Saad v. Hexagon Metrology, Inc.

Filing 49

MEMORANDUM AND ORDER granting 27 Motion for Summary Judgment; granting 30 Motion for Summary Judgment; denying as moot 38 Motion to Strike ; denying as moot 46 Motion to Strike - So Ordered by District Judge John J. McConnell, Jr. on 7/8/2019. (Barletta, Barbara)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

DAVID SAAD,
Plaintiff,

v.
HEXAGON METROLOGY, INC.,
Defendant.
v.

OCCUPATIONAL HEALTH
CENTERS OF THE SOUTHWEST,
P.A.,
Third Party Defendant.

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C.A. No. 17-202·JJM·LDA

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MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Judge.
Defendant Hexagon Metrology, Inc. ("Hexagon") moves for summary judgment
on all counts of Plaintiff David Saad's Complaint. ECF No. 27. For the reasons below,
the Court GRANTS Hexagon's Motion for Summary Judgment in its entirety.

I.

BACKGROUND
Mr. Saad began working for Hexagon as an Assistant Marketing Manager in

March 2015. Before being hired, Mr. Saad took a pre·employment drug test and a
pre·employment physical performed by Third·Party Defendant, Occupational Health
Centers of the Southwest, P.A. ("Concentra"). Susan Booth, Hexagon's Manager of
Health and Well·Being, scheduled the tests with Concentra and received a fax from
Concentra showing that Mr. Saad passed his pre·employment physical and drug test.

Soon after he started working for Hexagon, Mr. Saad experienced performance
issues.

As a result of his performance deficiencies, Mr. Saad met with Bridget

Benedetti, Hexagon's Director of Marketing and Communications, and was provided
with a below standards performance review. Ms. Benedetti also placed Mr. Saad on
a written Performance Improvement Plan ("the Plan") that outlined six performance
areas of concern and five action areas for improving performance. Mr. Saad's Plan
explicitly stated that the completion date for the Plan was June 15, 2015, Mr. Saad's
progress would be assessed, and a final determination on whether he raised his
performance to a satisfactory level would be made. The Plan also warned that if Mr.
Saad's performance did not improve sufficiently, his employment would be reviewed
for further action, up to and including termination. Mr. Saad signed the Plan.
After Mr. Saad was placed on the Plan, there were reports of Mr. Saad's
insubordination including his disparaging Ms. Benedetti to other Hexagon personnel.
At one point, Adam Redford, Hexagon's Trade Show and Events Manager, met with
Ms. Benedetti to relay his concerns that Mr. Saad was having a negative effect on the
team because of his negative comments.
Four days after the improvement deadline in the Plan, Ms. Benedetti and
Glenn Wambolt, Hexagon's then-Director of Human Resources, met with Mr. Saad.
They discussed his poor job performance and criticisms of Ms. Benedetti. Mr. Saad
denied making the remarks.
Nevertheless, Ms. Benedetti and Mr. Wambolt decided to terminate Mr. Saad's
employment effective June 22, 2015. At all relevant times including at the time of

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termination, neither Ms. Benedetti nor Mr. Wambolt had knowledge that Mr. Saad
suffered from a medical condition or had been prescribed OxyContin while employed
at Hexagon.
Separately, on June 8, 2015, Mr. Saad contacted Concentra about his desire to
increase his dosage of OxyContin. Concentra's Physician's Assistant, Melissa Mills,
contacted Mr. Saad's primary care physician who told Ms. Mills that he had referred
Mr. Saad to a specialist for managing his alleged chronic pain. On June 16, 2015,
Ms. Mills contacted Ms. Booth at Hexagon and indicated that Mr. Saad wanted to
increase his dosage ofOxyContin. The same day that Ms. Booth learned of Mr. Saad's
prescription drug use and medical condition, she met with Mr. Saad and asked if he
"required an accommodation" for his condition. Mr. Saad replied that he did not.
On June 17, 2015, Ms. Booth received a note from Mr. Saad's primary care
physician stating that Mr. Saad could work on a higher dosage of OxyContin. 1 Ms.
Booth accepted the note and Mr. Saad continued to work at Hexagon until he was
terminated on June 22, 2015.

