA leave each year for her fibromyalgia, she
recalls, but she has not identified the dates of that leave any
more specifically, by resort to her time records or otherwise.
5
From early February through early April 2011, Parker
accepted a voluntary furlough from Accellent so that she could
care for her adult daughter, who had cancer.
(Accellent had
offered FMLA leave to Parker for this purpose, but she declined.)
Parker attests that, when she returned to the workplace,
“harassment” at the hands of her foreman, Linda Edmonds,
“increased.”
This alleged harassment took the form of a
statement to Parker in April 2011 that Parker “had no right to
make decisions [on her line] because [she was] out all the time,
[she was] not there enough, [she was] out sick a lot.”
Edmonds
also told Parker that she was “too slow” and “need[ed] to speed
[her work] up.”
On Monday, June 6, 2011, Parker arrived at work from another
voluntary furlough to find maintenance workers setting up a
stationary table at her work station, replacing the adjustable
hydraulic table that had been there previously.
(The height of
the adjustable table could be changed by pushing a button.)
When
Parker asked them if they could return the adjustable table, the
workers explained that they were acting at the direction of
Parker’s supervisor, Larry Weber.
Parker then called Weber.
Despite some equivocation at her
deposition as to the substance of this conversation, Parker
states in her affidavit in response to the summary judgment
6
motion that she “asked why he took [her] hydraulic table after
the conversations [she] had with him about it being an
accommodation for [her] fibromyalgia and that [she did] adjust it
during the day,” and that Weber said that he “had forgotten about
that” but “would talk to [] Edmonds and get back to” Parker.4
After not hearing from Weber for about half an hour, Parker
approached Edmonds and asked her to arrange for the return of the
adjustable table, “reminding her that [Parker] needed it as an
accommodation for [her] fibromyalgia,” as she says in her
affidavit.
Edmonds “screamed at [Parker] to get [her] butt back
to work, that the tables were not going to be changed and that
[she] needed to get used to it.”
Parker acknowledged that, after
she returned to her work station, she said, in the presence of
several of her co-workers, “this is bullshit,” and also “probably
said [] the ‘F’ word a few times.”
4
After a co-worker announced
Asked at her deposition whether, during this conversation,
she had mentioned her fibromyalgia, Parker responded that she had
“mentioned it. They all knew. It’s in the records. [Weber] had
been there long enough that [he and Parker] had discussed it at
length, [her] daughter’s illness, [her] four herniated discs.”
Asked whether, because “these were all things that people knew
already,” she “didn’t feel it necessary to mention it [sic]
again,” Parker responded that she “probably did,” then that was
“sure [she] did,” then, finally, that she was “not sure.” Taking
the record in the light most favorable to Parker, however, this
court has adopted the version of the conversation set forth in
her affidavit.
7
that she was “sick of hearing about the table,” Parker also
uttered what she has described as “a few choice words.”
Later that day, Parker submitted a handwritten “formal
complaint” to “Accellent Management” as a “last attempt to get an
ongoing issue resolved.”
The issue, according to the complaint,
was that Parker “and many of the ladies on the flexible line have
been constantly belittled and spoken to in a harassing and
vicious manner by Linda Edmonds,” though the complaint does not
attribute any disability-based animus to this harassment.
The
complaint also states that Parker’s “not being on the line for
awhile . . . because of a very sick daughter[,] and [having] that
thrown in my face[,] was the lowest blow.”
Parker’s complaint
does not, however, mention any harassment for being out sick--nor
does it mention the adjustable table, whether as an accommodation
for her fibromyalgia or otherwise.
Parker worked at the stationary table throughout that day,
as well as the next day, Tuesday, June 7.
But, she says, this
caused her “[f]ibromyalgia and back/neck problems to flare up
with increasing pain,” so she took the rest of the week off as
FMLA leave.
When Parker returned to work the following Monday,
June 13, she was summoned to a meeting with Weber and Mary
Morris, where she received a “corrective performance review.”
This review criticized Parker for much of her behavior of June 6,
8
including repeatedly leaving her work station, and yelling and
swearing, to object to the removal of the adjustable table.5
The
review advised Parker that, while she “must accept the decisions
made by management,” she could question a decision by “providing
additional information or opinion no more than twice to any one
individual” and “bringing her concerns to the next person up in
the chain of command if and when she has further questions about
the decision made.”
Parker says that, at this meeting, she “again told [] Morris
and [] Weber that [Parker] needed the adjustable table as an
accommodation for [her] physical conditions” and “reminded
[Weber] that [he and Parker] had discussed it a year ago when
[she] informed him that [she] needed it for fibromyalgia and four
herniated disks.”
