Gallagher v. Unitil Service Corp.
Filing
27
///ORDER granting 18 Unitil's Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Elaine Gallagher,
Plaintiff
v.
Case No. 14-cv-20-SM
Opinion No. 2015 DNH 179
Unitil Service Corp.,
Defendant
O R D E R
Elaine Gallagher brings this action against her former
employer, Unitil Service Corp., claiming she was the victim of
unlawful discrimination.
Specifically, she says Unitil violated
the Americans with Disabilities Act (“ADA”) by discriminating
against her on the basis of her disability and by refusing to
reasonably accommodate that disability.
She also alleges that
Unitil unlawfully interfered with her rights under the Family and
Medical Leave Act (“FMLA”) by failing to provide her with proper
notification of her statutory rights and by denying her request
for intermittent leave when she returned to work after having
received treatment for a serious medical condition.
Finally, she
brings a state law claim of disability discrimination under N.H.
Rev. Stat. Ann. (“RSA”) 354-A, over which she asks the court to
exercise supplemental jurisdiction.
Pending before the court is Unitil’s motion for summary
judgment on all three claims advanced in Gallagher’s complaint.
Gallagher objects.
For the reasons discussed, that motion is
granted.
Standard of Review
When ruling on a motion for summary judgment, the court must
“constru[e] the record in the light most favorable to the nonmoving party and resolv[e] all reasonable inferences in that
party’s favor.”
(1st Cir. 2014).
Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301
Summary judgment is appropriate when the record
reveals “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.
In this context, “a fact is ‘material’ if it
potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.”
Int’l Ass’n of Machinists & Aerospace
Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).
71, 76 (1st Cir. 2011).
See also Nolan v. CN8, 656 F.3d
Nevertheless, if the non-moving party’s
“evidence is merely colorable, or is not significantly
probative,” no genuine dispute as to a material fact has been
proved, and “summary judgment may be granted.”
2
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations
omitted).
The key, then, to defeating a properly supported motion for
summary judgment is the non-movant’s ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party.
Fed. R. Civ. P. 56(c).
See generally
It naturally follows that while a
reviewing court must take into account all properly documented
facts, it may ignore a party’s bald assertions, speculation, and
unsupported conclusions.
987 (1st Cir. 1997).
See Serapion v. Martinez, 119 F.3d 982,
See also Scott v. Harris, 550 U.S. 372, 380
(2007) (“When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.”).
Importantly - at least as it relates to
this case - the non-moving party cannot create a factual dispute
by simply submitting an affidavit or deposition testimony that
contradicts his or her earlier sworn testimony without providing
an adequate explanation for that discrepancy.
See Colantuoni v.
Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).
See also Torres v. E.I. DuPont de Nemours & Co., 219 F.3d 13, 20
(1st Cir. 2000).
3
Background
In April of 2010, Unitil hired Gallagher as a temporary
systems analyst.
A few months later, she was hired as a full-
time, salaried systems analyst/programmer, with benefits.
She
worked in Unitil’s “Information Systems Department,” where she
reported to Michelle Gamble who, in turn, reported to Sean Baker.
At her deposition, Gallagher testified that she understood that,
in her new position, she would be expected to work more than 40
hours per week, if necessary.
And, she often did.
At the end of 2010, Gamble prepared Gallagher’s “Performance
Appraisal,” and gave her a very good (if not excellent) review (a
“2” on a scale of 1 to 5, with lower scores being better).
Based
upon that positive performance review, Gallagher received a 3.1%
salary increase, effective January 1, 2011.
Later that year,
Gallagher began working on a sizeable project known as the
“Mobile Dispatch System.”
Her workload increased and she began
working as many as 60 hours per week (occasionally more).
Then,
in the fall of 2011, Gallagher learned that she needed abdominal
surgery and notified Gamble.
On November 10, 2011, Unitil sent Gallagher a package of
materials advising her of her rights under the FMLA.
Two weeks
later, Gallagher provided Unitil with a letter from her treating
4
physician stating that she was scheduled for surgery on December
2, 2011, after which she would require approximately six weeks to
recover.
Gallagher requested, and Unitil provided, FMLA leave
that extended into late January of 2012.
Although Gamble did not
prepare a year-end “Performance Appraisal” for Gallagher
(apparently because Gallagher was on leave), Unitil again gave
her another excellent performance rating.
It also gave her a 3%
raise, effective January 1, 2012.
A little more than seven weeks after her surgery, on January
24, 2012, Gallagher returned to work and gave Unitil a note from
her doctor that provided:
Ms. Gallagher was seen and evaluated in our office
today, and may return to work this afternoon. She is
still recovering from major abdominal surgery. She is
cleared to return to work, but may work part-time from
home at her discretion, for the next two weeks, or
until February 13, 2012.
Letter from Anne Shapter, M.D., dated January 24, 2012 (document
no. 18-12).
Gallagher admits that, as expressed in that note,
her treating physicians expected her to be able to return to a
full-time work schedule by Monday, February 13, 2012.
Deposition at 83.
Gallagher
She claims, however, that her doctors had
placed additional restrictions upon her (such as advising her not
to sit for too long, not to gain weight, and not to lift heavy
objects).
She says those additional restrictions were conveyed
5
to her orally, but concedes that neither she nor any of her
treating physicians shared that information with Unitil, nor did
she ask her physicians to convey that information to Unitil.
Id., at 84.
After providing Unitil with Dr. Shapter’s letter on
January 24, Gallagher gave Unitil no additional information from
her treating physicians concerning her health, her recovery, the
need for work-place accommodations, or her alleged disability.
Gallagher says that during the two week period immediately
following her return to work (i.e., when her doctor indicated she
might need to work part-time from home, at her option), she
approached Gamble “on a few occasions” to say that she was “ready
to call it quits for the day.”