II.

STANDARD OF REVIEW
Summary judgment is proper when the pleadings, discovery and disclosure

materials on file, affidavits, and any other admissible material in the record
demonstrate that "there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56. To determine whether

1 Prior to June 17, 2015, Mr. Saad had been prescribed to take OxyContin just
once daily and once at night since the beginning of his employment at Hexagon.

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summary judgment is suitable, the court analyzes the record in the light most
favorable to the nonmovant and draws all reasonable inferences in that party's favor.

See Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997).
The burden falls first on the movant to aver an absence of genuine issue of
material fact which requires resolution at trial. See Nat'l Amusements, Inc. v. Town

ofDedham, 43 F.3d 731, 735 (1st Cir. 1995) (Citing Celotex C01p. v. CatJ·ett, 477 U.S.
317, 324 (1986)). The burden then shifts to the nonmovant who must oppose the
motion by presenting facts to show a genuine issue of material fact remains. I d. A
factual issue is genuine if it "may reasonably be resolved in favor of either party."

Anden;on v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material if it holds
the power to "sway the outcome of the litigation under applicable law." Nat'l

Amusements, 43 F.3d at 735. The nonmovant must rely on more than "effusive
rhetoric and optimistic surmise" to establish a genuine issue of material fact. Cadle,
116 F.3d at 960.

Rather, the evidence relied on by the nonmovant "must have

substance in the sense that it limns differing versions of the truth which a factfinder
must resolve .... " Nat'l Amusements, 43 F.3d at 735 (quoting Mack v. Gmat Atl. &

Pac. Tea Co., 871 F.2d179, 181 (1st Cir. 1989)).
III.

DISCUSSION
Mr. Saad fails to satisfy the necessary elements of his legal claims against

Hexagon. The survival of the claims here center on whether Hexagon knew about

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Mr. Saad's alleged disability. 2

First, Mr. Saad's claim that Hexagon failed to

accommodate his alleged disability before June 16, 2015 fails because Hexagon did
not know about Mr. Saad's disability until that date. Further, when one Hexagon
employee, Ms. Booth, learned of Mr. Saad's prescription drug use, she asked Mr. Saad
if he required an accommodation and he declined. Second, Mr. Saad's disability
discrimination claim fails because neither decisionmaker at Hexagon who terminated
him had knowledge of his alleged disability at the time of his termination. Moreover,
the record here shows that Mr. Saad was terminated because of his poor performance
even after being placed on the Plan.
A.

Mr. Saad's Failure to Accommodate Claim Fails

To bring a failure to accommodate claim under the ADA, Mr. Saad must show
that (1) he is a handicapped person under the ADA; (2) he is nonetheless qualified to
perform the essential functions of the job (with or without accommodation); and (3)
the employer knew of the disability but declined reasonably to accommodate it upon
request. See Sepulveda-Vargas v. Cadbbean Rests., LLC, 888 F.3d 549, 553 (1st Cir.
2018). On the facts here, Mr. Saad fails to prove at least the third element of his
failure to accommodate claim and so summary judgment enters for Hexagon.

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Mr. Saad admits that "[k]knowledge of[his] chronic back pain does not equate
to knowledge that he suffers from a disability. Unless [he] informed his supervisor
that the backpain interferes with a 'major life activity' (See, e.g., Sullivan v. Neiman
Marcus Group, Inc., 358 F.3d 110, 114·115 (1st Cir. 2014)), the symptom by itself is
insufficient to put Hexagon on notice that Mr. Saad deserved protection under the
ADA." ECF No. 47 at 3.
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1.