In response, Weber said he could not remember
any such prior conversation, while Morris asked Parker why she
had not told them that previously.
In any event, at the June 13 meeting, Weber and Morris
offered to have Accellent’s engineering department “help and go
out and see what [Parker’s] problems were and . . . study it and
see what was needed.”
Weber and Morris also, as Parker
5
The review also charged that Parker had “removed company
property without authorization,” specifically, a production log
containing “proprietary information.” At the June 13 meeting,
Morris claimed she had seen Parker removing from the log from its
proper place. Parker says that this accusation is false.
9
acknowledged in her deposition, “offered [her] a transfer to the
rigid cell,” where all of the tables were adjustable, though that
“wasn’t a definite thing, it was a possibility.”
But Weber and
Morris refused to return the adjustable table that Parker had
been using on the flexible manufacturing line.
Following the
meeting, Weber told Edmonds that Parker “had stated that she
needed an adjustable table for her fibromyalgia,” and discussed
“mov[ing] [Parker] to another work station and whatever [Edmonds]
needed to do . . . to immediately help her and get her off that
work station” with the stationary table.
Edmonds then asked
Parker to move to a different work station, but Parker objected.
So, for the remainder of June 13, and the next day, June 14,
Parker worked at the stationary table on the manufacturing line,
which, she says, caused her “increasing pain” that she attributes
to her fibromyalgia.
On June 15, Parker called in sick, marking
the beginning of a period of FMLA leave.
One week later, on June
23, Morris sent Parker a letter asking her to provide updated
medical documentation of the condition necessitating her FMLA
leave, and noting that, if Parker did not require FMLA leave but
nevertheless believed that “the limitations of [her] condition
interfere[d] with [her] ability to perform the essential
functions of [her] job,” she could “request a reasonable
accommodation.”
The letter further invited Parker to “discuss
10
accommodations” by calling Morris or by submitting Accellent’s
“Request for Reasonable Accommodation” form, which was attached
(and which Parker had never previously submitted).
While Parker acknowledges her receipt of this June 23
letter, she did not respond to it, either by recertifying her
need for FMLA leave or by requesting a reasonable accommodation.
Instead, Parker recalls, “[o]n or about July 10, 2011, [she]
realized that [she] could not return to work on a non-adjustable
table, and was certain that [Accellent] would not return [her]
adjustable table, as this request had been denied on multiple
occasions”--so she notified Accellent of her resignation.
Parker later applied for unemployment benefits.
Accellent
opposed Parker’s claim, stating that, among other things, Parker
had received a formal warning for, among other things,
“remov[ing] company information from property [sic] [without]
authorization”--which was indeed one of the allegations set forth
in the performance review presented to Parker on June 13.
note 5, supra.
See
This statement was contained in an October 24,
2011, e-mail Morris sent in response to a New Hampshire
Employment Security (“NHES”) official, who had asked Morris to
“provide a rebuttal” to a statement submitted by Parker (Parker’s
prior statement to NHES is not in the summary judgment record).
Ultimately, Parker’s claim for unemployment benefits was granted.
11
She later brought this action in Belknap County Superior Court
against Accellent, which duly removed it here.
28 U.S.C. § 1441.
III. Analysis
As noted at the outset, Parker has brought claims against
Accellent for:
(A) discriminating against her due to her disability in
violation of the ADA and and its state-law analog by
(1) subjecting her to a hostile work environment
due to her fibromyalgia,
(2) failing to reasonably accommodate that alleged
disability, and
(3) constructively discharging her due to that
alleged disability;
(B) retaliating against her because she complained
about that discrimination, in further violation of the
ADA and state law; and
(C) also retaliating against her because she had taken
leave under the FMLA.
Accellent has moved for summary judgment on all of Parker’s
claims.
For the reasons explained below, the motion is granted
in its entirety.
A.
Disability discrimination
1.
Hostile environment
In relevant part, the ADA prohibits “discriminat[ion]
against a qualified individual on the basis of disability in
12
regard to . . . terms, conditions, and privileges of employment.”
42 U.S.C. 12112(a).
New Hampshire law likewise forbids an
employer, “because of the . . . physical or mental disability
. . . of any individual,” to “discriminate against such
individual . . . in terms, conditions or privileges of
employment.”
N.H. Rev. Stat. Ann. § 354:A-7, I.
The parties
assume, for present purposes, that these prohibitions reach
disability-based harassment in the workplace, so the court will
make the same assumption.