Gallagher Deposition at 82.
In
response, says Gallagher, Gamble “started giving [her] a list of
things that had not yet been accomplished.”
Id.
From that,
Gallagher inferred that she could not (or at least should not)
leave the office until that work was completed and, therefore,
she did not go home.
But, she did not tell Gamble she needed to
rest as a result of her surgery the prior December.
Nor did she
remind Gamble of her doctor’s recommendation that she be
permitted to work from home, if she felt it necessary.
Nor did
she speak with anyone else at Unitil about going home and working
on a part-time schedule.
Id.
In short, Gallagher gave no
indication (to Gamble or anyone else at Unitil) that she was
6
unwilling or unable to return to work on those “few occasions”
she told Gamble she was ready to go home for the day, nor did she
mention any need for rest, nor did she even allude to her alleged
disability.
After February 13, 2012 (i.e., the date her doctor indicated
she could return to full-time work, without restriction),
Gallagher says she often complained that she “was working
excessive work hours,” id. at 84, and asked either Gamble or
Baker “if there was something that we could do about maybe
shifting some of the responsibility off to other people that
shared the same title as myself and were certainly capable of
completing some tasks,” id. at 90.
According to Gallagher,
little was done to reduce her workload.
As further evidence of
her difficult working conditions, Gallagher also claims that at
some point in February or March of 2012, Gamble told her, “Why
don’t you climb to the roof and jump.” Transcript of Appeal
Tribunal Hearing (June 14, 2012) (document no. 18-14) at 25.
According to Gallagher, her repeated complaints about the
number of hours she was working each week, and her calls for
Gamble to re-allocate her work to others, constituted requests
for accommodation under the ADA.
She says they also implicitly
amounted to requests for “intermittent leave” under the FMLA.
7
She concedes, however, that she never used the words
“accommodation” or “intermittent leave,” nor did she ever
specifically invoke the ADA or FMLA.
Nor did she ever expressly
link her need to assume a lighter workload to her surgery in
2011.
Instead, says Gallagher, because Unitil knew she had
undergone abdominal surgery in December of 2011 and because it
(allegedly) understood the recovery process was lengthy, Unitil
was on notice that she might require some form of accommodation.
According to Gallagher, those accommodations were never
forthcoming and her implicit requests for “intermittent leave”
under the FMLA were ignored.1
1
Parenthetically, the court notes that while Gallagher
repeatedly refers to her “lengthy recovery process” she never
specifically states what that entailed or how it affected her
ability to work (e.g., prolonged fatigue, inability to
concentrate for long periods, etc.). The only reference she
makes in that regard is to her claim that, on more than one
occasion, Baker witnessed her experiencing some sort of
unspecified pain. See Gallagher Deposition at 91. Nevertheless,
she asserts that Unitil was “well aware” that her “recovery
process” from abdominal surgery could require at least a year.
But, the information provided to Unitil from Gallagher’s treating
physician certainly suggested that her recovery period would be
substantially shorter. See Letter from Anne Shapter, M.D.,
(document no. 18-9) (“Recovery after such a surgery is estimated
at 6 weeks.”). Dr. Shapter also stated that, during that
recovery period, “a treatment/recovery plan will be made if
necessary.” Id. Apparently, such a “recovery plan” was not
necessary. At a minimum, it was not communicated to Unitil,
because upon Gallagher’s return to work following FMLA leave, the
only restriction Dr. Shapter imposed on Gallagher was that she be
given the option to work part-time from home for the first two
weeks, at Gallagher’s election.
8
In late March of 2012, with much (if not all) of the work on
the Mobile Dispatch System project complete, Gallagher took a
one-week paid vacation.
She returned to work on Monday, April 2.
That day, she spoke with Baker about resigning from Unitil.
At
this point, Gallagher’s account of the events surrounding her
separation from Unitil becomes somewhat inconsistent.
And, she
has not adequately explained the reason for her inconsistent
recollection of relevant events.
See generally Colantuoni, 44
F.3d at 4-5; Torres, 219 F.3d at 20.
At her deposition, which was taken in January of 2015
(almost three years after her resignation) Gallagher described a
conversation with Baker in which she raised issues about her
health, the demands that upcoming projects would place on her
time, and the “possibility” of resigning.
So I proceeded to have a conversation with Mr. Baker
about the ongoing issues, [which] he was well aware of
since I had discussed them with him many times. And
during 2011 and in 2012, you know, expressing my
concern that I wasn’t able to heal properly, it was
going to be a year recovery, as they were aware. And
that I saw the upcoming projects becoming more
demanding than the MDS project had already been. In
that conversation, I told Mr. Baker that I didn’t see
any other options since it had been addressed so many
times. Nothing changed. Possibly resigning. We
discussed that possibility.
Gallagher Deposition at 98.
In response, says Gallagher, Baker
asked her not to resign, told her to take the remainder of the
9
afternoon off so she could rest, and said he would “be back in
contact with [her] as to when we would be meeting with HR.”
at 99.
Id.
Gallagher now claims that the anticipated meeting with
human resources was to address “accommodations she needed due to
her disability,” Plaintiff’s Memorandum at 10 - a factual claim
unsupported by either her deposition testimony or any other
evidence in the record.
Indeed, as discussed below, that claim
is contradicted by testimony Gallagher gave more than two years
earlier.
During her unemployment benefits hearing, which was held in
June of 2012 - about two months following her separation from
Unitil - Gallagher’s testimony was decidedly different.
She
testified that, on April 2, 2012, she unequivocally informed
Baker that she intended to resign, effective immediately.
In
response, Baker “asked if I could hold off on my resignation
being effective immediately because there were some exit
interviews that HR wanted to go through and there were some other
processes.”
Transcript of Appeal Tribunal Hearing (June 14,
2012) (document no. 18-14) at 33.
