Deighan v. Supermedia, LLC et al

Filing 38

MEMORANDUM AND ORDER granting 25 Motion for Summary Judgment; finding as moot 31 Motion to Strike ; finding as moot 33 Motion to Strike. So Ordered by Chief Judge William E. Smith on 11/29/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
SUPERMEDIA LLC; and
)
TODD SANISLOW,
)
)
Defendants.
)
___________________________________)
DAVID DEIGHAN,

C.A. No. 14-264 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
In this case the Plaintiff, David Deighan, claims that his
employer,

SuperMedia,

and

his

supervisor,

Todd

Sanislow,

discriminated against him because of his disability. His claims
fall into two categories, the first dealing with his request for
leave

and

employment.

the

second

Discovery

with
is

the

ultimate

complete.

termination

Defendants

of

his

SuperMedia

and

Sanislow now move for summary judgment claiming that there are
no disputed issues of material fact that require a trial and
that Deighan’s claims fail as a matter of law.1

1

Before the Court is Defendants’ Motion for Summary
Judgment (ECF No. 25), as well as Defendants’ motion to strike
several of Plaintiff’s factual assertions and to admit several
of Defendants’ factual assertions (ECF No. 31). Plaintiff has
filed objections to both motions (ECF No. 27; ECF No. 32) and
has moved to strike several of Defendants’ factual assertions
(ECF No. 33).

For the reasons set forth below, Defendants’ Motion for
Summary
other

Judgment

motions

is

GRANTED.

need

not

be

As

Defendants’

decided

in

order

and
to

Plaintiff’s
rule

on

the

summary judgment issue, those motions are moot.
I.

Background

The factual backdrop to the Defendants’ motion is fairly
straightforward and the essential facts are undisputed. In 2012,
Plaintiff
SuperMedia

David

Deighan

working

was

under

a

the

sales

manager

supervision

of

at

Defendant

Defendant

Todd

Sanislow. In May of 2012, Deighan suffered from “acute anxiety
disorder”

and

commenced

medical

leave

from

his

position

at

SuperMedia. SuperMedia agreed to allow Deighan to take approved
leave under the FMLA (for 12 weeks) and RIPFMLA (for 13 weeks),
which ran concurrently. On August 13, 2012, near the conclusion
of Deighan’s statutory leave, Deighan notified SuperMedia that
“[d]ue to my disability and recommendation from my doctors, I am
not

able

to

hold

a

sales

or

sales

management

position.

Additionally, it is required that I not drive long distances. My
current commute is 150 miles . . . .” (Defs.’ Mot. Ex. B, ECF
No. 25-3.) Deighan went on to request that SuperMedia give him a
new position that was (1) “in the customer service and sales
support

arenas”;

(2)

“at

an

equivalent

title

and

income

I

currently hold”; and (3) located at SuperMedia’s facility in
2

Middleton, Massachusetts (which was located close to Deighan’s
house). (Id.)
The

next

day,

Deighan

submitted

a

“Job

Accommodation

Request” form to SuperMedia. (Id.) In that form, Deighan stated
that

his

attached

previous
a

copy

of

email

“summarize[d]

that

letter.

(Id.)

[his]

requests”

Additionally,

and

Deighan

stated that, “[p]er medical advice, the nature of the direct
sales or sales management role caused and would exacerbate [his]
medical condition.” (Id.) Given his inability to work in his
prior

sales

management

role,

Deighan

requested

a

“permanent

accommodation.” (Id.)
SuperMedia agreed to extend Deighan’s short-term disability
leave from August through November 16, 2012 and began looking
for another position that Deighan could fill outside of sales
management. In September, SuperMedia notified Deighan that there
were

no

other

openings

with

the

same

title

and

income

as

Deighan’s previous sales management position. (Defs.’ Mot. Ex.
C, ECF No. 25-3.) In response, despite the fact that Deighan had
previously

told

SuperMedia

that

he

was

medically

unable

to

perform the job, Deighan requested that he be able to return to
the sales management position at the conclusion of his shortterm disability leave on November 16, 2012. (Defs.’ Mot. Ex. E,
ECF No. 25-3.)
3

SuperMedia

agreed

to

allow

Deighan

to

return

to

that

position under two conditions. (Id.) First, SuperMedia notified
Deighan that there was a “business need” to permanently fill the
sales manager position, such that, if Deighan did not return on
November 16, SuperMedia would backfill the position with someone
else. (Defs.’ Mot. Exs. D and F, ECF No. 25-3.) Second, because
Deighan had repeatedly stated that he was medically unable to
work as a sales manager, SuperMedia told Deighan that he would
have to provide a “doctor’s note” stating that he could safely
return

to

responded

work.
by

(Defs.’

Mot.

reaffirming

his

Ex.

E,

intent

ECF
to

No.

25-3.)

return

to

Deighan
work

on

November 16 and agreed to provide some sort of doctor’s note
clearing him to work. (Id.)
Then, on November 14, Deighan sent the following email to
Sanislow and SuperMedia’s human resources department:
Due to my current medical condition, my doctors will
not approve a RTW [return to work] date of November
16, 2012. With continued treatment, they are hopeful
for a RTW date of early Jan[uary] 2013. Thank you for
your continued flexibility.
(Pl.’s

Resp.

Ex.

B,

ECF

No.

27-2.)