Mr. Saad Fails To Establish That Hexagon Is Liable For
Concentra's Alleged Acts and Omissions

First, Mr. Saad argues that Concentra initially denied Mr. Saad a reasonable
accommodation and Hexagon is liable for the alleged acts and omissions of Concentra
on the theory that Concentra was acting as Hexagon's agent. ECF No. 34 at 8. In
Rhode Island, "[a]n agency relationship exists when: (1) the principal manifests that
the agent will act for him, (2) the agent accepts the undertaking, and (3) the parties
agree that the principal will be in control of the undertaking." Pineda v. Chase Bank

United States, NA., 186 A. 3d 1054, 1057 (R.I. 2018) (quoting Cl'edit Union Central
Falls v. Groff, 966 A.2d 1262, 1268 (R.I. 2009)). There is nothing in the record here
to prove that Hexagon had control over Concentra's pre-employment physical and
drug testing of Mr. Saad.
Mr. Saad also argues that Hexagon had vested apparent authority in
Concentra to decide on Hexagon's behalf about hiring and accommodations.

To

establish the apparent authority of an agent, "facts must be shown that the principal
has manifestly consented to the exercise of such authority or has knowingly permitted
the agent to assume the exercise of such authority." Calenda v. Allstate Ins. Co., 518
A.2d 624, 628 (R.I. 1986). There is nothing in front of the Court to show that Hexagon
"manifestly consented to" or "knowingly permitted" Concentra to make hiring or
accommodation decisions for Hexagon. Without that evidence, Mr. Saad has failed to
create an issue of material fact concerning Concentra's agency status here.

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2.

Mr. Saad Fails To Establish that Hexagon Knew Of His Alleged
Disability And Declined To Reasonably Accommodate It Upon
Request

Mr. Saad's claim that Hexagon failed to provide him with a reasonable
accommodation fails. Hexagon was unaware of Mr. Saad's medical condition until
June 16, 2015. Upon one Hexagon employee's knowledge of Mr. Saad's prescribed
drug use, she asked him whether he required an accommodation and he responded
that he did not.
Mr. Saad cannot maintain a failure to accommodate claim during the period
from his date of hire in March 2015 through June 16, 2015, because Hexagon did not
know about his alleged disability. ECF No. 28·7 at 4,
~~

,,~

15·16; ECF No. 28·3 at 2,

12·13; ECF No. 28·2 at 16·18; See Sepulveda-VaTgas, 888 F.3d at 553 (holding

that to bring a failure to accommodate claim under the ADA, employer must know of
the disability and decline to accommodate it).
On June 16, 2015, Hexagon's nurse, Ms. Booth, learned of Mr. Saad's
prescription drug use from Concentra. ECF No. 28·2 at 22. Upon learning of Mr.
Saad's medical condition, Ms. Booth specifically asked Mr. Saad whether he "required
an accommodation," and Mr. Saad responded, "no." ECF No. 28·8 at 12. Indeed, Mr.
Saad admitted in two sworn statements he submitted to the Rhode Island
Commission for Human Rights ("RICHR") that he declined an accommodation. ECF
No. 28·8; ECF No. 28·13. An employer's failure to offer an accommodation is an
essential element of an accommodation claim, and because Mr. Saad admits that

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Hexagon made an offer of accommodation, which he declined, Mr. Saad's failure to
accommodate claim must fail. See Sepulveda- Vaz:g-as, 888 F.3d at 553.
B.

Mr. Saad's Claim for Disability Discrimination Fails

Mr. Saad's claims are governed by the burden shifting framework of McDonnell

Douglas v. GPeen, 411 U.S. 792, 802-805 (1973). Under the McDonnell Douglas
framework, Mr. Saad must first make a pzima facie showing of discrimination. See

id. at 802. To establish a pzima facie case of disability discrimination, Mr. Saad must
prove that he (1) suffered from a disability; (2) was otherwise qualified to perform the
essential functions of his employment with or without reasonable accommodation;
and (3) was subject to an adverse employment action in whole or in part because of
his disability. See Can·oll v. XePox Cozp., 294 F.3d 231, 237 (1st Cir. 2002). If Mr.
Saad establishes a pzima facie case of discrimination, a rebuttable inference of
discrimination arises. See Shoz·ette v. Rite Aid ofMaine, Inc., 155 F.3d 8, 12 (1st Cir.
1998).