Gallagher further testified as
follows:
Question:
So you originally told him that you were
resigning immediately?
10
Answer:
But then he convinced me not to do that. He
asked me and as a professional courtesy I did
say that I would continue to stay on.
* * *
Question:
What was it that he wanted you to stay on for,
to do what? Something specific?
Answer:
Just to hand things over and make sure
everything was in good order, have my exit
interview with Kim.
Id. qt 33-34 (emphasis supplied).
Baker testified similarly,
saying that Gallagher was very clear that she intended to resign
immediately, without the traditional two weeks’ notice.
I remember her saying specifically, “I’m not giving two
weeks’ notice” as being important, near the beginning
of the conversation, and I can’t say the exact wording,
but I know that was a concept introduced: There will be
no notice.
* * *
I told her that it’s not - she was not going to be
required to come back and sit in her chair for two
weeks; that she could still leave on professional terms
in a way that was comfortable to her that we could work
out together to just accomplish what needs to be done
for everyone’s benefit.
Deposition of Sean V. Baker (document no. 21-5) at 51.
Gallagher testified that Baker did not say exactly how long
he wanted her to remain at Unitil, but she left “with the
understanding that [Baker] would be in contact with [her] to
provide [her] with a follow-up as to what needed to take place.”
11
Transcript of Appeal Tribunal Hearing, at 34.
When asked how
long she would have been willing to delay the effective date of
her resignation, Gallagher said she “would have stayed two weeks,
a month.
It would have been whatever they needed for me to do.”
Id. at 35.
At that hearing, Gallagher did not mention any
conversation with Baker about her health issues, unfulfilled
requests for accommodation, or proposed future accommodations.
Instead, when asked why she was resigning, Gallagher stated that
she felt her relationship with Gamble “continued to deteriorate,”
she had not received her annual review, she felt she lacked job
security and feared an upcoming project would be phased out, and
she believed she was working excessive hours.
See Id. at 14.
The day after she spoke with Baker, Gallagher says she
realized that “something got lost in translation.”
Id. at 35.
While Gallagher was preparing for work, Gamble called her and
left a message on her phone.
In it, she asked Gallagher to
return her work-related equipment and to submit a formal
resignation letter.
See Gallagher Deposition at 103.
But, to
the extent Gallagher felt there had been some misunderstanding
about the timing of her resignation (or even whether she planned
to resign at all) or whether Baker had pledged to speak with
human resources about accommodations to her schedule or
“intermittent leave” under the FMLA, she did not make any effort
12
to correct Gamble’s (allegedly) mistaken view.
See, Id.
(Question: “You didn’t say, ‘Michelle, gosh, there’s a
misunderstanding; I’m not resigning,’ correct?”
Answer: “No, I
did not.”).
Instead, Gallagher prepared and submitted to Gamble a
lengthy e-mail in which she announced her resignation from
Unitil, effective immediately.
In it, she wrote:
I received your voice mail this morning regarding my
resignation.
In speaking with Sean yesterday, it was my
understanding that he would be sending me an email
informing me as to when I should come in to finalize my
resignation/departure. He further stated that he
needed to get everything organized with HR and our
department and asked that I give time for those tasks
to be completed.
The following will serve as my official resignation at
your request as well as a follow up to the conversation
I had yesterday with Sean. I apologize that you were
not there to participate in the conversation.
I sincerely appreciate the opportunity to work with
Unitil however, I find it necessary to resign my
position as a staff employee effective immediately.
I do not take this decision lightly and have thought
about it in depth but find this decision to be in my
best interest at this point in my personal and
professional life.
I believe that it’s a good time for both Unitil and
myself to resign as I have just completed the MDS
project and have not yet engaged in another project
full time.
13
I will be available for consulting if Unitil finds it
necessary to engage my assistance and welcome any
opportunity to assist. My contract rate is $65.00/hr.
I will sincerely miss everyone in the group as I have
found working with everyone here to be both enjoyable
and rewarding.
As always, I can be reached on my cell phone: 978-XXXXXXX.
My pager has been left on my desk. I will return my
laptop and badge when my final paycheck is ready for
pickup and the exit interview has been scheduled per
Sean’s request.
I await your phone call or email for further
instructions.
Resignation Letter dated April 3, 2012 (document no. 18-2)
(emphasis supplied).
Again, Gallagher made no mention of Baker’s
alleged pledge to make accommodations to her schedule under the
ADA or grant what she calls an implicit request for “intermittent
leave” under the FMLA.
Instead, Gallagher’s letter makes clear
that the anticipated meeting with human resources was “to
finalize [her] resignation/departure” and to make certain there
was an orderly transition of her work to others in the
department.
Viewed more broadly, that letter paints a picture of
someone who had enjoyed the time she spent working at Unitil;
“found working with everyone [there] to be both enjoyable and
rewarding”; would “welcome the opportunity” to return on a
consulting basis; had carefully considered both the fact and
14
timing of her resignation; and decided for both “personal and
professional” reasons, it was time to move on.
Gallagher’s subsequent efforts to secure unemployment
benefits were apparently unsuccessful.
This litigation ensued.
Discussion
I.
Federal Claims
A.
The ADA and Retaliatory Discharge.
Gallagher first claims that she was fired (or constructively
discharged) in retaliation for having invoked her right to
receive a reasonable workplace accommodation of her disability
under the ADA.
See, e.g., Plaintiff’s memorandum at 1
(“[Plaintiff] was terminated, or in the alternative,
constructively discharged, for requesting reasonable
accommodation of her disability.”).
That claim lacks a factual
basis in the record.
In support of her view that Unitil fired her, Gallagher says
her resignation was not voluntary and, instead, that she was
compelled to submit it by Gamble (who left the message on
Gallagher’s phone about submitting a formal letter of
resignation).