See Quiles-Quiles v. Henderson, 439
F.3d 1, 4 n.1 (1st Cir. 2006) (“Although we have not had occasion
to evaluate disability harassment as a viable theory of recovery,
we have assumed that it is viable.”); cf. Madeja v. MPB Corp.,
149 N.H. 371, 378 (2003) (relying on cases interpreting federal
employment discrimination law to aid interpretation of N.H. Rev.
Stat. Ann. § 354-A).
To prevail on a claim of disability-based workplace
harassment, Parker must prove that (1) she has a disability,
(2) she was subjected to a hostile environment, and (3) the
hostility was directed at her because of her disability.
Quiles-Quiles, 439 F.3d at 5.
In moving for summary judgment,
Accellent argues that Parker lacks evidence for a rational jury
to find in her favor on any of these elements.
Because the court
agrees that no rational jury could find that the alleged
13
harassment, to the extent it was based on Parker’s claimed
disability, rose to the level of a hostile environment, the court
need not and does not decide whether a rational jury could find
that she was disabled in the first place (instead, for purposes
of this order, the court has simply assumed Parker is disabled).
The record, taken in the light most favorable to Parker,
shows that, starting in April 2011, Edmonds “ma[de] comments [to
Parker] like, ‘You’re too slow’ or ‘You need to speed it up.’”6
But these comments, on their face, were merely criticisms of
Parker’s work performance--none of them referred to her claimed
disability, even obliquely.
Nor is there any evidence that
Edmonds singled Parker out for this kind of criticism based on
her claimed disability--to the contrary, when she filed her
complaint, Parker alleged that not just she, but “many of the
ladies on the flexible line” had been “spoken to in a harassing
and vicious manner” by Edmonds.
On this record, no rational jury
could find that Edmonds subjected Parker to this criticism based
6
Parker seems to suggest that because, on her version of
events, “harassment by Ms. Edmonds increased” after Parker
returned from her voluntary furlough in April 2011, a jury could
find a link between the alleged harassment and her claimed
disability. But Parker took that furlough to care for her ailing
daughter, not because of her disability, and there is no evidence
that Edmonds mistakenly believed that Parker had actually been
absent due to her own medical condition. So the timing of the
alleged harassment vis-a-vis the furlough does not rationally
suggest a disability-based animus.
14
on her disability.
See Joens v. John Morrell & Co., 354 F.3d
938, 941-42 (8th Cir. 2004) (affirming entry of summary judgment
against hostile environment claim arising out of foreman’s
criticizing plaintiff’s performance, given the “neutral nature of
[foreman’s] complaints” and lack of evidence that foreman treated
plaintiff differently from other employees).
Parker also relies on Edmonds’s statement that Parker “had
no right to make decisions in flexible cell because [she was] out
all the time, [she was] not there enough, [she] was out sick a
lot,” as well as the incident of June 6, when, after Parker
“remind[ed] [Edmonds] that [Parker] needed [the adjustable table]
as an accommodation for [her] fibromyalgia,” Edmonds “screamed at
[Parker] to ‘get [her] butt back to work, that the tables were
not going to be changed and that [she] needed to get used to
it.’”
Even assuming that a jury could find that this behavior
was motivated by Parker’s disability, these two incidents are
manifestly insufficient to establish a hostile environment claim.
To prevail on such a claim, a plaintiff must “show that his
‘workplace [was] permeated with discriminatory intimidation,
ridicule, and insult that [was] sufficiently severe or pervasive
to alter the conditions of . . . [his] employment and create an
abusive working environment.’”
Quiles-Quiles, 439 F.3d at 7
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
15
Two comments from a supervisor, even if one of them was screamed,
do not meet this standard.
See Pomales v. Celulares Telefonica,
Inc., 447 F.3d 79, 83-84 (1st Cir. 2006).
The court grants
Accellent’s motion for summary judgment on Parker’s hostile
environment claims.
2.
Failure to accommodate
Another form of job discrimination banned by the ADA and its
state-law analog is “not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified
individual with a disability.”
42 U.S.C. § 12112(b)(5)(A); see
also N.H. Rev. Stat. Ann. § 354-A:7, VII(a) (same).7
But, as the
Court of Appeals has held, “[t]he obligation is on the employee
to provide sufficient information to put the employer on notice
of the need for accommodation,” including “not only notice of a
condition, but of a ‘causal connection between the major life
activity that is limited and the accommodation sought.’”