Then, the burden of production shifts to the employer to articulate a

legitimate, nondiscriminatory basis for its employment decision.

Id.

Once the

employer meets its burden, the burden returns to the employee to prove "(1) that the
reason the employer articulated for the challenged employment action was a pretext
or sham, but (2) that its real reason was the employee's [disability]." Id.
Mr. Saad fails to establish a pzima facie case of discrimination because the
facts here fail to show that Hexagon was aware of any disability that Mr. Saad had
when he was terminated. See Nilles v. Givaudan FlavoPs C01p., 521 Fed. Appx. 364,
368 (6th Cir. 2013) (affirming summary judgment for employer in ADA claim finding

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that an employee cannot be considered to have been fired because of disability unless
the decisionmaker who fired the individual knew about the disability). Indeed, Ms.
Benedetti and Mr. Wambolt, the two individuals who decided to terminate Mr. Saad,
were unaware of Mr. Saad's medical condition when he was terminated. ECF No. 287 at 4, "If 15; ECF No. 28-3 at 2, "!112·13. Additionally, there is no basis connecting

Ms. Booth's knowledge of Mr. Saad's medical condition to the decision to terminate
Mr. Saad as she did not disclose it to anyone at Hexagon, including Ms. Benedetti
and Mr. Wambolt. ECF No. 28-2 at 24.
Further, even if Mr. Saad could establish a pdma facie case, Hexagon had a
legitimate, nondiscriminatory reason to terminate him. The record here is replete
with facts establishing that Mr. Saad's job performance failed to meet Hexagon's
expectations and he did not perform his work satisfactorily.

First, Mr. Saad's

unsatisfactory work performance is evidenced by his "below standards performance
review" on May 8, 2015 and his placement on a Performance Improvement Plan3 on
May 14, 2015.

ECF No. 28·7 at 3,

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Mr. Saad signed the Performance

Improvement Plan, but his performance did not improve. Rather, there were reports
that Mr. Saad began to engage in insubordinate behavior by openly disparaging Ms.
Benedetti in front of Hexagon employees. ECF No. 28-9 at 2, "If 6; ECF No. 28·7 at 3,

3 The Plan outlined areas of deficient performance including Mr. Saad's
inability to understand corporate brand standards, failure to lead a project with an
internal client leading to another team member taking over the communications and
meeting planning, and lack offocus. ECF No. 28·3 at 7·8.
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~[12.

As a result of Mr. Saad's substandard work and insubordination, Ms. Benedetti

and Mr. Wambolt terminated him.
Because the facts establish that Hexagon terminated Mr. Saad for legitimate,
nondiscriminatory reasons, Mr. Saad must prove that (1) the reason Hexagon
articulated for the termination was a pretext or sham and (2) its real reason was Mr.
Saad's disability. See Shorette, 155 F. 3d at 12. The Court finds that the record is
lacking any evidence that Hexagon's proffered reasons for terminating Mr. Saad are
a pretext for discrimination.

While, at first glance, the issue of timing seems

suspicious, Ms. Booth's learning of Mr. Saad's medical condition on June 16, 2015 is
irrelevant considering she never disclosed that information and Mr. Saad's work
performance was at issue long before Ms. Booth learned of the condition.
IV.

CONCLUSION
For all these reasons, the Court GRANTS Hexagon's Motion for Summary

Judgment:1 ECF No. 27.

Accordingly, Concentra is likewise entitled to summary judgment as there is
no liability on the part of Hexagon from which it could seek indemnity. The Court
GRANTS Concentra's Motion for Summary Judgment. ECF No. 30. The Court also
DENIES as moot Hexagon's Motions to Strike. ECF Nos. 38, 46.
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John J. Me onnell, Jr.
United States District Judge
July 8, 2019

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