Hall v. Spencer

Filing 91

MEMORANDUM AND ORDER DENYING RENEWED MOTION FOR STAY AND RESETTING PRETRIAL ORDER DEADLINES Dispositive Motions due by 8/31/2022;, Pretrial Memorandum due by 9/15/2022 only if no dispositive motion is pending. Motions terminated: 68 MOTION to Stay filed by Lori Hall.. So Ordered by Magistrate Judge Patricia A. Sullivan on 7/14/2022. (Saucier, Martha)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
LORI HALL,
Plaintiff,
v.
CARLOS DEL TORO, SECRETARY,
U.S. DEPARTMENT OF THE NAVY,
Defendant.

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C.A. No. 18-355WES

MEMORANDUM AND ORDER DENYING RENEWED MOTION FOR STAY AND
RESETTING PRETRIAL ORDER DEADLINES
This Memorandum and Order addresses Plaintiff’s pending motion to stay (ECF No. 68),
which she filed on May 31, 2022, and has been referred to me for determination.1 Plaintiff’s
motion asks the Court to extend the current stay (which ended on July 6, 2022) indefinitely “until
medical evaluation is provided that states otherwise,” based on her ongoing mental health
treatment at Newport Hospital. ECF Nos. 68 at 2; 67. To support her motion and in compliance
with the Court’s ruling that “Plaintiff bears the burden of showing that there is a pressing need
for entry of an indefinite stay,” ECF No. 67 at 2, Plaintiff represented that she was scheduled for

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Pursuant to the Court’s Orders of May 3 and May 23, 2022, Plaintiff’s first motion for an indefinite stay due to
mental health (ECF No. 54) and her motion to reconsider the denial of an indefinite stay (ECF No. 65) were denied,
but the Court granted Plaintiff’s stay motions to the extent that they sought a temporary stay, ultimately to July 6,
2022. ECF Nos. 61, 67. Following the Order extending the stay, Plaintiff filed her renewed motion for an indefinite
stay, which is the subject of this memorandum and order. ECF No. 68. One week before the current stay was set to
lapse, on June 30, 2022, Plaintiff filed a notice of appeal. ECF No. 79. Since that appeal was launched, she has
filed two more appeals. ECF Nos. 84, 87. In my report and recommendation, which issued on July 12, 2022, ECF
No. 83, I found that the first of the three appeals was taken from unappealable interlocutory orders and is frivolous
and interposed for the purpose of delay; this report and recommendation was adopted by the District Court on July
13, 2022. The two appeals that followed relate to the denial of Plaintiff’s in forma pauperis (“IFP”) application and
also are not taken from appealable final orders; indeed, Fed. R. App. P. 24(a)(5) permits a party to file an IFP
motion in the court of appeals after denial in the district court. Based on the foregoing, notwithstanding that three
appeals are now pending, the Court can and should proceed to resolve the pending motion to stay. Rivera-Torres v.
Ortiz Velez, 341 F.3d 86, 96 (1st Cir. 2003) (district court can proceed, notwithstanding appeal, if appeal is based on
unappealable order or if it otherwise constitutes transparently frivolous attempt to impede progress of case).
Further, an appeal divests the Court of jurisdiction only over those aspects of the case involved in the appeal; the
renewed motion for an indefinite stay has not yet been ruled on and therefore is not involved in the appeal. See ECF
No. 83 at 2 n.3. Accordingly, the Court retains jurisdiction to address the pending motion. Colon-Torres v. NegronFernandez, 997 F.3d 63, 74 (1st Cir. 2021).

a June 7, 2022, evaluation with a psychiatrist and that she would “provide updates as to progress
and disclosures.” ECF No. 68 at 1, 2. Since that time, Plaintiff has filed almost five hundred
pages of medical documents and related materials. ECF Nos. 69, 71, 72, 74-78. The Court has
reviewed all of them. Because they do not support a continuation of the current stay, Plaintiff’s
motion for renewal of the medical stay is denied. In light of the foregoing, the Pretrial Order
deadlines affected by the stay are hereby reset as follows: dispositive motions are due on August
31, 2022, and pretrial memoranda (due only if no dispositive motion is pending) are due on
September 15, 2022.
I.