See, e.g., Plaintiff’s memorandum at 18 (stating
that Baker “assured” her she would remain employed and asserting
15
- somewhat paradoxically - that, after submitting her resignation
letter, she “attempted to hold onto her job, by trying to meet
with HR, emailing and calling HR, and completing the exit
interview”).2
Again, Gallagher’s position is not supported by the record indeed, both her letter of resignation and her “Exit Interview”
reveal that she gave substantial thought to the matter and, after
reflection and due consideration, arrived at the decision to
resign, effective immediately.
See, e.g., Resignation Letter
(document 18-2) (“I do not take this decision lightly and have
thought about it in depth, but find this decision to be in my
best interest at this point in my personal and professional life.
I believe that it’s a good time for both Unitil and myself to
resign as I have just completed the MDS project and have not yet
engaged in another project full time.”).
See also Exit Interview
(document no. 21-8) at 2 (“Although leaving ‘immediately’ may
sound harsh, this was well thought out and planned based on my
completion of the MDS project in conjunction with the fact that I
had not yet started any other projects.
2
All incomplete tasks
Gallagher’s “Exit Interview” is actually a document
that Unitil e-mailed to her, following her resignation.
According to her deposition testimony, Gallagher “took a couple
weeks, filled that out, [and] sent it back to [human resources].”
Gallagher deposition at 110. It is, therefore, entirely unclear
how completing that document constituted an “attempt to hold on
to her job.” Plaintiff’s memorandum at 18.
16
were well documented so that they could be easily transferred to
another resource.”).
As the record indisputably reveals, Gallagher resigned from
her position at Unitil; she was not fired.
As a fallback
position, however, Gallagher claims she was “constructively
discharged” - that is, she says she was forced to endure
conditions of employment so intolerable that a reasonable person
in her position would see no plausible alternative except to
resign.
But, it is unlikely that the conditions of employment
identified by Gallagher were so intolerable as to meet that
rather high legal threshold.
See generally Porter v. City of
Manchester, 151 N.H. 30, 42 (2004) (noting that the intolerable
conditions of employment must be “ongoing, repetitive, pervasive,
and severe.”).
See also Suarez v. Pueblo Int’l, Inc., 229 F.3d
49, 54 (1st Cir. 2000) (“The workplace is not a cocoon, and those
who labor in it are expected to have reasonably thick skins thick enough, at least, to survive the ordinary slings and arrows
that workers routinely encounter in a hard, cold world.
Thus,
the constructive discharge standard, properly applied, does not
guarantee a workplace free from the usual ebb and flow of power
relations and inter-office politics.”).
17
It is, then, unlikely that Gallagher could demonstrate that
she was constructively discharged.
But, even if she could
surpass that hurdle and show that the conditions of her
employment were atypically onerous and harsh, Gallagher has
failed to point to sufficient record evidence to support her
retaliation claim.
Specifically, she has not identified evidence
that might support the conclusion that she was constructively
discharged because of her disability.
In other words, she has
not pointed to evidence suggesting that Unitil imposed upon her
intolerably difficult working conditions because of (or somehow
in relation to) her alleged disability - an essential element of
her disability retaliation claim.
See, e.g., Kelley v.
Correctional Med. Services, 707 F.3d 108, 115 (1st Cir. 2013)
(“To make out a prima facie retaliation claim, the plaintiff must
show that: (1) she engaged in protected conduct; (2) she
experienced an adverse employment action; and (3) there was a
causal connection between the protected conduct and the adverse
employment action.”) (emphasis supplied) (citation and internal
punctuation omitted).
Simply stated, there is a dearth of
evidence suggesting a causal connection between Gallagher’s
alleged disability and any adverse employment action by Unitil.
More specifically, Gallagher has failed to identify evidence
suggesting that, in response to (or in retaliation for) her
(implicit) requests for accommodation, Unitil decided to force
18
her to resign by making her working conditions intolerable by any
reasonable person.
Gallagher’s constructive discharge/retaliation claim
warrants little further discussion.
When viewed in isolation,
Gallagher’s factual assertions and legal arguments are quite
compelling.
But, when considered in light of the actual evidence
presented in this record, those arguments dissolve into little
more than creative thinking.
Consequently, Unitil is entitled to
judgment as a matter of law on Gallagher’s ADA retaliation claim.
B.
The ADA - Failure to Accommodate.
Next, Gallagher asserts that Unitil violated the ADA because
it “was aware of her disability and failed to provide her
reasonable accommodation.”
Plaintiff’s memorandum at 1.
Although she acknowledges that she never formally requested an
accommodation of her claimed disability, she says Unitil was
sufficiently aware of her disability to impose upon it the
obligation to inquire into whether she required some sort of
accommodation.
Again, if that claim were supported by the
factual record, it would be quite compelling.
But, a careful
review of the facts presented in this case reveals that
Gallagher’s claim lacks merit.
19
The ADA prohibits employers from discriminating against a
qualified individual with a disability.
§ 12112(a).
See 42 U.S.C.
The Act defines a “qualified individual” as “an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”
§ 12111(8).
Id.
A “disability” includes “a physical or mental
impairment that substantially limits one or more major life
activities.”
Id. § 12102(2)(A).
And, finally, “substantially
limits” means that the person cannot perform a major life
function or is “significantly [limited in] the condition, manner
or duration under which [the] individual can perform a particular
major life activity, as compared to the average person in the
general population.”
29 C.F.R. § 1630.2(j)(ii).
Here, it is entirely unclear whether Gallagher even meets
the threshold of having a “disability.”
Aside from referencing
her abdominal surgery in 2011 and the medical leave she received
immediately thereafter, she has not attempted to explain the
nature or contours of her asserted disability or how it
substantially limits a major life activity (for example, although
she was not happy about it, Gallagher was able to meet Unitil’s
requests that she work a substantial number of hours each day for
extended periods of time).