SuperMedia

responded

follows:
Thank
you
for
your
accommodation
request.
Unfortunately, we are unable to accommodate you with
additional time off. We look forward to seeing you on
November 16, 2012 . . . . If you are unable to return
to work on November 16, 2012, either with or without
4

as

an accommodation, SuperMedia may fill or eliminate
your position due to business needs. If your position
is backfilled or eliminated and you are later released
to return to work, you are encouraged to reapply for
available job openings. . . .
(Id.)
Deighan

initially

responded

to

SuperMedia’s

email

by

sending a farewell note to his former colleagues. (Defs.’ Mot.
Ex.

G,

ECF

No.

25-3.)

However,

sometime

thereafter,

Deighan

resumed contact with SuperMedia in order to request that he be
able to return to work in January of 2013. (Defs.’ Mot. Ex. I,
ECF No. 25-3.) SuperMedia declined to keep the position open
through

January

employee.

(Id.)

and

backfilled

SuperMedia

the

contends

position
that

these

with

another

actions

were

taken because there was a business need to permanently fill the
sales management position after over six months (May through
November of 2012) of that position being filled on a temporary
basis. (See Sanislow Decl., ECF No. 25-4.)
Deighan subsequently filed the instant suit against both
SuperMedia
Complaint
Rhode

and

his

alleges

Island

disability-based

Civil

Rights

(“CRPD”),

the

Rhode

(“FEPA”),

and

the

(“RICRA”).

supervisor,

of

Island

Rhode

Additionally,

Todd

discrimination

People
Fair

Island
Deighan’s
5

Sanislow.

with

under

the

Disabilities

Act

Employment
Civil

Rights

Complaint

Deighan’s

Practices
Act

alleges

of

Act
1990

unlawful

disability-based retaliation and interference under the Family
and Medical Leave Act (“FMLA”) and the Rhode Island Parental and
Family Medical Leave Act (“RIPFMLA”).
II.

Discussion
A. Summary Judgment Standard
Summary

judgment

is

appropriate

where

the

Court

finds,

“after studying the parties’ evidentiary proffers and giving the
benefit of reasonable doubt to those against whom the motion is
directed, that there is no genuine issue of material fact in
dispute and that the motion’s proponent is entitled to judgment
as a matter of law.” Stella v. Town of Tewksbury, Mass., 4 F.3d
53, 55 (1st Cir. 1993) (citing Fed. R. Civ. P. 56). There can be
no genuine issue of material fact where a party “fails to make a
showing

sufficient

to

establish

the

existence

of

an

element

essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). Put another way, the evidence must be
“such that a reasonable jury could return a verdict for the
nonmoving party.” Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988) (internal quotations omitted).
In

determining

whether

there

exists

a

genuine

issue

of

material fact, this Court must review the facts “in the light
most

favorable

to

the

party

opposing
6

the

motion,

and

must

indulge all inferences favorable to that party . . . .” Id.
However, “[t]he party opposing the motion . . . may not rest
upon mere allegations.” Id. Instead, the opposing party must
supply specific facts, “citing to particular parts of materials
in the record, including depositions, documents, electronically
stored

information,

(including

those

affidavits

made

for

or

declarations,

purposes

of

the

stipulations

motion

only),

admissions, interrogatory answers, or other materials.” Fed. R.
Civ.

P.

56(c)(1)(A).

Furthermore,

all

affidavits

and

declarations “must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4).
B. FMLA and RIPFMLA Claims
Deighan alleges that SuperMedia and Sanislow violated both
the

FMLA

and

the

RIPFMLA.

The

FMLA

entitles

an

“eligible

employee” to 12 weeks of leave during any 12-month period for a
“serious health condition” and, on return from such leave, to be
restored

to

the

2612(a)(1)(D),

same

or

equivalent

2614(a)(1)(A)-(B).

position.
The

29

RIPFMLA

U.S.C.

§§

provides

substantially the same statutory protections as the FMLA, but
instead of 12 weeks of leave for an employee’s “serious health
condition,” it provides for 13 weeks of leave for “parental and
7

family leave.” R.I. Gen. Laws § 28–48–2. Courts have used the
same analysis when reviewing claims under

both the FMLA and

RIPFMLA. See, e.g., Kenney v. Bethany Home of Rhode Island, No.
09-CV-289-ML, 2011 WL 1770537, at *2 n.3 (D.R.I. May 9, 2011)
(“[T]he analysis of the elements of the RIPFMLA and the FMLA
claims is the same, and, to the extent the state statute is not
preempted, the Court’s review of the federal claims addresses
the state statute as well.”); Tardie v. Rehab. Hosp. of Rhode
Island, 6 F. Supp. 2d 125, 134 (D.R.I. 1998), aff’d, 168 F.3d
538 (1st Cir. 1999). This Court therefore analyzes Deighan’s
FMLA and RIPFMLA claims together.
Causes
divided

of

into

retaliation

action
“two

claims.”

under

distinct
Kenney,

both

the

groups:
2011

WL

FMLA

and

interference
1770537,

at

RIPFMLA

are

claims

and

*2

(citing

Hodgens v. General Dynmaics Corp., 144 F.3d 151, 159–60 (1st
Cir. 1998)). Deighan asserts both, and each is addressed below.2

2

As a threshold matter, Defendants argue that, unlike the
FMLA, the RIPFMLA protects only “parental and family leave,”
R.I. Gen. Laws. § 28–48–2, not leave for a personal health
condition. The statutory language is quite clear on this issue:
RIPFMLA provides for “family leave” and defines “family member”
as “a parent, spouse, child, mother-in-law, father-in-law, or
the employee himself or herself . . . .” R.I. Gen. Laws. § 28–
48–1(5) (emphasis added); see also Tardie v. Rehab. Hosp. of
Rhode Island, 6 F. Supp. 2d 125 (D.R.I. 1998), aff’d, 168 F.3d
538 (1st Cir. 1999) (acknowledging that employee with stressrelated heart problems could bring action against employer under
RIPFMLA). However, because the Court grants Defendants’ summary
8

1.