Jones
v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012)
(quoting Barbara Lindemann & Paul Grossman, Employment
7
Given the nearly identical wording of the federal and state
statutory requirements for reasonable accommodation in the
workplace, and the paucity of New Hampshire case law applying
N.H. Rev. Stat. Ann. § 354-A:7, VII(a), this court has relied
exclusively on federal case law in considering Parker’s
reasonable accommodation claims. See Madeja, 149 N.H. at 378.
16
Discrimination Law ch. 13.VI.D.1, at 880 (4th ed. 2007)).
As a
result, “the ADA’s reasonable accommodation requirement usually
does not apply unless triggered by a request from the employee.”
Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001)
(quotation marks omitted).
Accellent argues that there is no trialworthy issue as to
whether, after receiving notice of Parker’s claimed disability,
it promptly proposed a reasonable accommodation, namely,
transferring her to the rigid manufacturing line, where all of
the tables were adjustable.
But Parker argues that facts remain
in dispute both as to when she first put Accellent on notice of
her need for a workplace accommodation and as to whether Weber
and Morris offered one after, in her telling, she “reminded” them
of her need for an accommodation at the June 13 meeting.
As
explained in detail below, Parker has not come forward with
admissible evidence to dispute any fact material to either of
these issues, with the result that summary judgment must enter
for Accellent on her claims that it failed to accommodate her
alleged disability.
Parker asserts that, prior to the June 13 meeting with Weber
and Morris, she had “repeatedly informed [Accellent] (including
[her] supervisors) she needed the table for her . . . qualified
disability, and they had known for more than a year”
17
(parenthetical omitted).
But Parker’s only record support for
this assertion is her affidavit’s account of the June 13 meeting
where, she attests, she “reminded [] Weber that we had discussed
it a year ago when I informed him I needed [the adjustable table]
as an accommodation for my fibromyalgia and four herniated
disks.”
A witness’s testimony about her own out-of-court
statement “reminding” another person about a prior event is not
admissible to show that the prior event in fact occurred.
See
Fed. R. Evid. 801(c); United States v. Check, 582 F.2d 668, 68081 (2d Cir. 1978) (“a witness’s prior statements offered to prove
the truth of the matters asserted therein are not immunized from
the proscriptive effect of the hearsay rule”) (footnote
discussing inapplicable exceptions omitted).
For reasons that
are unclear, Parker’s affidavit offers no independent account of
the alleged occasion, one year prior to the June 13 meeting, when
she informed Weber that she needed the adjustable table as an
accommodation for her claimed disability, nor does she identify
any such evidence elsewhere in the record.
Parker’s affidavit further attests that, during the June 6
exchange with Weber that followed the removal of the adjustable
table, she “asked why he took my hydraulic table after the
conversations I had with him about it being an accommodation for
my fibromyalgia” (capitalization omitted).
18
Insofar as this
testimony is offered to show that, in fact, Parker and Weber had
previously discussed the adjustable table as an accommodation for
her fibromyalgia, it presents the same problem as Parker’s
testimony as to “reminding” Weber of those prior discussions
during the June 13 meeting.
And insofar as Parker offers her
testimony as to the June 6 exchange to show that she had first
requested an adjustable table as accommodation for her claimed
disability by that point--as opposed to June 13, as Accellent
asserts--this dispute is ultimately immaterial to the fate of
Parker’s reasonable accommodation claim.
By Parker’s own account, Weber responded to her telling him,
on June 6, that the adjustable table had been an accommodation
for her fibromyalgia by saying “he had forgotten about that, but
would talk to Ms. Edmonds and get back to me.”
Just one week
later, on June 13, Weber and Morris informed Parker that they
would not be returning the adjustable table, but offered that the
company’s engineers could work with Parker on an alternative
solution, and that they also could transfer her to the rigid
manufacturing line, where all of the tables were adjustable.
While Parker states in her affidavit that Morris did not in
fact “offer [her] a position on the rigid line at this time,” she
testified at her deposition that, during the June 13 meeting,
Accellent “had offered [her] a transfer to the rigid cell . . . .
19
That’s was what they had said to [her], that there was a
possibility that [she might] be transferred to the rigid
cell”--though, she later elaborated, “[t]hey didn’t know when it
would take place or if it would take place.”
As a result, Parker
asserts in her briefing, she “did not consider this as an offer.”
Putting aside the fact that, as just noted, Parker agreed in her
deposition testimony that Accellent had “offer[ed] [her] a
position on the rigid line,” whether she subjectively viewed her
employer’s raising the possibility of that transfer as an “offer”
is immaterial.
