Pereira v. Electric Boat Corporation

Filing 31

MEMORANDUM AND ORDER granting 16 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 10/21/2019. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
v.
)
)
ELECTRIC BOAT CORPORATION,
)
)
Defendant.
)
___________________________________)
FERNANDO PEREIRA,

C.A. No. 17-059 WES-LDA

MEMORANDUM AND ORDER
William E. Smith, Chief Judge.
Before the Court is Defendant Electric Boat Corporation’s
Motion for Summary Judgment, ECF No. 16.

After considering the

evidence and arguments presented by the parties, for the reasons
set forth herein, Defendant’s Motion for Summary Judgment is
GRANTED.
I. Factual Background 1
Plaintiff Fernando Pereira applied for a job as an “Outside
Electrician” with Electric Boat in May 2014.

Def. Statement of

Undisputed

11,

Material

Facts

(“Def.’s

SUF”)

¶

ECF

No.

18.

Electric Boat, a government contractor, has a facility in Quonset
Point, Rhode Island, where it manufactures submarine components

1

The following facts are undisputed, unless otherwise noted.
Where there are factual disputes, the Court views the facts in the
light most favorable to Plaintiff. See Garmon v. Nat’l R.R.
Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016).
1

and outfits submarines.
responsible

for

Id. at ¶¶ 4-5.

installing

Outside Electricians are

lighting,

components,

cabinets,

hangers, and cable, as well as hooking-up electrical components,
fiber-optics and testing.
Pereira

accepted

contingent

upon

a
his

Id. at ¶ 7.

conditional
completion

job

Both parties agree that

offer

of

from

Electric

Electric

Boat’s

Boat

physical

examination. Id. at ¶ 13.
All applicants for positions at Electric Boat are required to
undergo this post-offer pre-employment physical exam to determine
whether the applicant is medically able to perform the functions
of the position. Id. at ¶ 17. Concentra Medical, an outside
contractor, conducted Pereira’s physical in July 2014. Id. at ¶¶
18-19.

Due

to

his

medical

history,

Electric

Boat

requested

additional medical information from Pereira. Id. at ¶ 19 (quoting
Damien M. DiGiovanni Decl., Exhibit D, Andrews Dep. 14:5-14). Dr.
Susan Andrews, the medical director at Electric Boat’s Quonset
Point

facility,

obtained

further

documentation

of

Pereira’s

medical conditions, including records going back two years. Def.’s
SUF ¶ 14, ¶ 20, ¶ 25; Pl.’s Resp. to Def.’s Undisputed Facts
(“Pl.’s RSUF”) ¶ 21, ECF No. 25-2. Pereira’s medical history
included a knee injury from 2011, carpal tunnel syndrome, and
degenerative joint disease in both knees and ankles. Def.’s SUF ¶¶
27-33.

2

Based on these records, his physical exam by Concerta, and
Dr. Andrews’ discussions with Pereira, Dr. Andrews determined that
Pereira would require restrictions, specifically that he could not
stand for an entire shift and had significant limitations in
certain movements such as bending, crouching, and gripping. Id. at
¶ 35. 2 Dr. Andrews relayed these restrictions to Brian Shields,
the Manager of Electric Operations at the facility. Id. at ¶¶ 3539. Shields, who had no role in determining the restrictions
themselves, ultimately found that Pereira’s restrictions could not
be accommodated due to the nature of the Outside Electrician Job,
which requires standing or walking for an entire day, using one’s
hands repetitively, and bending and squatting constantly. Id. at
¶ 39. 3
After

Shields

made

this

determination,

Electric

Boat’s

Accommodation Review Committee (“ARC”) was convened to conduct an
individualized assessment, which included interviewing Pereira.
Id. at ¶¶ 40-43. Electric Boat claims that Pereira stated during
the interview that he needed an hour-long break after performing
several hours of repetitive tasks; Pereira denies admitting he

2

Plaintiff disputes this fact, but, like many of his “disputed
facts,” what he is disputing is the method Dr. Andrews used to
come to her conclusion, not the conclusion itself. Pl.’s RSUF ¶35.
3

Plaintiff disputes these facts on the grounds that he was
performing the same job functions previously as an electrician in
New York. Pl.’s RSUF ¶ 39.
3

could not do the job or that he needed specific restrictions. Id.
at ¶ 44; Pl.’s RSUF ¶ 44. The parties also dispute whether Pereira
admitted in that meeting that no accommodations would enable him
to perform the job functions. Def.’s SUF ¶ 45; Pl.’s RSUF ¶ 45.
The ARC found that Pereira could not be accommodated, and Pereira
was told he could apply for other positions at Electric Boat that
might be a better fit. Def.’s SUF ¶¶ 46-7.
In