BACKGROUND
As of May 23, 2022, Plaintiff’s medical documentation established the following:
Plaintiff informed the Court that on May 3, 2022, she had a “meeting with [her]
therapist” and that she would forward a copy of her “medical evaluation” to the
Court as soon as she received it. ECF No. 60 at 1, 3. On May 6, 2022, Plaintiff
filed a copy of a letter, dated May 5, 2022, from a licensed clinical social worker.
ECF No. 62. Among other things, the letter notes Plaintiff’s report of stress from
this litigation, the therapist’s uncertainty of diagnosis and concern for declining
mental health status seemingly caused by an incident during her deposition, based
on which the therapist recommended that Plaintiff present to “Newport Count[]y
Community Mental Health Center for an emergency evaluation.” Id. at 1. As of
yet, the Court has not received any further documentation regarding such a mental
health evaluation. On May 10, 2022, Plaintiff filed a copy of a “[p]rogess
[n]ote[]” from a February 22, 2022, appointment (approximately one month and a
half before the motion to stay was filed) with a nurse practitioner. ECF No. 64.
The note reflects normal mental status observations, but that the nurse practitioner
“[a]dvised Psychology today so she can get an appointment to see a psychologist
and a prescribing provider.” Id. at 4. The Court has not received any
documentation reflecting follow up with a “psychologist” or “prescribing
provider.” Finally, Plaintiff attached to her motion for reconsideration a May 3,
2022, prescription for Trazadone, prescribed by the nurse practitioner, which is an
antidepressant medication. ECF No. 65 at 5-10.

ECF No. 67 at 1 n.2. What follows is based on medical documents Plaintiff has filed since.
Establishing Plaintiff’s baseline mental health status is a Consultative Examination
Report dated January 30, 2018, written by a psychologist (Dr. Adam J. Cox) in connection with
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Plaintiff’s application for Social Security disability benefits. ECF No. 69. As a disability
examiner, Dr. Cox is a denominated expert in analyzing an individual’s ability to perform any
work pursuant to the Social Security Act. See 20 C.F.R. § 404.1513a(b)(1) (“Federal or State
agency medical or psychological consultants are highly qualified and experts in Social Security
disability evaluation”). Based on his examination, Dr. Cox found that Plaintiff has “extremely
poor concentration and follow[]through” and “a high level of emotionality and stress and is
particularly preoccupied with having lost a job where she felt she was harassed over the course
of years.” ECF No. 69 at 1. Dr. Cox’s report reflects Plaintiff’s admission that she had stopped
working in August 2017 because she was “terminated for noncompliance with work rules,” as
well as that her “current episode of treatment began in 2015.” Id. at 1, 2. Regarding activities of
daily living and social functioning, Dr. Cox found Plaintiff able to manage her household,
including the care of an elderly father and to have reasonably good (though limited) social
interactions with family, but a “history of conflict with various treatment providers and
attorneys.” Id. at 2, 3. While he observed “no notable problems with gross comprehension or
retention” and low average intelligence, Dr. Cox noted that Plaintiff’s attention and memory are
“highly scattered” with “severe problems with attention and task persistence that affect virtually
every aspect[] of her life.” Id. For mental health diagnoses, Dr. Cox assessed ADHD, acute
stress disorder, persistent depressive disorder, and cannabis use disorder, mild. Id. at 4.
On mental status examination (“MSE”),2 Dr. Cox found Plaintiff able to engage in logical
communication with “no evidence of panic, psychosis or suicidality,” “able to advocate for