Interference Claims

Under an “interference” theory, Deighan bears the burden of
showing that he was denied substantive rights to which he was
entitled

under

the

FMLA

or

RIPFMLA.

Colburn

v.

Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 331-33 (1st Cir.
2005); Surprise v. Innovation Group, Inc., 925 F. Supp. 2d 134,
145

(D.

Mass.

2013).

There

is

no

dispute

that

Deighan

was

provided the entire leave period to which he was entitled under
the FMLA (12 weeks) and RIPFMLA (13 weeks). (Mem. Of Law in
Support

of

Pl.’s

Objection

24,

ECF

No.

27-1.)

Additionally,

there is no dispute that Deighan, at the conclusion of that
leave period in August of 2013, was offered his job back. (Id.)
Nonetheless,
with

his

Deighan

rights

under

alleges
the

FMLA

that
and

SuperMedia
RIPFMLA

interfered

because

two

SuperMedia employees (Carl Mitchell and Todd Sanislow) continued
to communicate with Deighan while he was on leave. (Id.) These
communications included several emails, phone calls, and text
messages.

For

the

proposition

that

communications

from

an

employer to an employee on medical leave may alone provide the
basis for an “interference” claim, Plaintiff cites a case out of

judgment motion on
argument in detail.

other

grounds,
9

it

need

not

address

this

the Western District of Texas. (See id. at 24-25 (citing Benitez
v. Int’l Paper Co., No. EP-06-CA-383-DB, 2007 WL 4436874, at *5
(W.D. Tex. Dec. 19, 2007).)
The

Benitez

case

involved

a

plaintiff

who,

while

on

authorized leave under the FMLA, was allegedly contacted several
times

by

his

employer

regarding

“a

work

related

matter.”

Benitez, 2007 WL 4436874, at *5. Plaintiff sued his employer for
interference and the employer moved for summary judgment. While
not disputing that the contact had occurred, the employer argued
“that it had Plaintiff’s verbal permission to contact him while
he

was

summary

on

leave.”

Id.

judgment,

plaintiff’s

In

the

permission

deciding
court

would

the

company’s

tacitly

nullify

motion

acknowledged

an

interference

for
that

claim.

However, the court denied the company’s summary judgment motion
because,
summary

“[u]nfortunately,
judgment

evidence

the

record

that

is

devoid

[defendant]

had

of

competent

Plaintiff’s

authorization to interfere with his FMLA leave.” Id.
Assuming
correct,

for

that

mere

the

moment

that

communication

the

with

Court
an

in

Benitez

employee

on

is

leave

constitutes “interference,” Deighan’s claim cannot prevail under
that

standard.

While

the

employer

in

Benitez

provided

no

evidence that it had permission to contact its employee, such
evidence is present here. Carl Mitchell admitted to texting and
10

emailing

with

undisputed

Deighan

evidence

during

shows

that

his
it

leave
was

period,

Deighan

but

who

the

initially

reached out to Mitchell, which then led to several subsequent
communications. (Pl.’s Obj. Ex. L; Mitchell Depo. 48:15-17, ECF
No.

27-2.)

Deighan

cannot

now

claim

interference

based

on

communications that he initiated, especially given that Deighan
has provided no evidence that he, after initiating contact with
Mitchell, ever asked Mitchell to cease communicating with him.
As

to

Todd

Sanislow,

Deighan

provided

evidence

that

an

email conversation occurred between them during Deighan’s leave
period.

Once again, however, the evidence

shows

that it was

Deighan who initiated the communication. The first email from
Sanislow

provided

by

Deighan

begins

with

Sanislow

saying,

“[n]ice to hear from you David, I hope you’re doing better. I
miss you. . . . My best to you and your family for the 4th.”
(Pl.’s Obj. Ex. M, ECF No. 27-2.) This is not an initiation of
contact on a work-related matter (as was the case in Benitez),
but rather a seemingly friendly response regarding a personal
matter.
response

Deighan
was

has

somehow

provided
an

no

uninvited

evidence

that

communication;

Sanislow’s
in

fact,

Deighan’s reply to Sanislow’s email suggests just the opposite
when Deighan responds: “Miss you more . . . can’t wait to get
back to normal . . . thinking my heart and brain can’t handle
11

the stress of the DM job . . . please let me know if you hear of
opportunities?”

Id.

To

the

extent

the

exchange

touched

upon

work, it was Deighan who initiated the dialogue and requested
that

Sanislow

continue

contacting

Deighan

going

forward

to

discuss other job opportunities at SuperMedia. (Id.)
Neither the plain language of the FMLA and RIPFMLA nor any
case law cited by the parties stands for the proposition that a
company’s employees are strictly prohibited from communicating
with

another

employee

on

RIPFMLA. While a situation

medical
may

leave

under

the

FMLA

or

arise in which an employer’s

unwanted communications about work-related matters provide the
basis

for

an

interference

claim,

Deighan

has

provided

no

evidence that this is such a case. The undisputed evidence on
the record shows that the communications between Deighan and
both Mitchell and Sanislow were reciprocal and initiated in the
first instance by Deighan. Furthermore, Deighan does not even
assert,

let

alone

provide

evidence

suggesting,

that

he

ever

requested that these communications cease. In the absence of any
evidence tending to show that Deighan either (1) did not in fact
initiate these communications, or (2) at some point sought to
discontinue

the

communications

judgment is appropriate.