Cf. Bellino v. Peters, 530 F.3d 543, 550 (7th
Cir. 2008) (ruling that no genuine issue existed as to whether
employer offered plaintiff an accommodation despite his attempt
to characterize employer’s proposal as a refusal to accommodate).
It is undisputed that, during the June 13 meeting, Weber and
Morris at the least mentioned transferring Parker to the rigid
line, where all of the tables were adjustable, as a potential
accommodation for Parker’s claimed need for such a table (in
addition to proposing that Accellent’s engineers work with Parker
on a different solution).
It is likewise undisputed that,
despite Weber’s instructions to Edmonds “to immediately help
[Parker] and get her off that work station” with the stationary
table, Parker objected to Edmonds’s order to move to a different
work station, returning to the stationary table instead.
20
Finally, it is undisputed that, after working at the stationary
table for one more day, Parker never returned to Accellent,
taking a period of FMLA leave and then quitting--without
responding in any way to Morris’s written offer, sent just 10
days after the June 13 meeting, to fill out the company’s
workplace accommodation request form.8
In short, then, Accellent learned that Parker’s condition
allegedly necessitated an adjustable work table on (at the
earliest) June 6, 2011, and by June 13, 2011 had suggested
getting her such a table, either by transferring her to a
different production line or moving her to a different work
station.
Rather than pursuing either of these options, Parker
returned to work at the stationary table for less than two days,
then quit because, as she puts it in her affidavit, “I was
certain that they would not return my table as the request had
been denied multiple times.”
But, as Accellent points out, “an
8
Despite these undisputed facts, Parker asserts that
Accellent “did not participate in the interactive process.” It
is true that “[o]nce the employer becomes aware of the disability
of an employee, [the] employer is expected to engage in a
meaningful dialogue with the employee to find the best means of
accommodating that disability.” Tobin v. Liberty Mut. Ins. Co.,
433 F.3d 100, 108 (1st Cir. 2005). Based on the undisputed facts
just discussed, no rational jury could find that Accellent failed
to do that here. See id.; Enica, 544 F.3d at 339 (“an employer
will not be held liable if it makes reasonable efforts both to
communicate with the employee and provide accommodations based on
the information it possessed”) (quotation marks omitted).
21
employer is [not] required to provide an employee with an
accommodation of her choice.”
Enica v. Principi, 544 F.3d 328,
342 (1st Cir. 2008).
To the contrary, “[i]f more than one effective reasonable
accommodation is available, the employer may choose among them,
and is not required to provide the employee’s preferred
accommodation.”
I Barbara Lindemann et al., Employment
Discrimination Law ch. 13.VI.D.1, at 13-114 (5th ed. 2012)
(citations omitted).
Parker does not dispute that moving her to
an adjustable table, either at a different work station or on a
different production line, would have amounted to an effective
reasonable accommodation for her alleged disability--which, after
all, required nothing more than an adjustable table, even on her
view of things.
Nor does Parker claim that the one-week delay
between her request for that accommodation and Accellent’s
response itself amounted to a violation of § 12112(b)(5)(A).
Cf.
id. at 13-118 & n.522 (noting that “unnecessary delay in
responding to request for reasonable accommodation can [be an]
ADA violation”).
As a matter of law, then, Accellent did not
fail to “mak[e] reasonable accommodations” to Parker’s “known
physical or mental limitations” under § 12112(b)(5)(A).
See
Godron v. Hillsborough County, 2000 DNH 077, 2000 WL 1459054, at
*2 (D.N.H. Mar. 21, 2000) (Barbadoro, J.) (granting summary
22
judgment for employer who, in response to employee’s request to
be reassigned from night shifts to weekend shifts to accommodate
his alleged disability, expressed its willingness to assign him
temporarily to weekday shifts instead, because “[a]n employee may
not maintain an ADA claim if he rejects a reasonable
accommodation proposed by his employer”).
The same conclusion follows even if, despite the lack of
admissible evidence that Parker requested an accommodation for
her claimed disability at any point prior to June 6, the court
were to assume that, as Parker asserts, she had previously
“informed [Accellent] (including [her] supervisors) she needed
the table for her . . . qualified disability, and they had known
for more than a year.”
On this account, Accellent had been
providing Parker with the adjustable table as an accommodation
for her claimed disability until, on June 6, the company replaced
the adjustable table with a stationary one; when Parker
immediately “reminded” Weber of the status of the adjustable
table, he explained that he had forgotten that but would get back
to her; one week later, he proposed that, rather than having the
adjustable table returned to her work station on the flexible
line, Parker could be transferred to the rigid line, where all of
the tables were adjustable.