January

2015,

Pereira

applied

again

for

an

Outside

Electrician job at Electric Boat. Id. at ¶¶ 48-49. As part of his
second
updated

application
medical

process,

Electric

information

regarding

Boat

was

Pereira’s

provided
carpal

with

tunnel

syndrome. Id. at ¶ 49. Based on that, Dr. Andrews determined that
she

could

lift

some

of

the

previous

restrictions

related

to

Pereira’s carpal tunnel syndrome if he wore a wrist brace, and
presented those updates to Shields. Id. at ¶¶ 52-53. However,
without any changes to his other restrictions, his offer was again
rescinded. Id. at ¶ 53.

A second ARC interview and discussion

took place in April and May 2015, at which time it was again
determined that Pereira could not be accommodated.

Id. at ¶ 54.

Pereira filed suit against Electric Boat, alleging two causes
of action: (1) that Electric Boat intentionally discriminated
against him on account of his disability 4 by refusing to hire him,

4

It is unclear from Pereira’s Complaint what disabilities he is
alleging, but in his Objection to Defendant’s Motion for Summary
4

in violation of the Rhode Island Civil Rights Act, R.I. Gen. Laws
§

42-112-1

et

seq

(“Count

I”);

and,

(2)

that

Electric

Boat

intentionally discriminated against the Plaintiff on account of
his age by refusing to hire him (“Count II”). Plaintiff’s Complaint
(“Pl. Compl.”), Exhibit 1, ECF No. 1.
motion

for

Summary

Judgment

(“Def.

Electric Boat filed this
Mot.”),

ECF

No.

16,

and

Memorandum in Support of its Motion, ECF No. 17. Plaintiff filed
an Objection to Defendant’s Motion for Summary Judgment (“Pl.
Obj.”), in which he dropped Count II of his Complaint. ECF No. 251. Defendant filed a Reply in Further Support of its Motion for
Summary Judgment (“Def. Reply”). ECF No. 29.

II.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In ruling on a motion for summary judgment, the Court

“construe[s]

the

record

in

the

light

most

favorable

to

the

nonmovant and resolv[es] all reasonable inferences in that party’s
favor[,]

.

.

.

we

can

safely

ignore

conclusory

allegations,

improbable inferences, and unsupported speculation.” Mulloy v.

Judgment he specifically limits his claim to his carpal tunnel
syndrome. Pl. Obj. 12; see infra 8.
5

Acushnet Co., 460 F.3d 141, 145 (1st Cir. 2006), quoting Carroll
v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002).

III. Plaintiff’s Prime Facie Case
A. Relevant Law
In

employment

treatment,

the

discrimination

Court

usually

cases

applies

the

based

on

disparate

three-part

burden-

shifting paradigm set forth by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (“McDonnell
Douglas”).

However, the instant case falls into a particular sub-

genre of disparate treatment cases – ones in which the plaintiff
alleges that an employer failed to hire him because of a protected
disability. 5

In this context, to make out a prime facie case, the

plaintiff must show that he “(1) suffers from a disability . . .
as defined by the ADA 6 . . . that (2) he was nevertheless able to

Courts use the ADA to help interpret the Rhode Island Civil
Rights Act’s provisions regarding disability discrimination. See
Kriegel v. R.I. Dep’t of Corr., 266 F. Supp.2d 288, 296 (D.R.I.
2003) (remarking that the “contours” of disability discrimination
under RICRA are best understood by referring to the analysis used
in the ADA, the “corresponding federal statute”); Tardie v.
Rehabilitation Hosp. of R.I., 6 F. Supp. 2d 125, 132-33 (1st Cir.
1999).
5

6

This is a two-part inquiry asking first whether the
plaintiff has a “physical or mental impairment” and then whether
that impairment “substantially limits one or more of the major
life activities of such individual.” Katz v. City Metal Co., Inc.,
87 F.3d 26, 30-1 (1st Cir. 1996); citing ADA, 42 U.S.C. §12102(2).
6

perform the essential functions of the job, either with or without
reasonable accommodation, and finally (3) that [the employer] took
an adverse employment action against him because of . . . his
protected disability.” 7 Carroll, 294 F.3d at 237 (citing Lessard
v. Osram Sylvania, Inc., 175 F.3d 193, 197 (1st Cir. 1999)).