Instead, she merely asserts Baker
20
witnessed her “walking out of [her] cubicle holding onto the wall
due to pain.
And we had conversations about being in pain.”
Gallagher deposition at 91.
That Gallagher was uncomfortable or
even experiencing some pain on one or more occasions does
establish that she was “disabled,” as that term of art is used in
the ADA.
Nevertheless, even assuming (without deciding) that she was,
at all times relevant to this litigation, disabled, the record
does not support her claim that Unitil failed to honor its
obligations under the ADA to accommodate that disability.
See
generally 29 C.F.R. § 1630.2(j)(1)(iii) (“[T]he threshold issue
of whether an impairment ‘substantially limits’ a major life
activity should not demand extensive analysis.”).
As the court
of appeals for this circuit has explained:
Where a plaintiff alleges a failure to accommodate, the
plaintiff must show that the employer knew about
plaintiff’s disability and did not reasonably
accommodate it. . . . A plaintiff must explicitly
request an accommodation, unless the employer otherwise
knew one was needed. An accommodation request must be
sufficiently direct and specific, and it must explain
how the accommodation is linked to plaintiff’s
disability. The obligation is on the employee to
provide sufficient information to put the employer on
notice of the need for accommodation. This means not
only notice of a condition, but of a causal connection
between the major life activity that is limited and the
accommodation sought.
21
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir.
2012) (emphasis supplied) (citations and internal punctuation
omitted).
See also Reed v. LePage Bakeries, Inc., 244 F.3d 254,
261 (1st Cir. 2001) (“The employee’s request must be sufficiently
direct and specific, giving notice that she needs a special
accommodation.
At the least, the request must explain how the
accommodation requested is linked to some disability.”);
Bellerose v. SAU No. 39, 2014 WL 7384105 at *5, 2014 DNH 265 at
13 (D.N.H. Dec. 29, 2014) (“Typically, the ADA’s reasonable
accommodation requirement is not triggered until the employee
makes a request because an employee’s disability and concomitant
need for accommodation are often not known to the employer until
the employee requests an accommodation.”) (citation and internal
punctuation omitted).
See generally 42 U.S.C. § 12112(b)(5)(A)
(imposing liability on employers for failing to reasonably
accommodate “known physical or mental limitations”) (emphasis
supplied).
Cf. 29 C.F.R. § 825.301 (“An employee giving notice
of the need for FMLA leave does not need to expressly assert
rights under the Act or even mention the FMLA to meet his or her
obligation to provide notice, though the employee would need to
state a qualifying reason for the needed leave and otherwise
satisfy the notice requirements set forth in § 825.302 or §
825.303 depending on whether the need for leave is foreseeable or
unforeseeable.”) (emphasis supplied).
22
Perhaps most importantly (at least as the ADA relates to
this case), the court of appeals has specifically held that, “The
employer has no duty to divine the need for a special
accommodation where the employee merely makes a mundane request
for a change at the workplace.”
Reed, 244 F.3d at 261.
When
Gallagher asked Gamble to reduce the number of hours she was
expected to work and/or to transfer some of her work to others in
the department, that constituted just such a “mundane request for
change at the workplace.”
Even though Unitil knew that Gallagher
had undergone surgery in December of 2011, Gallagher’s requests
relating to (and complaints about) her working hours were not
sufficient to cause Unitil to even suspect that she was invoking
her rights under the ADA.
Nor could Unitil have reasonably
inferred that Gallagher’s requests for fewer working hours were
linked to a qualifying disability, or even some extended recovery
period associated with her abdominal surgery.
Gallagher disagrees, asserting that Unitil was actually
aware of both her disability and her need for an accommodation
(in the form of reduced hours).
In support of that view, she
says that the vague reference in her resignation letter to her
understanding that Baker needed to “get everything organized with
HR” was actually an allusion to a plan that she and Baker had
worked out, under which: (1) she agreed not to resign; (2) Baker
23
agreed to set up a meeting with himself, “HR, and potentially
Gamble, to discuss accommodations [Gallagher] needed due to her
disability and serious health conditions, which would allow her
to continue working.”
Plaintiff’s memorandum (document no. 21-1)
at 10 (emphasis supplied).
Then, says Gallagher, in retaliation
for having mentioned her need for accommodation with Baker at
that meeting, Unitil “forced” her to submit a letter of
resignation.
Id. at 13.
See also Complaint at para. 28 (“When
plaintiff addressed the lack of accommodation with her
supervisors, she was terminated.”).
That construction of the record is simply not supported by
anything before the court - including Gallagher’s own sworn
testimony.
See, e.g., Transcript of Appeal Tribunal Hearing, at
33 (“And [Baker] asked if I could hold off on my resignation
being effective immediately because there were some - there were
some exit interviews that HR wanted to go through.”).
In the written document Gallagher prepared a few weeks after
resigning (i.e., her “Exit Interview”), Gallagher described the
circumstances surrounding her meeting with Baker as follows:
I had initially given [Baker] my notice in [Gamble’s]
absence and had agreed to stay on to go through the
process of the exit interview and such. [Baker] told
me I could leave for the remainder of the day - it was
already afternoon by that time. He stated that he
would send me an email instructing me what the final
arrangements were. I never received an email from Sean
24
but instead a phone call from [Gamble] and subsequent
voice mail asking me to return my badge, page, laptop,
etc. I SINCERELY wanted my opportunity for an exit
interview.
Unitil Exit Interview (document no. 21-8) at 3-4 (emphasis in
original).
Contrary to plaintiff’s current assertions, nothing
in that written statement remotely suggests that Baker pledged to
meet with human resources “to discuss accommodations she needed
due to her disability and serious health conditions,” or that she
or Baker anticipated that she would continue working at Unitil
beyond a brief transition period, or that she believed she was
forced to resign in response to a request for accommodation or
additional leave.