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A mental status examination or MSE is an objective clinical assessment of an individual’s mental ability, based on
a health professional’s personal observation, where “experienced clinicians attend to detail and subtlety in behavior,
such as the affect accompanying thought or ideas, the significance of gesture or mannerism, and the unspoken
message of conversation.” Nancy T. v. Kijakazi, C.A. No. 20-420WES, 2022 WL 682486, at *5 n.7 (D.R.I. Mar. 7,
2022 (internal quotation marks omitted), adopted by text order (D.R.I. March 31, 2022); Lilibeth G. v. Kijakazi,
C.A. No. 20-474WES, 2021 WL 5049377, at *1 n.4 (D.R.I. Nov. 1, 2021), adopted, 2021 WL 5631745 (D.R.I. Dec.
1, 2021).

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herself in basic ways . . . [with] sufficient mental acumen to make longer-term decisions,” and
with normal stream of thought and orientation to person, place and time. Id. at 3. He also found
that she presented with “severe ADHD and stress,” as well as that she was preoccupied with
“what she describes as a long history of harassment at her last workplace.” Id. Ultimately, Dr.
Cox found moderate impairments in the ability to understand, remember and apply information,
moderate to marked impairment in the ability to interact with others and extreme impairment
with respect to concentration, persistence and pace; based on these findings, he opined that she
could not work. Id. at 4. As to prognosis, Dr. Cox opined that, “[h]er mental status seems
unlikely to change in the foreseeable future,” even with the assistance of medication. Id. at 4.
Other evidence Plaintiff has presented establishes that she was found to be fully disabled
and awarded Social Security benefits, although nothing in the record reveals when the award was
made or what was determined to be the date of onset of disability. See ECF No. 66 at 3-4.
As pertinent to the present, Plaintiff’s submissions prior to the renewed motion to stay
reference her exacerbation of symptoms apparently due to trauma caused by an incident during
her deposition held on February 17, 2022, that she understands to have been a heart attack
resulting in the death of the stenographer. ECF No. 47 at 1. For example, this is outlined in a
May 5, 2022, note by a treating social worker3 who diagnosed acute stress disorder, but also
noted “uncertainty of diagnosis and concern for [Plaintiff’s] declining mental health status
(insomnia, question of hallucinations and decreased orientation to time).” ECF No. 62 at 1. The
social worker referred Plaintiff for an emergency evaluation. Id.
Plaintiff has provided a handwritten summary of her resulting recent treatment at
Newport Hospital. ECF Nos. 71 at 1-2; 72 at 1-4. This was not inpatient treatment, but rather

 Plaintiff informed the social worker that the “stenographer collapsed and subsequently died” during her deposition.
ECF No. 62 at 1.
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was treatment in a partial hospitalization program, which consisted of up to three therapy
appointments a day from intake on May 19, 2022, until June 2, 2022, when she was discharged.
ECF Nos. 71 & 72; see ECF No. 71 at 42-49 (discharge summary). Plaintiff filed a page from an
assessment, which notes that she is a “disabled . . . woman” with a “complex personal history,”
whose sleep improved with recent prescription for Trazadone; the unknown writer records
observations of tangential and circumstantial thought process and speech, and a history of opioid
dependence, with methadone treatment having been terminated in May 2020. ECF No. 72 at 5.
A Newport Hospital record dated May 19, 2022, lists pertinent diagnoses as ADHD, anxiety
disorder and severe single current episode of major depressive disorder with psychotic features; a
May 20, 2022, record adds the diagnoses of “Adjustment disorder with mixed anxiety” and
“[d]epressed mood (still evaluating).” ECF No. 72 at 6, 14. Later during treatment, the
diagnoses of “Personality disorder, evaluating” and “Cognitive change” were added. E.g., ECF
No. 72 at 63.
Therapy notes4 reflect that, during the partial hospitalization, Plaintiff consistently
displayed appropriate affect and active and cooperative participation. E.g., ECF No. 72 at 10,
12, 24. An MSE conducted on May 20, 2022, resulted in normal observations, including
generally normal orientation, except for sometimes mildly disorganized thoughts, tangential and
circumstantial associations, thought content focused on recent stressful experiences, with
impaired judgment, insight and attention/concentration. ECF No. 72 at 30. During one session
on May 23, 2022,5 Plaintiff reported that she had been followed by a black SUV and someone
broke into her apartment; her MSE at that session included angry mood and mildly impaired

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The notes reflect that these sessions were via Zoom. E.g., ECF No. 72 at 19-20, 24.