Where

there is no direct evidence of the third element, “a plaintiff may
indirectly prove that he was discriminated against because of a
disability by using the prima facie case and burden shifting
methods that originated in McDonnell Douglas . . . .” Katz v. City
Metal Co., Inc., 87 F.3d 26, 30 n.2 (1st Cir. 1996).
B. First Element: Protected Disability
In order to show he has a disability under the ADA, Pereira
must show that he has a physical or mental impairment which
substantially limits a major life activity. 8 Carroll, 294 F.3d at

7

Defendant applies the wrong framework, citing disparate
treatment cases involving discrimination based on race or age, and
particularly “failure to promote” cases. Rathbun v. Autozone,
Inc., 361 F.3d 62, 71 (1st Cir. 2004) (prime facie elements of
“failure to promote” claim are that plaintiff is a member of a
protected class, is qualified for an open position to which he
applied, but was rejected in favor of someone possessing similar
qualifications).
8

There are two other ways in which a plaintiff can prove a
disability under the ADA – by showing a record of such an
impairment, or showing that the employer regarded him as having
such an impairment. Carroll, 294 F.3d at 238 n.4; 42 U.S.C. § 12102
(2)(B)(C). Pereira argues for the first time, in response to
Defendant’s motion, that even if he is not “disabled” under the
ADA, he has a “record of disability” or, alternatively, he was
“regarded as” disabled by Electric Boat, and that he was
discriminated against on one of those two covered grounds. Pl.
7

238 (citing 42 U.S.C. § 12102(2)(A)).

While Pereira briefly

mentions knee injuries and carpal tunnel in his Complaint, in his
Objection
disability

to

Defendant’s

allegations

to

motion
his

he

carpal

specifically
tunnel

limits

syndrome. 9

his
He

maintains that his carpal tunnel causes him tingling in his wrist
both when he is working and at rest. 10 Pl. Obj. 11; Def.’s SUF ¶
28, DiGiovanni Decl. Exhibit A, Pereira Dep., 16:23-24, 17:1-7.

Obj. 12-14; Pl. Comp. 34. As part of these claims, Pereira alleges
disabilities other than his carpal tunnel syndrome. Id. The Court
declines to review these claims, as Pereira is procedurally barred
from raising them now for the first time.
See Ruiz Rivera v.
Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (“It simply
will not do for a plaintiff to fail to plead with adequate
specificity facts to support a regarded as claim, all the while
hoping to play that card if her initial hand is a dud.”); see
generally Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1171
(1st Cir. 1995) (defendant has an “inalienable” right to know the
cause of action being asserted against him). Substantively,
Pereira’s “regarded as” claim necessarily fails because he merely
summarily states that “it is clear from the restrictions that
Defendant withdrew Plaintiff’s conditional offer of employment
because of his various medical conditions that regarded him a[s]
disabled.” Pl. Obj. 14.
9

This is the only disability Pereira alleges to support his
claim of a “physical impairment that substantially limits a major
life activity.” Pl. Obj. 13 (“For this part, Plaintiff is only
claiming that issues with his hands and wrist (carpal tunnel
syndrome) constitute a disability.” Pl. Obj. 11.) As noted above,
in his newly minted “record of disability” and “regarded as”
claims, he references his other medical conditions. See Pl. Obj.
12-13.
But because these claims were not properly raised, the
Court is not able to review them, and so limits its discussion to
Pereira’s carpal tunnel syndrome. See supra n.8
10

It is not clear whether Electric Boat disputes that Pereira’s
carpal tunnel syndrome constitutes a disability. Electric Boat
makes the conclusory statement that Pereira cannot “demonstrate
8

Pereira

argues

that

because

his

carpal

tunnel

syndrome

affects his ability to use his hands in a repetitive motion “such
as an electrician, in construction work, typing and other jobs,”
he is therefore substantially limited in the major life activity
of working. Pl. Obj. 12; R.I. Gen. Laws § 42-87-5.

Pereira asks

the Court to find that an impairment need “substantially limit
only one major life activity to qualify as a disability” and cites
to the ADA Amendments’ (“ADAA”) in support of his argument. Pl.
Obj.

11-12;

ADAA,

12102(4)(C)(stating

Pub

L.