In a related argument, Gallagher also points to her written
“Exit Interview” as evidence of her having repeatedly asked
Gamble for accommodations of her alleged disability.
Plaintiff’s
memorandum at 13 (“In her exit interview, Gallagher reported to
[human resources] that Gamble ignored her requests for
accommodations upon her return from surgery.
Although Gallagher
had some other minor issues with Unitil, she had been working
through them.”) (emphasis supplied).
Again, however, the record
does not support Gallagher’s position - particularly her
assertion that Gamble ignored her “requests for accommodations.”
25
In her “Exit Interview,” Gallagher went on at great length
describing the “issues” she had with her employment at Unitil.
She began by saying:
First, I would like to say that I am going to genuinely
miss working with the development team at Unitil. I
sincerely enjoyed working with the entire team as I
know that having a team that ‘gets along well’ and
‘gets things done’ isn’t always easy to find in a
working environment.
I am also deeply saddened by my decision to leave but
with the circumstances, I felt it was necessary and my
only option as I have tried to resolve these issues
that surround my displeasure regarding my employment at
Unitil.
Exit Interview at 2 (emphasis supplied).
She then chronicled, in
substantial detail, the precise nature of those “issues” - a
series of displeasures with her working environment, including:
the lack of technical knowledge possessed by her supervisor,
Gamble; the lack of trust from Gamble; that Gamble would make
commitments for project deadlines without consulting her; poor
communication from Gamble; that she was excluded from meetings
she thought she should have attended; that she never received her
2011 performance review; that she felt she had little job
security and feared her job would be “phased out”; inappropriate
contact she believed Gamble had with her landlord; and what she
eventually perceived to be “disdain” that Gamble showed toward
26
her - illustrated by Gamble allegedly once telling Gallagher “why
don’t you just climb to the roof and jump.”3
To be sure, Gallagher did make reference to her concern that
she was being over-worked, claiming she complained to Gamble
several times about the number of hours she was working each
week.
Id. at 3.
Contrary to the representations in her legal
memorandum, however, she did not make any reference to a request
for an accommodation of any disability; she merely stated that
she complained about her hours and was repeatedly reassured that
she would receive “comp time” in return.
And, when Gallagher
learned that she was being given three days of comp time, she
complained that it was not sufficient.
See Exit Interview at 3.
When she confronted Baker, he said he wasn’t familiar with the
company’s policy on comp time, but assured Gallagher he would
look into it.
Gallagher says Baker never followed through on
that pledge; nor, apparently, did she follow through in any
meaningful way.
Id.
3
Consistent with what Gallagher described as her
“issues” with Unitil, Baker testified that he was aware that
Gallagher had complained about various aspects of her employment.
“I remember that they were very general complaints that went up
and down. Sometimes there were no complaints and sometimes there
were complaints indicative of a typical person who was having a
bad day. Nothing specific.” Deposition of Sean V. Baker
(document no. 21-5) at 32.
27
The point is this: the record (including Gallagher’s
performance reviews) suggests that Unitil viewed Gallagher as a
highly capable employee and relied heavily upon her - apparently
more heavily than it relied upon other, perhaps less capable,
people in her department.
And, when presented with a demanding
work schedule that required her to work many hours each week for
a sustained period of time, Gallagher asked if some of her work
could be shifted to other employees and then disputed the amount
of comp time to which she was entitled.
There is, however, no
suggestion in the record that either she or any agent of Unitil
believed (or should have believed) that she needed, or was
entitled to, an accommodation of some disability.
Nor is there
any evidence that she actually sought, but was denied, an
accommodation.
The last communication from Gallagher’s treating physician
indicated that she could perform the tasks associated with fulltime employment within two weeks of her return to work.
And,
during those initial two weeks, Gallagher’s physician merely
stated she should be allowed to pace herself and work from home,
if she felt it necessary.
While she claims Gamble placed heavy
(if not unreasonable) demands upon her during those two weeks,
Gallagher testified that she simply accepted the assignments and
returned to work, without further comment.
28
Gallagher Deposition
at 82.
There was no indication that she required any type of
ongoing accommodation of some disability, nor did she ever
request one.
Nor, did she ever link her requests for a lighter
workload to an inability to perform her job due to her alleged
disability or what she claims was a lengthy recovery period
following her surgery in 2011.4
Gallagher’s claim that Unitil failed to properly accommodate
her disability under the ADA is without merit.
So too is her
claim that Unitil was obligated (but failed) to engage in some
interactive process with her in an effort to find appropriate
accommodations.
As the court of appeals has noted, to
demonstrate that an employer failed to provide a reasonable
accommodation, “the employee must prove that the request was
4
Gallagher’s legal arguments are simply inconsistent
with the record evidence. For example, as noted above, she
testified that, during the two-week period immediately following
her return to work (when her doctor recommended that she be
permitted, at her option, to work from home), she “approached
[Gamble] on a few occasions [and said] that I was ready to call
it quits for the day. She started giving me a list of things
that had not yet been accomplished.” In response, Gallagher said
she simply, “didn’t try to leave.” Gallagher deposition at 82.
According to her counsel, that brief interaction between
Gallagher and her supervisor - in which Gallagher did not push
back, ask if the tasks could be completed either from home or the
following day, or request that they be assigned to someone else “constitutes a denial of her accommodation,” since Gallagher was
“exceeding her doctor mandated work hours, which were both an
accommodation and intermittent leave [under the FMLA].”
Plaintiff’s memorandum at 6. That argument misconstrues the
facts of record, and the legal conclusions Gallagher draws from
her misunderstanding of the material facts are incorrect.
29
sufficiently direct and specific so as to put the employer on
notice of the need for an accommodation.”