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This session occurred shortly after a wellness visit to Plaintiff by law enforcement triggered by her filing a
potentially threatening statement related to a judicial officer of this Court.

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memory. ECF No. 72 at 44-45. An MSE on May 27, 2022, reflects improvement: “ok” mood,
“[l]ess disorganized” thoughts, tangential/circumstantial associations, “[b]ut improved today,”
impaired judgment, insight, attention/concentration and memory (mild). ECF No. 71 at 4.
Plaintiff’s discharge plan called for referral to a psychiatrist and supportive and acceptance-andcommitment therapy. ECF No. 72 at 33-34. Discharge was on June 2, 2022. ECF No. 71 at 4249.
In her more recent handwritten submissions, Plaintiff advises that a neuropsychological
evaluation may be conducted in the future: “I have appointment w Kathy Benevidies [a nurse
practitioner] in 4 months so she get the neuropsychiatrist evaluation.” ECF No. 74 at 1; see ECF
No. 77 at 1 (referencing evaluation by neuropsychologist).
During the recent course of this litigation, based on the Court’s observations of Plaintiff
during these proceedings and references in various of Plaintiff’s filings (including her medical
records), the Court finds that Plaintiff has been living independently and managing her own
affairs. E.g., ECF No. 81 at 1-8. (Plaintiff sets out detailed description of her household
expenses); ECF No. 53 at 1-2 (Plaintiff sets out detailed description of her household expenses
and avers that she supports two sons). The Court further observes that her court filings have
been consistent with Dr. Cox’s finding that she is “able to advocate for herself in basic ways . . .
[with] sufficient mental acumen to make longer-term decisions,” and with orientation to person,
place and time. ECF No. 69 at 3. For example, she has demonstrated that she was able to
understand the Court’s requirements for how to make filings. Similarly, while the content of her
filings is often tangential and disorganized, it nevertheless remains generally focused on the
matter in hand; for example, in connection with the pending stay motion, she has appropriately
filed relevant medical documents.

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II.

APPLICABLE LAW
The Court “enjoys inherent power to ‘control the disposition of the causes on its docket

with economy of time and effort for itself, for counsel, and for litigants.’” City of Bangor v.
Citizens Commc’ns Co., 532 F.3d 70, 99 (1st Cir. 2008) (quoting Landis v. N. Am. Co., 299
U.S. 248, 254 (1936)) (federal courts have inherent power to stay litigation). This includes
“‘broad discretion to stay proceedings as an incident to its power to control its own docket.’”
Katz v. Liberty Power Corp., LLC, Civil Action No. 18-cv-10506-ADB, 2020 WL 3440886, at
*3 (D. Mass. June 23, 2020) (quoting Clinton v. Jones, 520 U.S. 681, 706-07 (1997)). However,
a stay is an intrusion into the ordinary process of administration and judicial review and is not a
matter of right. Id. “[S]tays cannot be cavalierly dispensed: there must be good cause for their
issuance; they must be reasonable in duration.” Marquis v. F.D.I.C., 965 F.2d 1148, 1155 (1st
Cir. 1992) (emphasis added). Plaintiff bears the burden of showing that there is a pressing need
for entry of an indefinite stay. Nken v. Holder, 556 U.S. 418, 433-34 (2009); Landis, 299 U.S. at
255; In re Lernout & Hauspie Sec. Litig., Civil Action Nos. 00-11589-PBS, 02-10302-PBS, 0210303-PBS, 02-10304-PBS, 2003 WL 23341390, at *2 (D. Mass. June 12, 2003). Without such
a showing, entry of an indefinite stay would be an abuse of discretion. See Landis, 299 U.S. at
255; In re Lernout & Hauspie Sec. Litig., 2003 WL 23341390, at *2. The Court must also
consider the serious prejudice to the defendant of an open-ended stay, including the fading
memories of witnesses and the costs of sustaining its ability to defend the case. See generally
Galindo v. Am. Paramedical Servs., Inc., No. 04-01108-CV-W-FJG, 2008 WL 2620885, at *2
(W.D. Mo. June 30, 2008). Thus, a temporary stay should not be continued at the request of a
mentally ill plaintiff who is not likely to improve. At least one court has held that, if there is not
a likelihood of sufficient recovery during a time-limited stay, the action should be dismissed. Id.