12

that

he

initiated,

summary

2.

Retaliation Claim

To bring a successful retaliation claim under the FMLA and
RIPFMLA, Deighan must demonstrate “a causal connection between
[his]

protected

conduct

and

[an]

adverse

employment

action.”

Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711,
719 (1st Cir. 2014); Pagan-Colon v. Walgreens of San Patricio,
Inc., 697 F.3d 1, 8 (1st Cir. 2012) (“[A] crucial component of
an

FMLA

retaliation

claim

is

some

[evidence

of]

animus

or

retaliatory motive on the part of the plaintiff’s employer that
is connected to protected conduct.”). The existence of a causal
connection is determined by employing the common burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The First Circuit has described this framework
as follows:
McDonnell Douglas allocates the burdens of production
and persuasion in accordance with a three-step
procedure. Under that framework, a plaintiff employee
must carry the initial burden of coming forward with
sufficient evidence to establish a prima facie case of
discrimination or retaliation. If he does so, then the
burden shifts to the employer to articulate some
legitimate,
nondiscriminatory
reason
for
the
employee’s termination, sufficient to raise a genuine
issue of fact as to whether it discriminated against
the employee. The employer must clearly set forth,
through the introduction of admissible evidence, the
reasons
for
the
employee’s
termination.
The
explanation provided must be legally sufficient to
justify a judgment for the employer. If the employer’s
evidence creates a genuine issue of fact, the
presumption of discrimination drops from the case, and
13

the plaintiff retains the ultimate burden of showing
that the employer’s stated reason for terminating him
was in fact a pretext for retaliating against him for
having taken protected FMLA leave.
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160–61 (1st Cir.
1998) (internal citations, quotations, and brackets omitted).
To establish a prima facie case of retaliation (the first
step of the McDonnell Douglas framework) Deighan must provide
evidence to show that “(1) he availed himself of a protected
right

under

employment
between

the

FMLA;

decision;

the

(2)

[and]

employee’s

he

was

(3)

adversely

there

protected

is

a

activity

affected

causal
and

by

an

connection

the

employer’s

adverse employment action.” Id. at 161. Deighan arguably fails
at

this

availed

first

step.

himself

of

While
a

there

protected

is

no

right

dispute
(i.e.,

that

Deighan

taking

medical

leave) and was subsequently subject to an adverse employment
action

(i.e.,

SuperMedia

backfilled

his

position),

Deighan

provides no evidence to connect the two events or support his
assertion

that

SuperMedia

backfilled

his

position

because

he

previously took FMLA and RIPFMLA leave.
There is no dispute that, at the conclusion of Deighan’s
FMLA

and

RIPFMLA

medical

leave

period

in

August

of

2012,

SuperMedia allowed Deighan to return to work at his previous
position.

(Pl.’s

Obj.

24,

ECF
14

No.

27-1.)

There

is

also

no

dispute that, when Deighan notified SuperMedia that he was still
medically

unable

to

work

at

the

conclusion

of

his

FMLA

and

RIPFMLA leave, SuperMedia went beyond the statutory requirements
by agreeing to (1) provide Deighan with three additional months
of short-term medical leave through November 16; and (2) allow
Deighan to return to his previous position in sales management
at

the

conclusion

of

that

medical

leave

period.

At

the

conclusion of that additional leave period, Deighan was again
provided

the

opportunity

to

return

to

his

previous

sales

management position, but was still medically unable to do so. It
was only after Deighan was again unable to return to work (a
full three months after the conclusion of his FMLA and RIPFMLA
leave)

that

SuperMedia

began

the

process

of

backfilling

his

position.
Deighan
between

his

backfilling

responds

by

taking

FMLA

his

position

arguing
and
is

that

RIPFMLA

alone

the

temporal

leave

sufficient

and
to

proximity
SuperMedia

establish

a

prima facie case of retaliation. (Id. at 26.) Some cases have
held that “very close” temporal proximity between an employee’s
taking of leave and an adverse employment action is sufficient
to establish a prima facie case for discrimination. See, e.g.,
Clark County School District v. Breeden, 532 U.S. 268, 273-74
(2001); Calero-Cerezo v. United States Dep’t of Justice, 355
15

F.3d 6, 26 (1st Cir. 2004). While it is true that the burden of
establishing a prima facie case is supposed to be “quite easy to
meet,” Hodgens, 144 F.3d at 165 (quoting Villanueva v. Wellesley
College, 930 F.2d 124, 127 (1st Cir. 1991)), the cases require a
showing of some connection between the taking of the leave and
the adverse employment action, and here the Plaintiff has failed
to make that connection.
But
facie

even

case,

McDonnell

assuming

Douglas

provided

a

Deighan

claim

Deighan’s

that

still

framework

“legitimate,

looks

has

established

fails.
to

Step

whether

nondiscriminatory

a

two

prima

of

the

SuperMedia

has

reason”

for

backfilling Deighan’s position. Id. at 160–61. SuperMedia has
met this burden. Both during Deighan’s medical leave period and
at all points during the present litigation, SuperMedia has made
clear that there was a “business need” to fill Deighan’s sales
manager position on a permanent basis. (Defs.’ Mot. Exs. D, F,
ECF No. 25-3; Sanislow Decl., ECF No. 25-4.) As SuperMedia has
explained,