No.

expressly

that

110-325,
courts

§
have

2(b)(5),

§

interpreted

“substantially limits” too narrowly and that “an impairment that
substantially limits one major life activity need not limit other
major life activities in order to be considered a disability.”);
see Martin v. District of Columbia, 78 F. Supp. 3d 279, 297-98
(D.D.C. 2015)(finding that an impairment need substantially limit
only one major life activity to qualify as a disability under the
ADA).
While it is a relatively close call, the Court need not decide
whether there is a dispute of material fact over whether Pereira
has a physical impairment that substantially limits a major life
activity, because, assuming that he does, the second element –whether Pereira was a qualified individual capable of performing

that he was an individual with a disability,” but never actually
explains this statement in more detail. Def. Mot. 7.
9

the essential functions of the job with or without accommodation
–- provides a sufficient basis for decision.
A. Second Element: Qualified Individual
Analyzing this element involves two steps: (1) whether the
employee could perform the essential functions of the job; and,
(2) if not, whether any reasonable accommodation by the employer
would enable him to perform those functions. Ward v. Massachusetts
Health Research Inst., Inc. 209 F.3d 29, 33-34 (1st Cir. 2000).
Courts should give “substantial weight to the employer’s view of
job requirements,” although it is not dispositive.

Mulloy v.

Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006), quoting Ward, 209
F.3d at 34.
i.

Essential Functions

There is no real dispute over the essential functions of the
Outside Electrician job at Electric Boat. Rather, Pereira argues
that Electric Boat’s assessment that he could not perform those
functions without accommodations was inaccurate, in part because
the

assessment

was

based

on

old

records

“individualized” inquiry into his health.

as

opposed

to

an

Pl. Obj. 14-18.

Contrary to Pereira’s description, however, Electric Boat did
perform an extensive inquiry.

Electric Boat’s decision not to

hire Pereira twice was based on a physical exam performed by an
outside contractor, a physical exam performed by Dr. Andrews (the
second time Pereira applied), records obtained regarding previous
10

medical diagnoses and treatment, interviews with Pereira, and
discussions within a committee set up for exactly this purpose.
Def. Mot. 12-13; Def. Rep. 6.

In the cases Pereira cites, the

employer conducted a much less thorough inquiry than Electric Boat
did here.
Family

See e.g., Equal Emp’t Opportunity Comm’n v. M.G.H.

Health

Ctr.,

230

F.

Supp.

3d

796,

808

(criticizing

employer’s “mechanical reliance” on plaintiff’s medical records to
place plaintiff on a medical hold despite the fact that plaintiff
had worked in the position without accommodation for five weeks);
Lafata v. Dearborn Heights Sch. Dist. No.7, No. 13-cv-10755, 2013
WL 6500068, at *11 (E.D. Mich. Dec. 11, 2013) (finding plaintiff
entitled to summary judgment where employer had no discussions
about whether there was a reasonable accommodation that would allow
plaintiff to fulfill the duties of the job).
After all the steps outlined above, Electric Boat concluded
that

Pereira

applied),

had

carpal

degenerative

tunnel
joint

syndrome

disorder

(the
in

degenerative joint disorder in both ankles.
16,

¶

34.

Dr.

Andrews

imposed

the

first

both

time

knees,

he
and

Def.’s SUF ¶ 14, ¶

following

restrictions:

“occasional repetitive hands, grip/grasp, occasional bend, stoop,
squat, crouch, frequent stand, walk.”

Def.’s SUF ¶ 43. When

Electric Boat evaluated Pereira during his second application for
the Outside Electrician job, it looked at his updated records
regarding his carpal tunnel and determined that this condition had
11

improved and could be accommodated by the wearing of a wrist brace.
Id. at ¶ 52; DiGiovanni Decl., Ex. 1 at 11. For all intents and
purposes, this ends the inquiry, as Electric Boat was willing to
accommodate Pereira’s carpal tunnel syndrome, and he acknowledges
that. Pl. Obj. 12.
However, Pereira attempts to pivot and challenge Electric
Boat’s decision not to hire him because of his other physical
conditions.

But this sleight of hand fails.

The only disability

Pereira has claimed was carpal tunnel; Electric Boat accommodated
this, but determined he could not perform the essential functions
of the job for other reasons.

And he couldn’t.

Brian Shields,

the Manager of Electrical Operations, determined that despite the
lifting of Pereira’s hand movement restrictions, Pereira still
could not perform the essential functions of the job because
outside electricians “need to be able to stand or walk the entire
day” and must be able to bend, squat and stoop frequently.

Def.’s

SUF ¶ 47, ¶ 53; DiGiovanni Decl., Ex. 1 at 11.
Pereira argues that Electric Boat was wrong and that he could
in fact perform the essential functions of the job, despite the
problems with his knees and ankles, since he had been performing
similar work at his previous job in New York. Pl. Obj. 15-17. But
the record shows that the work he performed previously was quite
different than the job at Electric Boat required.