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at *1-2 (employment discrimination claim under Title VII dismissed without prejudice because
plaintiff had requested continuing incompetence-based stays protracting case over two years due
to her inpatient mental health hospitalization with no prospect of change).
Consistent with these principles, if a litigant is found to be mentally “incompetent,” the
Federal Rules of Civil Procedure do not authorize an indefinite stay. Rather, when an
unrepresented litigant is found to be “incompetent,” Fed. R. Civ. P. 17(c)(2) provides that a
“court must appoint a guardian ad litem – or issue another appropriate order – to protect . . . [an]
incompetent person who is unrepresented in an action”; the Rule stipulates that the individual’s
competency to sue or be sued is determined “by the law of the individual’s domicile.” Fed. R.
Civ. P. 17(b)(1); see Graham v. Teller Cty., 632 F. App’x 461, 465 (10th Cir. 2015). Because
Plaintiff is a domiciliary of Rhode Island, ECF No. 1 ¶ 5, the Court must look to Rhode Island’s
definition of what is incompetency sufficient to support the appointment of a guardian ad litem
to determine whether Fed. R. Civ. P. 17(c) is applicable.
Rhode Island law defines incompetency in an array of civil contexts. For starters,
because the guardian displaces the ward’s ability to make her own decisions, Rhode Island law
sets the bar high for appointment of a guardian ad litem for an adult; Rhode Island courts are
cautioned to proceed with care:
The court shall not appoint a guardian or limited guardian if the court finds that
the needs of the proposed ward are being met or can be met by a less restrictive
alternative or alternatives. The court shall authorize the guardian to make
decisions for the individual in only those areas where the court finds, based on
one or more decision making assessment tools, that the individual lacks the
capacity to make decisions.
R.I. Gen. Laws § 33-15-4(a)(1); see R.I. Gen. Laws § 33-15-47 (form used for guardianship
petition focuses on whether individual lacks decision-making ability). Consistent with this
principle, the Rhode Island Supreme Court limns the civil capacity to make a contract as follows:
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Mere mental weakness, or inferiority of intellect, will not incapacitate a person
from making a valid contract; nor is it easy to define the state of mind which will
have this effect. There must be such a condition of insanity or idiocy as, from its
character or intensity, disables him from understanding the nature and effect of his
acts, and therefore disqualifies him from transacting business and managing his
property.
Sosik v. Conlon, 91 R.I. 439, 442, 164 A.2d 696, 698 (1960) (internal quotation marks omitted).
Similarly, Rhode Island courts have considered the term “unsound mind” or incompetence in
relation to tolling the statute of limitations and held that it means conditions of incompetency or
inability to manage everyday affairs. Smith v. O’Connell, 997 F. Supp. 226 (D.R.I. 1998), aff’d
sub nom, Kelly v. Marcantonio, 187 F.3d 192, 198 (1st Cir. 1999) (Rhode Island Supreme Court
defines “unsound mind” as a “condition that renders an individual legally incompetent or
incapable of managing his or her everyday affairs”); Miller v. R.I. Hosp., 625 A.2d 778, 785
(R.I. 1993) (describing “unsound mind” as a form of legal incompetency characterized by “[t]he
inability to ‘govern’ one’s self and manage one’s other affairs”).
While no cases were found applying Rhode Island law of incompetency in the context of
Fed. R. Civ. P. 17(c), decisions from other jurisdictions are instructive. These make clear that
the Rule is appropriately invoked only in the most severe of circumstances. For example, in
Hammond v. Bledsoe, No. 3:CV-12-0242, 2012 WL 3779355 (M.D. Pa. Aug. 30, 2012), the pro
se plaintiff asserted that he was incompetent and suffered from schizophrenia and personality
disorder, yet he failed to present verifiable evidence of these assertions; the court held that the
Fed. R. Civ. P. 17 duty was not triggered by these facts. Id. at *3; see, e.g., Hudnall v. Sellner,
800 F.2d 377, 385 (4th Cir. 1986) (Rule 17 contemplates incompetence that affects a person’s
ability to manage his/her own affairs); James v. Hamaker, Civil Action No. 15-cv-02425-GPG,
2016 WL 97767, at *3 (D. Colo. Jan 8, 2016) (plaintiff asserted mental illness but medical
records submitted did not reflect mental incompetence; Rule 17 duty not triggered). Nor is the
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District Court required to inquire sua sponte into a pro se plaintiff’s mental competence based on
a litigant’s bizarre behavior alone; rather, the Rule’s duty of inquiry arises only if the Court is
presented with verifiable evidence of incompetence. Powell v. Symons, 680 F.3d 301, 307 (3d
Cir. 2012); see Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003)
(holding that there is no necessary relationship between mental incompetence warranting
appointment of legal representative and mental derangement or personality disorder that may
cause utterly bizarre and destructive conduct in litigation; Rule 17(c) does not “require a court to
attempt to distinguish between the truly incompetent and those who – because of a personality
disorder or other cause – behave in a foolish or bizarre way, hold irrational beliefs, or are simply
inept”).
III.