Enica v. Principi, 544
F.3d 328, 338 (1st Cir. 2008) (citations omitted).
Only after
giving an employer notice of the need for an accommodation, “in
some cases,” such a request “may trigger a duty on the part of
the employer to engage in an interactive process.”
Id.
See also
E.E.O.C. v. Kohl's Dep’t Stores, Inc., 774 F.3d 127, 132 n.5 (1st
Cir. 2014) (“This court does not regard an employer’s
participation in the interactive process as an absolute
requirement under the ADA.
Instead, we have held that we resolve
the issue on a case-by-case basis.”) (citation and internal
punctuation omitted).
Here, however, Gallagher made no such “direct and specific”
request for accommodation, nor can Unitil be charged with knowing
that she needed an accommodation for her alleged disability.
Consequently, her failure-to-accommodate claim under the ADA
fails as a matter of law.
C.
Interference Rights under the FMLA.
Next, Gallagher asserts that Unitil violated the FMLA when
it “did not provide her with proper FMLA paperwork and did not
provide her with intermittent or part-time leave that her health
care provider requested under the FMLA.”
30
Plaintiff’s memorandum
(document no. 21-1) at 24.
See also Plaintiff’s Sur-reply
(document no. 23) at 4 (“Gallagher has always claimed that she
was not given the reduced hours which her doctor’s note required,
and that subsequent to February 12th her verbal requests [for
leave under the FMLA] both went unheeded, and Defendant never
provided the required forms.”).
An employee is generally entitled under the FMLA to take up
to 12 weeks of leave “because of a serious health condition that
makes the employee unable to perform the functions of the
position of such employee.”
29 U.S.C. § 2612(a)(1)(D).
An
employer may not interfere with, restrain, or deny the exercise
by employees of the rights conferred by the FMLA, and may not
discriminate against an employee for having exercised those
rights.
29 U.S.C. § 2615(a)(1) and (2); see generally Hodgens v.
General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998).
“Nor may employers ‘use the taking of FMLA leave as a negative
factor in employment actions, such as hiring, promotions or
disciplinary actions.”
Hodgens, 144 F.3d at 160 (quoting 29
C.F.R. § 825.220(c)).
Here, Gallagher asserts that her FMLA claim is one based
upon Unitil’s “interference with her FMLA rights.”
Sur-reply at 4.
Plaintiff’s
Section 2615 of Title 29 of the United States
31
Code, which is entitled “Prohibited Acts,” provides, in relevant
part, as follows:
(a) Interference with Rights
(1) Exercise of rights
It shall be unlawful for any employer to
interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right
provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to
discharge or in any other manner discriminate
against any individual for opposing any practice
made unlawful by this subchapter.
29 U.S.C. § 2615(a).
Gallagher appears to claim that Unitil
violated that statute in two ways: first, by denying her request
for “intermittent leave” by failing “to provide further forms
when she asked for reduced hours in January through March 2012,”
Plaintiff’s Reply Memorandum at 4; and, second, by failing “to
notify her that her leave was designated as FMLA leave time,” Id.
Ultimately, however, to prevail on her claim that Unitil
unlawfully interfered with her FMLA rights, Gallagher must
demonstrate that: (1) she was eligible for the FMLA's
protections; (2) Unitil was covered by the FMLA; (3) she was
entitled to leave under the FMLA; (4) she gave Unitil notice of
her intention to take leave; and (5) Unitil denied her FMLA
32
benefits to which she was entitled.
See, e.g., Carrero Ojeda v.
Autoridad de Energia Electrica, 755 F.3d 711, 722 n.8 (1st Cir.
2014).
Largely for the reasons discussed above, Gallagher cannot
point to sufficient evidence in the record to warrant the
conclusion that Unitil violated any of her rights under the FMLA.
In support of her FMLA claim, Gallagher says she was not
given the reduced hours that her doctor’s note required and her
requests for FMLA leave were ignored.
Memorandum at 4.
Plaintiff’s Sur-reply
But, as noted above, the letter from her
treating physician did not “require” reduced hours.
Instead, it
provided that, for two weeks after Gallagher’s return to work,
Unitil should allow her to work a reduced schedule, if Gallagher
felt it necessary.
Letter from Anne Shapter, M.D., dated January
24, 2012 (document no. 18-12) (“She is cleared to return to work,
but may work part-time from home at her discretion, for the next
two weeks.”).
Plainly, during that two week period, the onus was
on Gallagher to inform Unitil if, consistent with her doctor’s
recommendation, she believed she needed to work fewer hours,
either at work or from home.
She did nothing of the sort.
The
only evidence on that point she identifies is the conversation
she claims to have had with Gamble, in which she said she planned
to go home for the evening, Gamble responded by identifying work
that had yet to be completed, and Gallagher simply returned to
33
her desk.
See Gallagher Deposition at 82.
No matter how
generously one views the record evidence, that interaction cannot
plausibly be viewed as an invocation of her rights under the
FMLA.
And, for the same reasons that Unitil cannot be charged with
knowledge that Gallagher required some sort of accommodation
under the ADA, it cannot be charged with knowledge that she
required additional leave under the FMLA.
asked for such leave.
Again, Gallagher never
Instead, she suggests that Unitil should
have inferred that she needed FMLA leave.
For the reasons
discussed above, the court disagrees.
Finally, Gallagher makes much of the alleged confusion over
the forms that Unitil provided to her when she formally notified
it of her need to take time away from work for her abdominal
surgery.
See, e.g., Plaintiff’s Memorandum at 24-25 (“Unitil
interfered with [Gallagher’s] ability to meaningfully exercise
her rights when it failed to properly designate her leave and
notify her of her rights, and by making a botched request for a
workers’ compensation blanket release to secure her complete
medical record, rather than only the medical information it was
entitled to if it had a question about her condition.”).