For example, in

his previous job he had been working in “non-confined” spaces much
12

of the time but would be in a confined space for “100% of his
shift” at Electric Boat. Def.’s SUF ¶ 7-10; Pl. Obj. at Ex. 2 (Pl.
Affidavit); DiGiovanni Decl., Ex. A at 47. In fact, as argued by
Electric Boat, there “are few, if any similarities between the two
jobs with regard to their physical requirements . . . the only
major

similarity

was

that

both

required

he

be

a

licensed

electrician.” Def. Reply 4.
Additionally, Pereira’s cited cases are inapposite, as they
involve plaintiffs who had been working for the defendant employer,
already performing the same job functions, when they were fired.
See Iselin v. Bama Cos., 690 Fed. Appx. 593, 596 (10th Cir. 2017)
(the plaintiff had been working for defendant performing the same
job duties before being fired); D’Angelo v. ConAgra Foods, Inc.,
422

F.3d

1220,

1234

n.6

(11th

Cir.

2005)

(same);

Rizzo

v.

Children’s World Learning Ctrs., Inc., 173 F.3d 254, 260 (5th Cir.
1999), see Def.’s Reply 5-6.

Here, where Pereira had not been

working for Electric Boat or performing the same job functions
elsewhere, his previous employment was irrelevant to assessing his
ability to do the job of an Outside Electrician.
This all makes clear that while Electric Boat was willing to
accommodate Pereira, he was nonetheless unable to perform the
essential functions of the job even with that accommodation.

13

ii.

Reasonable Accommodation

A “reasonable accommodation is one which would enable [the
plaintiff] to perform the essential functions of [his] job [and]
. . . at least on the face of things . . . is feasible for the
employer under the circumstances.” Mulloy, 460 F.3d at 148 (citing
Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001))
(internal citations omitted); see also 29 C.F.R. 1630.2(o)(1)(ii).
In determining what is a reasonable accommodation, courts are
deferential to employers. Mulloy, 460 F.3d at 147;

Mason v. Avaya

Comm., Inc., 357 F.3d 1114, 1123 (10th Cir. 2014) (“In cases
arising under the ADA, we do not sit as a ‘super personnel
department’ that second guesses employer’s business judgment”)
(internal citations omitted); 29 C.F.R. § 1630 App’x (“It is
important to note that the inquiry into essential functions is not
intended to second guess an employer’s business judgment
Pereira

acknowledges

that

Electric

Boat

was

. . .”).

willing

to

accommodate his carpal tunnel syndrome by letting him wear a wrist
brace. Pl. Obj. 12.

Pereira suggests that Electric Boat could

have provided a different accommodation that not only would have
addressed his carpal tunnel but also would have accommodated his
knee and ankle problems. He says Electric Boat should have allowed
him to act as a “safety advisor” most of the time. Pl. Obj. 19.
Electric Boat did consider this suggestion and rejected it. Def.’s
Reply 10.

Electric Boat explains that each outside electrician
14

takes a turn being “safety advisor,” it “could not reasonably
accommodate [Pereira] by allowing him to perform only one small
function of the job, full time,” especially when the safety advisor
position is the only chance each outside electrician has to stand
up and rest their hands during the day. Def.’s Reply 10; Def.’s
SUF ¶ 7-10.

Electric Boat was not required to “reallocat[e]

essential functions to make other workers’ jobs more onerous,” in
order to accommodate Pereira. Mulloy, 460 F.3d at 153; see Phelps
v. Optima Health, Inc., 251 F.3d 21, 26 (1st Cir. 2001) (employer
did not have to allow nurse employee to engage in a job-sharing
arrangement as a reasonable accommodation).
Electric

Boat’s

accommodation

of

Pereira’s

only

disability – his carpal tunnel syndrome – was reasonable.

claimed
It was

not required to provide Pereira with the alternative accommodation
he sought.
C.

Third Element: Adverse Employment Action

Pereira also fails to meet the final element of an ADA claim:
that the employer’s decision was based on the plaintiff’s claimed
disability.

As outlined above, Electric Boat’s decision not to

hire Pereira was based not on his carpal tunnel syndrome, but on
his inability to meet the requirements of the job because of his
other medical conditions. See supra 10-11. Therefore, Pereira has
failed to show, as is required under the law, that Electric Boat
took the adverse action of not hiring him “because of, in whole or
15

in part, his protected disability.” Carroll, 294 F.3d at 237; see
Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 990-91 (8th
Cir. 2007) (finding evidence of a “specific link” between the
disability discrimination and the employer’s adverse action – its
decision not to hire the plaintiff).

IV. Conclusion
For

the

reasons

discussed

above,

Summary Judgment, ECF No. 16, is GRANTED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: October 21, 2019

16

Defendant’s

Motion

for