ANALYSIS
It is clear from Dr. Cox’s Report that Plaintiff suffers from longstanding (since at least

2015) and very serious – rendering her unable to perform any work – impairments of attention
and concentration, exacerbated by emotionality and stress due to her preoccupation with the loss
of her job. Dr. Cox’s 2018 evaluation further establishes that Plaintiff’s impairment is not
remediable with medication and that her mental status is unlikely to change despite treatment.
The more recent records corroborate Dr. Cox’s findings in that Plaintiff was consistently
observed during treatment at Newport Hospital to have tangential and circumstantial thought
associations with impaired attention/concentration.
Plaintiff’s recent mental decline, seemingly caused by events that occurred during her
February 17, 2022, deposition in this case, was addressed through the relatively conservative
intervention of a two-week partial hospitalization, with discharge over a month ago. Consistent
with Dr. Cox’s finding that Plaintiff’s basic mental impairment is unlikely to improve with

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treatment, the Newport Hospital treating record does not reflect material improvement. Rather,
Plaintiff’s treating providers at Newport Hospital concluded that Plaintiff did not require further
partial hospitalization and that treatment should continue on an outpatient basis, which it has
since Plaintiff was discharged on June 2, 2022.
Nothing in the medical records Plaintiff has submitted in support of the stay suggests that
a continuation of it would lead to remediation of Plaintiff’s baseline mental impairment; rather,
the evidence establishes that further delay for further mental health treatment is not going to
change anything. See Galindo, 2008 WL 2620885, at *1-2 (temporary stay should be lifted
when no prospect that further delay will lead to remediation of mental impairment). At the same
time, the record is also clear that Plaintiff has consistently retained the ability to manage her
everyday affairs and is far from “incompetent” as defined in Rhode Island law. See, e.g., ECF
No. 69 at 2-3 (Dr. Cox opines that Plaintiff is able to manage household and retains ability “to
advocate for herself in basic ways . . . [with] sufficient mental acumen to make longer-term
decisions”); ECF No. 71 at 42-49 (Plaintiff discharged on June 2, 2022, to outpatient treatment).
Therefore, a Fed. R. Civ. P. 17(c) guardian ad litem appointment would be inappropriate.
Finally, the prejudice to Defendant of continuing the stay is significant. As Defendant argued in
its opposition to the motion to stay, this case relates to Plaintiff’s termination of employment on
August 1, 2017, almost five years ago, and the case has been protracted and delayed by
Plaintiff’s numerous motions to enlarge time, many motions to stay the case, and (recently) by
her filing of an interlocutory appeal that was dismissed for lack of jurisdiction.6 See ECF No. 57
¶¶ 8, 11. The Court also observes that Plaintiff’s many filings in connection with her quest for a
stay have raised a question whether Plaintiff can prevail on the merits of the limited claims in

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Three new appeals are now pending.