Deighan’s

responsible

for

“division

many

sales

important

tasks

manager”
within

position
the

was

company,

including the supervision of other “district sales managers.”
(Sanislow Decl. ¶¶ 4-5, ECF No. 25-4.) SuperMedia was able to
fill this position on a temporary basis through November 16 (the
last

day

of

Deighan’s

short-term
16

disability

period,

as

an

accommodation

to

Deighan),

but

made

it

clear

that

using

a

temporary employee was not an effective long-term solution. (Id.
at ¶¶ 27-28; see also Pl.’s Obj. Ex. A, Deighan Depo. 193:3-11,
ECF No. 25-3.) Therefore, when Deighan notified SuperMedia that
he would not be returning on November 16 because of continued
mental

health

filling

issues,

Deighan’s

SuperMedia

position

began

the

permanently,

process

again

of

back-

explaining

its

business need to do so. (Pl.’s Obj. Ex. B; ECF No. 27-2.)
SuperMedia
competent

has

evidence

met

its

which,

burden

if

taken

of
as

“produc[ing]

true,

would

enough

permit

a

rational factfinder to conclude that the challenged employment
action was taken for a legitimate, nondiscriminatory reason.”
Hodgens,

144

F.3d

at

166

(internal

citations

omitted).

The

burden therefore shifts back to Deighan – under step three of
the McDonnell Douglas framework - to “demonstrate that there is
a trialworthy issue of pretext.” Id. at 167; Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000)
(“The employer's burden is merely a burden of production; the
employee

maintains

the

employer

meets

burden,

evaporates.”)

its

(internal

burden

of

the

proof

throughout.

presumption

citations

of

omitted).

If

the

discrimination
Deighan

must

therefore point to “specific facts” that SuperMedia’s proffered
business

need

was

actually

a

pretext
17

masking

a

“retaliatory

motive” related to his taking of FMLA and RIPFMLA leave the
prior summer. See, e.g., Calero-Cerezo, 355 F.3d at 26 (after
noting that temporal proximity was sufficient to establish a
prima

facie

case,

the

Court

affirmed

summary

judgment

for

defendant because plaintiff “failed to point to specific facts
that would demonstrate any sham or pretext intended to cover up
defendants’ retaliatory motive”); Rodriguez-Cuervos v. Wal-Mart
Stores, Inc., 181 F.3d 15, 20 (1st Cir. 1999).
Deighan points only to a single piece of evidence (beyond
temporal proximity) to establish his discrimination claim: the
Declaration of Michael A. Green. (Pl’s Obj. 26, ECF No. 27-1
(citing Pl.’s Obj. Ex. J, Green Decl., ECF. No. 27-2.)) Like
Deighan, Green was a SuperMedia employee who worked under the
supervision of Sanislow. (Pl.’s Resp. Ex. J, Green Decl. ¶ 7,
ECF. No. 27-2.) In 2000, Green suffered from depression and took
FMLA leave for approximately four months. (Id. at ¶ 9.) Green
alleges that, upon returning to work, Todd Sanislow retaliated
against Green as follows:
16. After I returned from
Sanislow made comments to
condition.

my medical leave, Mr.
me about my medical

17. On at least a few occasions, Mr. Sanislow made
remarks to me about my depression, including a joke
about me riding my lawn mower up the street and not
knowing where I was.
18

(Id. at ¶¶ 16-17.)
In 2006, Green again took FMLA leave because of a knee
injury. (Id. at ¶ 18.) According to Green, in the aftermath of
both of his FMLA leave periods, Sanislow held a grudge against
Green. As proof of this accusation, Green alleges that, in 2011
(over ten years after Green took FMLA leave for depression),
Sanislow

“wrongfully

accused

[Green]

of

being

dishonest

and

[Green’s] work performance was unfairly questioned.” (Id. at ¶
29.)

Green

also

claims

performance

improvement

transferred

him

to

that
plan

another

Sanislow
for

a

location,

placed

few

him

months”

and

“on

a

in

2012,

instructed

other

employees to treat him poorly, all in an effort to force Green
to leave his job. (Id. at ¶¶ 30-40.)
Deighan
evidences

argues

Sanislow’s

that

Sanislow’s

discriminatory

conduct

attitude

toward

toward

Green

employees

with disabilities and is sufficient to demonstrate pretext in
Deighan’s case. Even assuming that everything Green asserts is
true, this does not come close to meeting the Plaintiff’s burden
of establishing a possibility of pretext. “Anecdotes about other
employees cannot establish that discrimination was a company’s
standard

operating

procedure

unless

those

employees

are

similarly situated to the plaintiff.” Carmona Rios v. Aramark
Corp., 139 F. Supp. 2d 210, 216 (D.P.R. 2001) (quoting Wyvill v.
19

United Companies Life Ins. Co., 212 F.3d 296, 302 (5th Cir.
2000)). For employees to be considered “similarly situated” they
must “have been subject to the same standards and have engaged
in the same conduct without such differentiating or mitigating
circumstances
employer’s

that

would

treatment

of

distinguish
them

for

their

it.”