23
As just discussed, the ADA allows the employer to choose
from among available reasonable accommodations, and “[t]he fact
that [an employer] previously allowed [an employee] to engage in
[an accommodation] does not obligate [it] to continue providing
such an accommodation.”
Phelps v. Optima Health, Inc., 251 F.3d
21, 26 (1st Cir. 2001).
It follows that, even if Accellent had
previously provided Parker with the adjustable table as an
accommodation, the company would not face liability under the ADA
for removing the table and proposing a different reasonable
accommodation instead.
See Tate v. Shineski, 2010 DNH 036, 18-20
(granting summary judgment for employer who had transferred
employee to a different office without moving the special
furniture she had been provided to accommodate her limited
sitting tolerance, because, after the move, the employer had
accommodated her by letting her avoid prolonged sitting instead).
Accellent is entitled to summary judgment on Parker’s claims that
it failed to make a reasonable accommodation for her alleged
disability under both the ADA and its state-law analog.
3.
Constructive discharge
For largely the same reasons, Accellent is also entitled to
summary judgment on Parker’s claims that, in violation of the ADA
and its state-law analog, the company constructively discharged
24
her on account of her disability.
If motivated by the
plaintiff’s protected status, “a constructive discharge can
ground an employment discrimination claim.”
Suarez v. Pueblo
Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000); see also Karch v.
BayBank FSB, 147 N.H. 525, 536 (2002).
But “[a] successful
constructive discharge claim requires working conditions so
intolerable that a reasonable person would have felt compelled to
resign . . . .
The standard to meet is an objective one, [and]
it cannot be triggered solely by an employee’s subjective
beliefs, no matter how sincerely held.”
Gerald v. Univ. of P.R.,
707 F.3d 7, 25 (1st Cir. 2013) (quotation marks omitted); see
also Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248-49 (2006)
(setting forth same standard under New Hampshire law).
In the one sentence of her summary judgment memorandum
addressing her constructive discharge claims (aside from a
lengthy discussion of the facts of Lacasse which does not even
attempt to show how they resemble the facts here), Parker states
that “the repeated denial to offer the [reasonable
accommodation], absent undue business hardship, or another
[reasonable accommodation], could lead a jury to determine [she]
was constructively discharged.”
But there were not “repeated
denials,” or even one denial, of an accommodation to Parker.
25
Again, the undisputed facts are that Accellent proposed
moving Parker to the flexible line, where all of the tables were
adjustable, within one week of when she notified the company that
she needed an adjustable table as an accommodation for her
claimed disability, but that, after declining reassignment to a
different work station on the rigid line, she worked for less
than two additional days before taking a brief period of FMLA
leave and then quitting (without responding to the company’s
invitation to fill out the form it used for reasonable
accommodation requests).9
As this court has noted, “‘an employee
who leaves his employment when he has been presented with
legitimate options for continued employment with that employer
. . . is precluded from claiming constructive discharge.’”
Slater v. Town of Exeter, 2009 DNH 029, 17-18 (quoting and adding
ellipse to Lapointe v. United Autoworkers Local 600, 103 F.3d
485, 489 (6th Cir. 1996)).
In light of Parker’s failure to dispute that moving to the
adjustable tables of the rigid line was presented to her, or that
it was a legitimate option, see Part III.A.1.b, supra, her
9
Alternatively, if Parker’s hearsay account of her prior
conversations with Weber is accepted, he had accommodated her
with the adjustable table for more than a year, then, on the day
the table was replaced, told her he had forgotten about that but
that he would get back to her--which he did, one week later, when
he proposed moving her to the flexible line. Those facts also
fail to establish constructive discharge as a matter of law.
26
constructive discharge claim fails as a matter of law, because no
jury could find those “working conditions so intolerable that a
reasonable person would have felt compelled to resign.”
Gerald,
707 F.3d at 25 (granting summary judgment against constructive
discharge claim arising out of plaintiff’s transfer to a new
position that merely imposed “some slight . . . inconveniences
and costs”).
Accellent is entitled to summary judgment on
Parker’s constructive discharge claims.
B.
Retaliation
“The ADA, broadly speaking, makes it illegal for employers
. . . to retaliate against someone because she opposes an act
made unlawful by the ADA.”
Collazo-Rosado v. Univ. of P.R., 765
F.3d 86, 92 (1st Cir. 2014) (citing 42 U.S.C. § 12203(a)); see
also N.H. Rev. Stat. Ann. § 354-A:19.