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issue in this case,7 yet the summary judgment deadline has been repeatedly extended by Plaintiffinitiated delays.
In sum, I find that Plaintiff’s filings reveal that she has a longstanding and serious mental
health condition unlikely to be remediated by medical treatment that apparently has made it
impossible for her to work but that does not render her incompetent or incapacitated from
prosecuting this case as defined in the law of Plaintiff’s domicile (Rhode Island). Therefore,
continuing the temporary stay that was imposed to give Plaintiff time to address an acute flare of
symptoms is not appropriate, particularly in light of the serious prejudice caused by ongoing
delay to Defendant.
IV.

CONCLUSION
Based on the foregoing, Plaintiff’s motion for renewal and indefinite continuation of the

stay until a “medical evaluation is provided that states otherwise” (ECF No. 68 at 2) is denied.
The temporary stay ended on July 6, 2022, and this litigation shall proceed. The Pretrial Order
deadlines affected by the temporary stay are hereby reset as follows: dispositive motions are due

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The only claims in issue in this case are that Defendant violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., when it terminated Plaintiff’s employment on August 1, 2017, (1) because she is female;
and (2) in retaliation for having engaged in the protected activity of filing two informal complaints and one formal
complaint of discrimination against her direct supervisor. ECF No. 1 ¶¶ 13, 24-25, 32, 35-36. Yet on January 30,
2018, Plaintiff admitted to Dr. Cox in connection with her Social Security disability application that “she was
terminated for noncompliance with work rules.” ECF No. 69 at 1. Further, the finding that she was fully disabled
and unable to perform any work potentially as early as some time in 2017, would raise the question whether Plaintiff
can establish a prima facie case of discrimination under Title VII. If (and the record does not reveal whether this is
accurate) she was adjudicated to be fully disabled with onset prior to the date of termination, it is not clear how she
can show that she was “qualified for, and adequately performed, her job” as of that date. Pagano v. Frank, 983 F.2d
343, 348 n.7 (1st Cir. 1993) (internal quotation marks omitted); see, e.g., Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44-47 (2d Cir. 2015) (application for and award of Social Security disability benefits on grounds of full
disability with onset prior to termination supports summary judgment in favor of employer on Title VII claim of
termination based on race and retaliation); Brewer v. Petroleum Suppliers, Inc., 946 F. Supp. 926, 931 & 931 n.5
(N.D. Ala. 1996) (determination that plaintiff was disabled prior to discharge prevents her from receiving back pay
for retaliatory discharge under Title VII; discriminatory actions taken after plaintiff became fully disabled are
barred). However, until presented with a motion for summary judgment, the Court cannot assess these issues.

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on August 31, 2022, and pretrial memoranda (due only if no dispositive motion is pending) are
due on September 15, 2022.
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
July 14, 2022

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