conduct

or

their

Rodriguez–Cuervos,

181

F.3d at 21.
Even assuming Green’s experience constitutes
discrimination,

the

conduct

alleged

is

simply

evidence of

too

dissimilar

from Deighan’s experience to “establish that discrimination was
[the] company’s standard operating procedure.” Carmona Rios, 139
F. Supp. 2d at 216 (quoting Wyvill, 212 F.3d at 302). In the
first place, Green suffered from two illnesses (both of which
were

different

separate

FMLA

than
leave

Deighan’s
periods

illness)
during

a

which

required

five-year

two

timeframe

(compared to Deighan’s one FMLA leave period that occurred over
a

single

different

summer).
treatment

Moreover,
than

Green

Deighan.

was

subject

While

Green

to
was

completely
allegedly

treated poorly in the workplace immediately after returning from
leave (and then again almost ten years later), Deighan does not
claim to have been the subject of any adverse treatment in the
workplace. Instead, Deighan’s position

was backfilled several

months after his FMLA and RIPFMLA leave had concluded while he
20

was still outside the workplace on medical leave. Given these
differences, the Green Declaration does not suffice to establish
a

triable

reason

for

issue

of

fact

terminating

as

to

[Deighan]

whether
was

SuperMedia’s

in

fact

a

“stated

pretext

for

retaliating against him for having taken protected FMLA leave.”
Hodgens, 144 F.3d at 161 (internal citations, quotations, and
brackets omitted).
The Court is aware of the need for “restraint in granting
summary judgment where discriminatory animus is in issue,” as
“[t]he role of the trial judge at the summary judgment stage is
not [] to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for
trial.” Id. at 167 (internal quotations omitted). However, the
First Circuit has made clear that – even where an employer’s
motive is at issue - summary judgment is appropriate if “the
non-moving
improbable

party

rests

inferences,

merely
and

upon

conclusory

unsupported

allegations,

speculation.”

Id.

(quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st
Cir. 1994)). This is precisely the sort of evidence Deighan has
provided.

In

the

proximity

between

context
Deighan’s

of

this

taking

case,
of

a

loose

temporal

FMLA

leave

and

his

position being backfilled, combined with the Green Declaration,
do not suffice to create a triable issue of fact as to whether
21

SuperMedia
“animus

or

terminated
retaliatory

Deighan’s
motive”

employment

because

related

Deighan’s

to

of

some
taking

leave. Pagan-Colon, 697 F.3d at 8; Hodgens, 144 F.3d at 169
(holding

that

insufficient

summary
evidence

judgment

is

for

fair-minded

“a

appropriate

if

jury”

there
to

is

find

retaliatory motive). Defendants’ Motion for Summary Judgment is
therefore granted as to Deighan’s discrimination claim.
C. CRPD, FEPA, and RICRA Claims
Plaintiff alleges unlawful disability-based discrimination
on the part of SuperMedia in violation of the CRPD, FEPA, and
RICRA. The CRPD provides that “no otherwise qualified person
with a disability shall, solely on the basis of disability, who
with reasonable accommodation and with no major cost can perform
the essential functions of the job in question, be subjected to
discrimination in employment . . . .” R.I. Gen. Laws § 42-87-2.
Similarly, the FEPA prohibits an employer from discriminating
against an employee on the basis of a “disability” or refusing
to “reasonably accommodate an employee's . . . disability unless
the employer can demonstrate that the accommodation would pose a
hardship on the employer’s program . . . .” R.I. Gen. Laws § 285-7(1). Lastly, the RICRA provides that “[a]ll persons within
the state, regardless of . . . disability . . . have, except as
is otherwise provided or permitted by law, the same rights to .
22

. . the full and equal benefit of all laws . . . .” R.I. Gen.
Laws § 42-112-1.
Deighan employs a single analytical framework in discussing
his CRPD, FEPA, and RICRA claims using case law addressing the
Americans with Disabilities Act. As Deighan notes, “[g]enerally,
Rhode Island courts look to federal case law construing the
Americans with Disabilities Act (“ADA”) in evaluating similar
state

statutory

claims.”

(Pl.’s

Obj.

4

n.1,

ECF

No.

27-2.)

Defendants also treat the CRPD, FEPA, and RICRA claims as having
an identical analytical framework derived from ADA case law.
(Defs.’ Mot. 5 n.3, ECF No. 25-1.) And, indeed, this Court has
done the same in previous cases:
Plaintiff’s disability discrimination claims . . . are
all filed in triplicate: under FEPA, RICRIHA, and
RICRA. Irrespective of which statutory horse he rides,
[plaintiff]
must
traverse
the
disability
discrimination
trail,
whose
contours
are
best
understood by reference to the analysis utilized in
the corresponding federal statute, the Americans with
Disabilities Act of 1990 (“ADA”). See Tardie v.
Rehabilitation Hosp. of Rhode Island,6 F. Supp. 2d
125, 132–33 (D.R.I. 1998) (if summary judgment is
granted as to the ADA claim, it should also be granted
as to FEPA and RICRIHA claims), aff’d, 168 F.3d 538
(1st Cir. 1999), (citing Hodgens v. General Dynamics
Corp., 963 F. Supp. 102, 104 (D.R.I. 1997) (all other
citations omitted)).
Kriegel v. State of Rhode Island, Dep’t of Corr., 266 F. Supp.
2d 288, 296 (D.R.I. 2003); see also Hatch v. Pitney Bowes, Inc.,
23

485 F. Supp. 2d. 22, 37 (D.R.I. 2007). Therefore, the analysis
below will address the CRPD, FEPA, and RICRA claims under a
single analytical framework derived from ADA case law.
Deighan alleges that SuperMedia took the following three
separate discriminatory actions in violation of the CRPD, FEPA,
and