In
support of her view that Unitil’s conduct violated the law,
34
Gallagher points to 29 C.F.R. § 825.300, which describes the
notice employers must provide to employees about their FMLA
rights, as well as employers’ obligation to notify employees
whether “leave will be designated and will be counted as FMLA
leave.”
But, as Gallagher herself acknowledges, to prevail on her
“interference” claim, she must demonstrate that “she provided
sufficient notice of her intent to take leave and her employer
denied her FMLA benefits to which she was entitled.”
Plaintiff’s
memorandum at 24 (citing Pagel v. TIN, Inc., 695 F.3d 622, 627
(7th Cir. 2012)).
That, she cannot do.
For example, in her
deposition, Gallagher admitted that she received all FMLA leave
she requested.
See Gallagher Deposition at 74.
She also admits
receiving written information from Unitil describing its
policies, as well as her rights, under the FMLA.
See Unitil
System Policy - Family and Medical Leave (document no. 21-9).
That document notified Gallagher of her right to receive up to 12
weeks of leave, the conditions under which such leave was
available, and the fact that such leave “may be taken in a single
block of time, or spread out over several days or weeks within a
12 month period.”
Id. at 2.
It also specifically informed her
of the right to take an “intermittent or reduced leave schedule.”
Id. at 4.
Parenthetically, the court notes that Unitil’s policy
35
also provided that, whenever possible, an employee shall submit a
request for FMLA leave in writing, to his or her supervisor something Gallagher plainly did not do.
There is no dispute that Unitil sent Gallagher a package of
materials informing her of her rights under the FMLA and the
details of Unitil’s FMLA leave policy.
Gallagher apparently
takes issue with the fact that the package also included what
Gallagher says was a “worker’s comp medical release.”
Unitil’s
human resources person testified that she routinely sent such
releases, as part of the FMLA packet, saying “it’s a release to
obtain a second opinion, if needed.”
Rummler (document no. 21-6) at 46.
Deposition of Kimberlee
That would appear to be
consistent with Unitil’s FMLA policy, which provides that, in
some circumstances, Unitil may seek a second medical opinion (at
company expense).
See System Policy - Family and Medical Leave,
at 5 (“If the FMLA leave is for the employee’s own Serious Health
condition or to care for a [family member], the company may
require a second medical opinion and periodic certification at
its own expense.”).
In a related claim, Gallagher suggests that Unitil violated
the FMLA by failing to properly account for her leave time and/or
neglecting to inform her that such time was being treated as
36
leave under the FMLA.
But, the paperwork included in the package
sent to Gallagher was provided in order to meet Unitil’s
obligations under the FMLA and its implementing regulations.
See, e.g., 29 C.F.R. § 825.301 (“Designation of FMLA Leave”).
See also Unitil System Policy - Family and Medical Leave, at 923.
But, as Gallagher acknowledges, she “declined to complete
the paperwork” because she believed some of the documents had
been sent to her in error.
Defendant’s memorandum at 16 (quoting
plaintiff’s response to interrogatories).
deposition at 73.
See also Gallagher
Nevertheless, Unitil still afforded her the
requested FMLA leave time and, importantly, Gallagher
acknowledged receiving all FMLA leave that she sought.
74.
Id. at
It is, therefore, difficult to understand precisely how
Gallagher believes (or, perhaps more accurately, how she might
prove) that she was harmed.
Little more need be said.
Gallagher’s FMLA claim - in all
its iterations - lacks factual support in the record.
Unitil is,
therefore, entitled to summary judgment.
II.
State Law Claim - N.H. Law Against Discrimination
Neither party disputes that the court may (and should)
exercise supplemental jurisdiction over Gallagher’s state law
claim under New Hampshire’s Law Against Discrimination, N.H. Rev.
37
Stat. Ann. (“RSA”) 354-A.
See generally 28 U.S.C. § 1367.
See
also Camelio v. American Fed’n, 137 F.3d 666, 672 (1st Cir.
1998).
As Gallagher acknowledges, her claim under RSA 354-A is
analyzed using the same legal framework as her ADA claim.
Plaintiff’s Memorandum at 14.
See
See also Andersen v. Dartmouth
Hitchcock Med. Ctr., 2015 WL 847447, at *7 (D.N.H. Feb. 26,
2015).
To satisfy one of the essential elements of that claim,
Gallagher must point to sufficient evidence in the record to
warrant the conclusion that “her employer took an adverse
employment action against her because of, in whole or in part,
her protected disability.”
Plaintiff’s Memorandum at 15 (citing
Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir.
2005)).
For the reasons stated above, a rational and properly
instructed jury reviewing the record evidence could not, as a
matter of law, conclude that Unitil discriminated against
Gallagher on the basis of her alleged disability, nor could it
conclude that Unitil fired (or constructively discharged)
Gallagher for any reason relating to that disability.
Consequently, as to Gallagher’s discrimination claim under RSA
354-A, Unitil is entitled to judgment as a matter of law.
38
Conclusion
Read in isolation, Gallagher’s complaint and her legal
memoranda paint a fairly compelling picture of an employee who
worked a grueling number of hours each week, provided thankless
dedication to her job, endured an exploitative supervisor, and
suffered the painful effects of unlawful workplace discrimination
- all culminating in her actual or constructive discharge.
Plainly, however, her legal claims against Unitil cannot be
analyzed in a vacuum and must find some measure of support in the
evidentiary record.
They do not.
For the foregoing reasons, as well as those set forth in
Unitil’s legal memoranda, Unitil is entitled to judgment as a
matter of law on all three claims advanced in Gallagher’s
complaint.
Its motion for summary judgment (document no. 18) is,
therefore, granted.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 17, 2015
cc:
Leslie H. Johnson, Esq.
Christopher J. Pyles, Esq.
39
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