To make out a claim of
retaliation under the ADA, “a plaintiff must show (1) that he
engaged in protected conduct, (2) that he suffered an adverse
employment action, and (3) that there was a causal connection
between the protected conduct and the adverse employment action.”
Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35 (1st Cir.
2010); see also Madeja, 149 N.H. at 379 (applying New Hampshire
law).
In support of her retaliation claims, Parker identifies,
as her protected conduct, her “multiple requests” for an
27
accommodation for her claimed disability, and, as the adverse
actions, the “final warning for complaining about removal of the
table” and Accellent’s allegedly “false reports” in opposition to
her claim for unemployment benefits.10
Accellent does not question that the ADA protects an
employee’s request that her employer accommodate her disability,
see, e.g., Carreras, 596 F.3d at 35-36, nor that giving an
employee a formal performance warning is an adverse action, see,
e.g., Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir.
2008).
(While Accellent argues that its response to Parker’s
unemployment claim was not an adverse action as a matter of law,
the court has simply assumed for the sake of argument that it
could be.)
In moving for summary judgment on Parker’s
retaliation, Accellent argues principally that no rational jury
could find a causal connection between her request for a
10
Parker’s submissions also suggested that Accellent had
retaliated against her by asking her to recertify her need for
FMLA leave in late June 2011, but she clarified at oral argument
that this was not part of her retaliation claim. Parker’s
summary judgment objection also refers, without elaboration, to
“changing [her] RA request outright.” Insofar this is intended
to suggest that Accellent mishandled, or improperly denied,
Parker’s request for a reasonable accommodation, the court doubts
that an employer can be said to have retaliated against an
employee for making such a request by denying the request (that
conduct would seem to be redressible under the ADA’s reasonable
accommodation provision, rather than its anti-retaliation
provision) but, in any event, no rational jury could find that
Accellent denied Parker an accommodation, as already discussed at
length. See Part III.A.2, supra.
28
workplace accommodation and its alleged adverse actions.
The
court agrees.
To start with, it bears repeating that Parker has not come
forward with admissible evidence that she asked Accellent for an
accommodation until June 6, 2011, during her call to Weber that
followed her discovery that the adjustable table had been
removed.
See Part III.A.2, supra.
Parker points to the fact
that, just one week later, Accellent presented her with the
“corrective performance review” which, she asserts, amounted to a
“warning for complaining about removal of the table.”
An
examination of the document itself, however, makes clear that it
did not admonish Parker for opposing the removal of the table,
but for how she went about it:
she “walked off the job without
notifying [Edmonds] on five separate occasions”; she “took it
upon herself to try to get the adjustable table back by
contacting the maintenance supervisor in charge of moving
facility equipment” rather than “work[ing] through proper
channels”; and “she yelled and swore.”
Parker makes much of the
statement in the review that she “must accept the decisions made
by management,” taking this to mean that she should not have
questioned the removal of the table in the first place, but that
statement is immediately followed by advice on how she “may
29
question [such] a decision”--setting forth an orderly procedure
that she clearly had not followed on June 6.
On any defensible reading, then, the “corrective performance
review” does not suggest that Parker was reprimanded for
requesting accommodation for her disability, but rather for
leaving her work station, attempting to circumvent a managerial
decision by enlisting the maintenance staff, and yelling and
swearing (and Parker does not dispute having done any of these
things.)
Those actions were not protected by the ADA, even if
they were sincerely motivated by Parker’s desire to see her
disability accommodated.
Indeed, “[a]n employer does not violate
[federal workplace retaliation law] when it takes adverse
employment action against an employee to preserve a workplace
environment that is governed by rules, subject to the chain of
command, free of commotion, and conducive to the work of the
enterprise,” because “disruptive or unreasonable protests against
discrimination are not protected activity.”
Matima v. Celli, 228
F.3d 68, 79 (2d Cir. 2000) (citing cases).
So Parker cannot premise her retaliation claim on the
“corrective performance review” itself, which, again, simply
criticizes her for her disruptive and inappropriate conduct on
June 6.
Nor has she come forward with evidence disputing that
the review accurately depicted her behavior that day, or
30
suggesting that she would not have received the warning but for
the fact that she had, on that same day, requested an
accommodation of her disability.11
See Palmquist v. Shinseki,
689 F.3d 66, 74-77 (1st Cir. 2012) (holding that a claim of
retaliation under the ADA requires the plaintiff to prove that
her protected conduct was the but-for cause of the adverse
action).
Finally, there is the fact--undisputed, as already
discussed, see Part III.A.2, supra--that, at the very same
meeting where they provided her with the corrective performance
review, Weber and Morris proposed accommodating Parker’s claimed
disability.