RICRA:

(1)

SuperMedia

failed

to

reasonably

accommodate

Deighan with additional medical leave; (2) SuperMedia subjected
Deighan

to

disparate

treatment

because

his

disability

was

psychological, as opposed to physical; and (3) SuperMedia failed
to engage in the required interactive process. (Pl.’s Obj. 6,
ECF No. 27-2.)3 Each is addressed below.
1. Failure to Accommodate and Disparate Treatment Claims
In

order

to

recover

under

a

“failure

to

accommodate”

theory, Deighan must prove: “(1) that he is a person with a
disability; (2) that he was nevertheless able to perform the
essential functions of his job with reasonable accommodation,
and at no ‘major cost’ to his employer; and (3) that Defendants,
3

Deighan also asserts that SuperMedia backfilled his
position “because of his disability and accommodation request.”
(Pl.’s Obj. 6; ECF No. 27-1.) While it is not entirely clear to
the Court whether this allegation is meant to describe a
retaliation claim or a failure to accommodate claim, the claim
fails regardless. To the extent that Deighan intended this claim
to be analyzed under a “retaliation” theory, the claim fails for
the same reason as his other retaliation claims. See supra, note
2. Alternatively, if Deighan intended this claim to be analyzed
under a failure to accommodate theory, it fails for the reasons
detailed in the following section.
24

despite knowing of his alleged disability, did not reasonably
accommodate it.” Kriegel, 266 F. Supp. 2d at 297 (citing Carroll
v. Xerox Corp., 294 F.3d 231, 237–38 (1st Cir. 2002)). Deighan’s
“disparate

treatment

requirements.

See

theory”

Carroll

claim

v.

must

Xerox

satisfy

Corp.,

294

these
F.3d

same

at

237

(citing Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 197 (1st
Cir. 1999)).
Both

Plaintiff

disability
refused

to

additional

and

and

that

provide
medical

Defendants

SuperMedia,
Deighan

leave

an

agree

knowing

that
of

accommodation

through

January

of

Deighan
his

in

had

a

disability,
the

2013.

form
What

of
the

parties disagree about is whether Deighan would have been “able
to

perform

the

essential

functions

of

his

job”

if

only

SuperMedia had provided Deighan the “reasonable accommodation”
of additional leave time. Kriegel, 266 F. Supp. 2d at 297. At
the summary judgment stage, the employee bears the burden of
showing that there is a “trialworthy issue as to whether [he]
could have performed an essential function of [his] job . . .
with or without a reasonable accommodation.” Lang v. Wal-Mart
Stores E., L.P., 813 F.3d 447, 457 (1st Cir. 2016). Deighan
fails to meet that burden.
In May of 2012, Deighan was forced to take a thirteen-week
leave of absence from his sales management position because of a
25

psychological disability. When that thirteen-week period ended,
there is no dispute that Deighan informed SuperMedia that he was
medically unable to work in his previous sales manager position
and

requested

that

he

be

permanently

position.

Documentary

evidence

August

email

Deighan

13

from

of
to

transferred

this

request

SuperMedia’s

to

a

includes

Human

new
an

Resource

Department in which he states that “[d]ue to my disability and
recommendation from my doctors, I am not able to hold a sales or
sales management position.” (Defs.’ Mot. Ex. B, ECF No. 25-3.)
Additionally,

the

next

day,

Deighan

submitted

a

“Job

Accommodation Request” form to SuperMedia, in which he stated
that “[p]er medical advice, the nature of the direct sales or
sales management role caused and would exacerbate my medical
condition. . . . I anticipate a permanent accommodation.” (Id.)
Once SuperMedia notified Deighan that they could not find
an open position for him at his previous salary level (outside
his former sales management position), Deighan did request to
come back to his former position. SuperMedia notified Deighan
that

he

could

return

to

the

sales

manager

position

at

the

conclusion of his short-term disability leave (on November 16),
but only if he could provide medical documentation showing that
his mental health status had changed. (Defs.’ Mot. Ex. E, ECF
No.

25-3.)

Alas,

Deighan

never
26

provided

that

documentation,

despite

saying

he

would.

(Id.)

And

on

November

14,

Dieghan

emailed SuperMedia, explaining that “[d]ue to my current medical
condition, my doctors will not approve a RTW date of November
16, 2012. With continued treatment, they are hopeful for a RTW
date

of

early

Jan[uary]

2013.

Thank

you

for

your

continued

flexibility.” (Pl.’s Obj. Ex. B; ECF No. 27-2.)
Deighan now claims that, despite his previous assertions,
he

was

in

fact

able

to

return

to

his

previous

position

in

January of 2013. Therefore, the argument goes, “a reasonable
accommodation in the form of a brief extension of his medical
leave until January 1, 2013 would have enabled him to” return to
work. (Pl.’s Obj. 10; ECF No. 27-1.) But regardless of whether
an

additional

accommodation

medical
request

–

leave
which

period
is

not

was
clear

a

“reasonable”

-

there

is

a

fundamental flaw with this argument: Deighan has not provided
any evidence that he could have performed the sales management
job starting in January of 2013.
To

support

his

claim,

Deighan

has

provided

deposition

testimony in which he explained that, in the fall of 2012, his
treating physicians anticipated that he would be able to return
to work in January of 2013. (Pl.’s Obj. Ex. A, Deighan Depo.
225:4-19, 240:11-24, 241:1-15, ECF No. 27-2.) However, Deighan’s
testimony as to what his medical staff told him is inadmissible
27

hearsay, see Fed. R. Evid. 801, and is not competent evidence at
the summary judgment stage:
[Plaintiff’s] account of what [he] think[s] (or
hope[s]) that [a doctor’s] testimony might be —
amounts to inadmissible hearsay. It is crystal clear
that [Plaintiff] had no scientific knowledge as to
causation and was incompetent to testify to any of the
matters stated. Hearsay evidence, inadmissible at
trial, cannot be considered on a motion for summary
judgment.
Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990); see
also Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used
to

support

or

oppose

a

motion

must

be

made

on

personal

knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify
on the matters stated.”).
Beyond

this

inadmissible

hearsay,

the

record

is

conspicuously devoid of any medical or other evidence to suggest
that

what

had

previously

been

described

as

a

“permanent”

disability had since been mitigated to the point that Deighan
could return to work. For example, Deighan did not provide any
medical records, testimony from a medical professional or other
competent expert,

or even

testimony from a

lay witness

with

sufficient personal knowledge to suggest that, as of January of
2013, Deighan was “able to perform the essential functions of
28

his

job

.

.

.

.”

Kriegel,

266

F.

Supp.

2d

at

297.

Such

information is necessary because, as Deighan himself admitted in
his deposition, “I’m not a doctor. I can’t ascertain my own
condition.” (Pl.’s Obj. Ex. A, Deighan Depo. 216:13-14, ECF No.
27-2.)

Given

this

lack

of

evidence,

Deighan

has

failed

to

demonstrate the existence of a “trialworthy issue as to whether
[he] could have performed an essential function of [his] job . .
. with or without a reasonable accommodation.” Lang, 813 F.3d at
457.4
2.

Failure to Engage in an Interactive Process

Just as Plaintiff’s failure to provide sufficient evidence
regarding

his

ability

to

return

to

work

forecloses

his

“reasonable accommodation” claim, so goes his “failure to engage
in

an

interactive

process”

claim.

As

the

First

Circuit

has

explained, while
there may be situations in which failure to engage in
the [interactive] process would constitute a failure
4

Deighan argues that he had no incentive to collect this
sort of evidence back in January of 2013 because SuperMedia had
already backfilled his position and therefore would not have
accepted his medical clearance anyway. But this argument misses
the point. Regardless of whether Deighan was required to provide
SuperMedia with evidence of his fitness to return to work back
in January of 2013, Deighan is still required to provide this
Court with that evidence in order to preclude summary judgment.
Lang, 813 F.3d at 454 (citing Jones, 679 F.3d at 17). To this
day, Deighan has provided no competent evidence that he has ever
been able to return to a sales management position, with or
without an accommodation.
29

to provide reasonable accommodation that amounts to a
violation of the ADA . . , we also consider such an
omission of no moment if the record forecloses a
finding that the plaintiff could perform the duties of
the job, with or without reasonable accommodation.
Kvorjak v. Maine, 259 F.3d 48, 52–53 (1st Cir. 2001) (internal
citations

and

quotations

omitted).

Simply

put,

there

is

no

liability for an employer that fails to engage in an interactive
process where the employee has failed to provide evidence to the
employer that he or she could perform the essential functions of
the job with or without a reasonable accommodation. There is no
need for an interactive process “unless the interaction could
have led to the discovery of a reasonable accommodation that
would

have

enabled

the

plaintiff

to

perform

the

essential

functions of her position.” Richardson v. Friendly Ice Cream
Corp., 594 F.3d 69, 82 (1st Cir. 2010). As discussed above,
Deighan provided no information to his employer and no competent
evidence to this Court that he was able to perform the duties of
his

job

starting

in

January

of

2013.

There

is

therefore

no

genuine issue of material fact as to whether the interactive
process would have uncovered a reasonable accommodation.
D. Parties’ Other Motions
Defendants have moved to have portions of their statement
of undisputed facts deemed admitted because Plaintiff failed to
properly rebut those statements in his response under Fed. R.
30

Civ. P. 56(c). (ECF No. 31.) Additionally, Defendants have moved
to strike various statements and pieces of evidence based on
evidentiary objections as to relevance and hearsay, as well as
contentions

that

certain

facts

are

not

supported

by

record

citations. (Id.) Lastly, Plaintiff has responded by moving to
strike portions of Defendants’ response to Plaintiff’s statement
of

undisputed

facts,

as

well

moving

to

have

portions

of

Plaintiff’s undisputed statement of facts deemed admitted, also
pursuant

to

Rule

56.

(ECF

Nos.

32

and

33.)

Under

certain

circumstances, motions to admit and strike may be appropriate at
the summary judgment stage. See, e.g., Facey v. Dickhaut, 91 F.
Supp. 3d 12, 19–20 (D. Mass. 2014) (“A motion to strike is the
appropriate means of objecting to the use of affidavit evidence
on a motion for summary judgment.”). However, the outcome of
these

motions

does

not

affect

the

analysis

of

Defendants’

summary judgment motion. As this Court finds that there is no
genuine issue of material fact as to all of Deighan’s claims,
both Plaintiff’s and Defendants’ other motions are moot.

31

III. Conclusion
For the reasons set forth above, Defendants’ Motion for
Summary

Judgment

is

GRANTED.

The

other

motions

submitted

by

Plaintiff and Defendants are DENIED AS MOOT. Judgment will enter
for Defendants.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: November 29, 2016

32