On this record, no rational jury could find a causal
connection between Parker’s request for an accommodation--as
distinct from the manner in which she communicated it--and the
corrective performance review.
The same is true of the other allegedly adverse action,
namely, Accellent’s telling NHES that Parker had received the
corrective performance review for, among other things, “removing
proprietary company information from property [sic] [without]
authorization.”
That was indeed one of the infractions that
Accellent had cited in the review itself, see note 5, supra, and,
on its face, Morris’s email containing this allegedly retaliatory
11
There is no evidence that, for example, other employees
who had engaged in similar misconduct but who had not requested
accommodations escaped like discipline.
31
statement merely conveyed the substance of the review--and did so
in response to a request from NHES asking her for a rebuttal to a
statement from Parker.
Parker has not come forward with any
evidence even remotely suggesting that, had she not requested an
accommodation for her claimed disability, Morris would not have
included the complained-of statement in her response to NHES,
which is fatal to her claim that the statement was retaliatory.
See Palmquist, 689 F.3d at 77.
Parker’s sole attempt to suggest a causal connection, in
fact, consists of a single sentence in her summary judgment
objection that invokes “temporal proximity,” but more than four
months passed between Parker’s requests for an accommodation
during the June 6 call and the June 13 meeting and Morris’s email
to NHES.
Standing alone--which it is in this case--a gap of this
length fails to show a causal connection as a matter of law.
See
Calero-Cerezo v. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004)
(“Three and four months have been held insufficient to establish
a causal connection based on temporal proximity.”).
Accellent is
entitled to summary judgment on Parker’s claims that it
retaliated against her for requesting an accommodation.
32
C.
FMLA retaliation
Finally, Accellent is also entitled to summary judgment on
Parker’s claim that it retaliated against her for taking leave to
which she was entitled under the FMLA.
The FMLA expressly makes
it “unlawful for any employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right
provided” by the Act.
29 U.S.C. § 2615(a).
Thus, “the FMLA
prohibits retaliation against employees who take FMLA leave.”
Pagan-Colon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8
(1st Cir. 2012).
To make out a prima facie case of FMLA
retaliation, an employee must show:
(1) she availed herself of a
protected FMLA right; (2) she was adversely affected by an
employment decision; and (3) there was causal connection between
her protected conduct and the adverse employment action.
Carrero-Ojeda v. Autoridad de Energia Electrica, 735 F.3d 711,
719 (1st Cir. 2014).
In moving for summary judgment on Parker’s FMLA claim,
Accellent argues that “it took no adverse employment action
against [her] for taking [FMLA] leave.”12
The court agrees:
not
only does the record contain nothing supporting a causal
12
Parker complains that Accellent has “not developed [its]
argument” for summary judgment on the FMLA claim, but it is
unclear what else needs to be said of an FMLA retaliation claim
presented without any evidence as to when the plaintiff even took
FMLA leave.
33
connection between Parker’s FMLA leave and any allegedly adverse
action, it does not even identify the dates of the FMLA leave she
took.
Indeed, the only record evidence on that point is Parker’s
testimony that, between March 2008 and June 2011, she took “a
handful of days” of FMLA leave each year.
Without identifying
the dates of her FMLA leave more specifically, Parker cannot hope
to show a causal connection between that leave and any adverse
employment actions which, by her own account, did not even begin
until the “increased” harassment by Edmonds in April 2011.
While
Parker tries to link that behavior to the furlough which
precipitated it, that furlough was, indisputably, not FMLA leave
(Accellent offered it as such, but Parker declined) and therefore
cannot serve as the predicate for an FMLA retaliation claim.
See
Speziale v. Bethlehem Area Sch. Dist., 266 F. Supp. 2d 366, 376
(E.D. Pa. 2003) (granting summary judgment against FMLA
retaliation claim where, “despite possibly qualifying for FMLA
leave, [the plaintiff] did not ask for it”).
Accellent’s motion
for summary judgment on the FMLA retaliation claim is granted.
34
IV.
Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment13 is GRANTED.
Parker’s motion for an extension
of time to make her final pre-trial filings13 is DENIED as moot.
The clerk shall enter judgment accordingly and close the case.
SO ORDERED.
__________________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:
November 13, 2014
Janet R. Barringer, Esq.
Josiah M. Black, Esq.
Leslie H. Johnson, Esq.
Thomas incaid McCraw, Jr., Esq.
Steven D. Weatherhead, Esq.
13
Document no. 22.
13
Document no. 36.
35
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